Kenneth Thomson v. Her Majesty’s Advocate [2020] HCJAC 49

Note of appeal against conviction:- On 29 October 2019, following a trial on indictment at Edinburgh Sheriff Court, the appellant was convicted of 3 charges relating to an incident which occurred on 13 September 2018 in Edinburgh:- (1) an assault Osman Celik by brandishing a bottle (the jury deleted the words “repeatedly punch and kick him on the head and body, strike him on the head with a bottle or similar item” which were libelled in the original charge); (2) having an offensive weapon, a glass bottle, in a public place without reasonable excuse or lawful authority contrary to section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995; and (3)  behaving in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm by brandishing a broken bottle and being aggressive towards Osman Celik whilst in the company of Agnes Gray (aged 86) and causing her to suffer fear and alarm contrary to Section 38 (1) of the Criminal Justice and Licensing (Scotland) Act 2010. The appellant was on bail at the time of the offences. He was convicted of two further charges which were not subject to appeal. The appellant was sentenced to 12 months imprisonment on charges 1, 2 and 3 with 3 months attributable to the bail aggravation. In advance of the trial the appellant had lodged a special defence of self-defence in relation to all three charges and at trial the appellant gave evidence in support of the special defence. The appellant appealed against his conviction in relation to charges 1, 2 and 3. The first ground of appeal related to criticisms of the trial sheriff’s directions to the jury in relation to the appellant’s evidence. A second ground of appeal contended that the appellant could not have been convicted of both charges 1 and 3 as they involved the same species facti. In his charge to the jury the sheriff directed the jury that self-defence was not a competent defence to either charge 2 or 3. In relation to charge 2 the sheriff directed the jury that a different defence was available to the appellant, namely, reasonable excuse. The sheriff directed the jury that fear or apprehension of an attack is not a reasonable excuse for arming yourself “…and the law is very firm that fear of an attack is not a reasonable excuse for having an offensive weapon.” In relation to charge 3 the sheriff directed the jury that for the Crown to establish the charge it needed to prove that the appellant behaved in a threatening or abusive manner and that the behaviour would be likely to cause a reasonable person to suffer fear and alarm and that the appellant intended to do so or was reckless as to whether he did or did not. The sheriff reiterated that self-defence was not a defence open to the appellant, however, went on to explain that there was a defence to charge 3, namely, whether or not any proven conduct was reasonable in the circumstances. His directions included the following:- “…having decided what you think he did you ask yourself whether that conduct was reasonable in all the circumstances…if it’s not then he does not have the defence available to him…”. On behalf of the appellant, referring to Lunn v. HMA 2016 SLT 98, it was submitted that the sheriff was wrong to direct the jury that fear of an attack cannot provide a reasonable excuse for having an offensive weapon. It was submitted that it was the appellant’s position that he had picked up and smashed the bottle only on seeing the complainer taking out what he thought to be a knife and he did so only to prevent the complainer attacking him with it and the directions deprived him of his reasonable excuse defence, namely, that he was acting to defend himself in fear of an imminent attack and in essence the directions given amounted to an instruction to the jury to convict the appellant of charge 2. Furthermore, that material misdirection not only resulted in a miscarriage of justice in relation to charge 2 but was of such significance that it also tainted the jury’s consideration of charges 1 and 3 and the conviction in relation to those charges should also be quashed. In relation to the second ground of appeal it was submitted that the actus reus of charge 3 was the same as that of charge 1 in that the elderly lady referred to in charge 3 was only a witness to charge 1 and the appellant was therefore being convicted of the same conduct on two occasions. Reference was made to Rodger v HMA 2015 JC 215 where it was stated that the court will not convict a person of more than one offence arising out of the same facts which must necessarily be established to constitute the offence in question. On behalf of the Crown it was conceded that the sheriff had misdirected the jury in relation to charge 2, however, the jury had received proper directions in relation to self-defence for charge 1 and the jury had heard all of the evidence and in returning the verdict they had it was clear the jury had rejected self-defence in charge 1 and as such no miscarriage of justice had taken place in relation to charge 2. It was further submitted that the offences in charges 1 and 3 were different in character and the facts necessary for each were different and a conviction for both charges 1 and 3 was appropriate. Here the court granted the appeal and quashed the conviction in relation to charges 1, 2 and 3.  In relation to the alleged misdirections in relation to charge 2 the court considered the sheriff made a material misdirection in relation to what amounted to reasonable excuse for possession of an offensive weapon. The court went on to consider whether that misdirection introduced a fatal flaw into the jury’s assessment of the admitted use of the broken bottle. In light of the deletions made by the jury it appeared that they preferred the evidence of the appellant and was the context in which the misdirection in relation to charge 2 had to be considered. The court stated that in relation to self-defence in relation to charge 1 it is for the Crown to meet that defence and satisfy the jury beyond reasonable doubt that it should be rejected. The statutory defence provided for in section 47(1A) of the Criminal Law (Consolidation) (Scotland) Act 1995 places a legal burden on an accused person to establish the defence, the standard of proof required being the balance of probabilities. In addition, the court stated that the statutory defence provided for by section 38(2) of the 2010 Act is also wide enough to include the conduct of an accused person who claims that he was acting in self-defence. As such the court considered that it was necessary for the sheriff to separate out the different considerations which applied each charge and in considering that such directions were appropriate, further underlined the impact of the sheriff’s erroneous directions in relation to charge 2 on the jury’s consideration of the other charges. The court considered that the sheriff’s direction that:- “…the law is very firm that fear of an attack is not a reasonable excuse for having an offensive weapon” overstated matters and the jury were being asked too much to understand that despite what they were told by the sheriff an accused could still be assessed as acting reasonably by brandishing an offensive weapon in fear of an attack in the context of an assault charge. The court considered that the same issue arose in relation to charge 3 where acting in self-defence for the purposes of preventing an assault is almost bound to involve aggressive behaviour and the court considered that a jury would be faced with a near impossible task in judging whether the appellant’s conduct in relation to charge 3 amounted to reasonable behaviour if they were proceeding upon the understanding that “as a matter of law” it was not reasonable to arm yourself with an offensive weapon even where you were under attack. In light of the deletions made by the jury in relation to charge 1 the court was of the view that it appeared the material misdirection in relation to charge 2 had introduced a fatal flaw into the jury’s consideration of the appellant’s conduct. In light of the decision of the court there was no need to consider the second ground of appeal.