Shaun Darroch Ferguson v. Her Majesty’s Advocate [2015] HCJAC 89

Note of appeal against conviction and sentence:- On 29 January 2015, at Dunfermline Sheriff Court, the appellant was convicted after trial on indictment of a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and an assault to severe injury and permanent disfigurement both committed whilst the appellant was on bail. The appellant appealed against his conviction on one ground, namely, that the trial sheriff erred in failing to direct the jury in relation to provocation which failure resulted in a miscarriage of justice. The trial sheriff in his original report to the court had not fully addressed the issue of whether or not there was an evidential basis for provocation to go to the jury. The court invited the trial sheriff to consider whether, given the decision in Duffy v HMA [2015] HCJAC 29, whether he considered there was an evidential basis for a finding of provocation and whether he should have raised the issue of provocation with the jury. The court also wanted to know from the sheriff which of the two conflicting versions of events he had sentenced the appellant on. The sheriff responded with a further brief report in which he confirmed that there was no evidential basis upon which he was required to raise the issue of provocation and that he had sentenced the appellant on the complainer’s version of the incident. On behalf of the appellant it was submitted that, whilst provocation had not been put in issue either by counsel representing the appellant or by the procurator fiscal depute, if the jury decided it was not a case of self-defence, it was open to them to find that the appellant had been acting under provocation as a matter of law. It was submitted that on one view of the evidence, the essential components of provocation were all present, namely:- (1) the appellant must have been attacked physically or believe that he was about to be attacked and reacted to that; (2) he must have lost his temper and self-control immediately; (3) he must have retaliated instantly and in hot blood; and (4) the violence used by the accused in retaliation must be broadly equivalent and proportionate to the violence exhibited towards him. On behalf of the Crown it was submitted that there was no evidential basis that the appellant had been acting under provocation and the defence of self-defence and the mitigation provided by provocation were different and directions on provocation were not automatic in every case where self-defence was pled. In relation to the particular circumstances of the case it was submitted that the appellant had issued threats, had left the safety of his home and had responded to any threat disproportionately by repeatedly stabbing the complainer with a knife. Here the court allowed the appeal to the extent of adding a rider to the assault conviction that he was acting “under provocation”. The court reaffirmed that where there is a guilty verdict available which is more favourable to the appellant than the charge on the indictment fairness requires that the jury is given the option of returning that verdict if they decide it is appropriate to do so having regard to the evidence. The court commented here that a trial judge is only obliged to direct the jury on provocation if a reasonable jury having heard the evidence may find the essential elements of provocation to have been made out. The court took the view here that the information provided by the sheriff in his two reports was insufficient to enable the court to hold that the sheriff had been entitled to exclude provocation and to that extent there was a risk that a direction on provocation ought to have been given. Having regard to the previous convictions of the appellant and the nature of the assault the court considered that any miscarriage of justice could be remedied by quashing the sentence of 5 years imprisonment and imposing a sentence of 4 years and 6 months imprisonment.