David Ditchburn v. Her Majesty’s Advocate [2020] HCJAC 55

Note of appeal against conviction:- On 15 May 2019, following a trial at Edinburgh High Court, the appellant was found guilty of 4 charges including charge 5:- “On 9 or 10 August 2018 at Flat 2…you … did assault John Ashwood and did strike him on the head to his severe injury and you did kill him...”. The appellant appealed against his conviction it being contended that the trial judge misdirected the jury in relation to the definition of culpable homicide as it applied to charge 5. The basis of the Crown case throughout the trial had been that the appellant was responsible for a deliberate assault upon the deceased and the defence case was advanced to reflect that. During the trial judge’s directions to the jury, however, the possibility of a guilty verdict based upon the appellant’s “reckless or grossly careless” conduct was introduced. It was accepted by both the trial judge and the respondent that such reference amounted to a misdirection in law and the issue in the appeal was whether the misdirections were material and resulted in a miscarriage of justice. It was submitted on behalf of the appellant that the only basis upon which the appellant could be convicted of the charge was that the jury accepted that an assault caused the death and the assault had to consist of deliberate conduct on the part of the appellant. It was submitted that the references by the trial judge in her directions to the jury to recklessness and gross carelessness were irrelevant to the crime charge with neither the Crown nor the defence making any reference to these concepts in their respective speeches and there was a realistic possibility that the appellant may have been convicted on an erroneous basis in relation to the necessary mens rea. On behalf of the Crown it was submitted that whilst there had been a misdirection the whole charge had to be read in the context of the rest of the trial and the misdirection did not amount to a miscarriage of justice. It was submitted that the jury would have understood what was required to constitute an assault in relation to charge 5. Here the court allowed the appeal. The court stated that there is a clear distinction in the means rea required for causing death by reckless conduct, as opposed to an assault and the offence libelled in charge 5 was one of assault. The court noted that the trial judge repeatedly linked the crime of assault with recklessness and gross carelessness in her directions which was likely to confuse the jury and may have provided the jury with a route to conviction which was not open to them in light of the crime charged and the issues at trial. The court, following a motion by the Crown, granted authority for a fresh prosecution in relation to charge 5. The court went on to comment upon the importance of charges being specifically tailored to the issues at trial and the particular circumstances of the case and that the jury manual “is no more than a first port of call providing a useful checklist of points for judges to bear in mind…”.