Laura Lunn v. Her Majesty’s Advocate [2015] HCJAC 103

Note of appeal against conviction:- The appellant went to trial on indictment at Edinburgh Sheriff Court in relation to four charges:- (1) a statutory breach of the peace; (2) an assault by punching; (3) an assault with the use of a bottle; and (4) having in a public place without a reasonable excuse or lawful authority an offensive weapon, namely a broken glass bottle, contrary to section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The jury acquitted the appellant of charges 1 and 3 and found her guilty of charge 2 under provocation and guilty of charge 4. The appellant appealed against her conviction in respect of charge 4 and, in particular, in relation to whether the trial sheriff in his charge allowed the jury to fully consider whether or not the appellant had a reasonable excuse for being in possession of an offensive weapon. It was the appellant’s position at trial that in relation to charge 3 she was acting in the self-defence of another, namely, her partner. The appellant’s position was that she was in possession of the broken bottle, having picked it up during the incident and brandished it in defence of her partner who was under attack and that amounted to a reasonable excuse for possession of the bottle. During the course of the sheriff’s charge the jury were directed that fear of an attack was not a reasonable excuse for having possession of an offensive weapon. It was submitted on behalf of the appellant that the sheriff should have directed the jury that self-defence could be a reasonable excuse if an attack was imminent or ongoing and that misdirection resulted in a miscarriage of justice as there was a real possibility that the jury might reasonably have returned a different verdict if they had been properly directed. Here the Crown conceded the appeal following oral submissions. The Crown position was that whilst taking possession of an offensive weapon in anticipation of or fear of future violence would not constitute a reasonable excuse, the situation would be different if, for example, a person took possession of a weapon during an incident whilst under attack, for the purpose of discouraging further violence. In the circumstances of the present case there was evidence, if the jury accepted it, that the appellant had come under attack and had taken possession of the bottle in an attempt to halt further attack and, as such, the trial sheriff ought to have directed the jury on the issue. The conviction in relation to charge 4 was quashed.