Lee McAulay v. Her Majesty’s Advocate [2018] HCJAC 53

Note of appeal against conviction and sentence:- On 27 July 2017, at Glasgow High Court, the appellant was found guilty after trial of a charge of culpable homicide. The appellant was also convicted of a charge of being in possession of a knife contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 and a charge of attempting to defeat the ends of justice by washing his clothes and instructing a witness, PW, to burn her clothes. The appellant had been indicted and proceeded to trial on a charge of murder, however, the Advocate depute reduced the charge to one of culpable homicide at the close of the Crown case. The appellant was sentenced to 9 years detention on the culpable homicide charge, 1 year in relation to the possession of a knife charge and 6 months in relation to the attempt to defeat charges which sentences were to run concurrently with each other. The appellant appealed against his convict on on the following grounds:- (1) the trial judge ought to have given the jury directions in relation to provocation (albeit it was conceded that this could only have impacted upon sentence); and (2) that the trial judge had erred in directing the jury that fatal force could not be used to repel an attack that was not life threatening and no definition of what amounted to fatal force was given. The trial judge directed that only in very exceptional circumstances could a blunt force attack be met with the use of a knife and it was contended there was no such requirement of exceptionality. On behalf of the Crown it was submitted that it had been accepted there had been provocation which resulted in the charge being reduced at the close of the Crown case. The jury had been provided with an explanation about why there had been such a reduction in the charge and, as such, it was unnecessary for the trial judge to direct the jury on provocation. In relation to the issue of self-defence the jury were not prevented from considering self-defence only that allowance had to be made for the heat of the moment and any violence used had to be measured against that used or threatened by the deceased and that the example of a blow by a fist not justifying retaliation with a knife was given for illustrative purposes only. It had been made clear that if the jury believed the appellant that it was not his knife and they believed him then they should acquit him, however, it had been accepted on behalf of the appellant that if it was the appellant’s knife he would be bound to be convicted. It was clear on the verdict of the jury that they had rejected the appellant’s claim of self-defence. Here the court refused the appeal. The court considered that it was unnecessary for the trial judge to give the jury directions in relation to provocation as it had already been made out and accepted by the Crown. The only possible relevance of a finding of provocation would be in sentence and there was nothing to prevent submissions being made on provocation when it came to sentencing. In relation to the criticisms made of the trial judge’s directions on self-defence the court considered that the directions given were appropriate. The question of self-defence had been covered in both speeches and the issue of the prior possession of the knife was critical to it. The court stated that, generally, it is correct to say that an obviously non- life threatening attack, like a punch, cannot be met with the use of fatal force by stabbing with a knife and it is only in exceptional circumstances that it may be assessed as self-defence. The court noted that the critical issue of who had been in possession of the knife prior to the stabbing was decided by the jury in favour of the Crown and, as such, a verdict of was inevitable. In relation to the appeal against sentence it was submitted that the trial judge placed insufficient weight on the age of the appellant and roles played by the deceased and JM who had done more than initiate the incident. It was further submitted that there was only one stab wound and it was in the groin area which had been inflicted in the spur of the moment. In relation to the appellant’s personal circumstances it was submitted that he had had a number of difficulties as a child and been the subject of domestic abuse and bullying at school. Since his conviction he had completed various courses in custody and had expressed remorse for the death of the deceased. Here the court allowed the appeal against sentence having regard to the age of the appellant at the time of the commission of the offence and the sentence of 9 years detention was quashed and a period of 7 years detention was substituted.