James Duffy v. Her Majesty’s Advocate [2015] HCJAC 29

Appeal against conviction and sentence:- On 14 March 2014, at Glasgow Sheriff Court, following a trial on indictment the appellant was found guilty of a charge of assault to severe injury, permanent disfigurement and to the danger of life by repeatedly striking a male, Richard Watson, on the head and body with a knife. On 4 April 2014 the appellant was sentenced to an extended sentence of eight years, back-dated to 14 March 2014, comprising a custodial term of five years and an extension period of three years. The appellant appealed against conviction and sentence on the following grounds:- (1) directions given by the trial sheriff relating to the evidence of Constable Dick, who stated that the appellant told him that he had “fallen”; (2) the absence of directions relating to provocation; and (3) that the sentence imposed was excessive. At the trial the appellant had lodged a special defence of self-defence, however, he did not give evidence nor was any evidence led on his behalf. The Crown relied upon the complainer and a CCTV recording from a security camera, to corroborate the evidence of complainer. In their respective speeches to the jury neither the procurator fiscal or the defence solicitor referred to a verdict of guilty under provocation. Here it was submitted on behalf of the appellant that in relation to the sheriff’s directions regarding PC Dick and what the appellant had said about having fallen and there being no reference by him of being assaulted by the complainer the sheriff was wrong to highlight and speculate as to why the appellant had not been candid with the police. In relation to the issue of provocation it was submitted that the issue of gross disproportion was a matter for the jury and if there was a reasonable evidential basis for the view that the use of a knife in the particular circumstances was not disproportionate, then the issue of provocation should go to the jury. In relation to the sentence imposed it was submitted that it was excessive. Here the court considered that there were no misdirections in relation to the appellant’s conversation with PC Dick and nothing said detracted from the sheriff’s clear directions relating to credibility and reliability and that the conversation could not be treated as corroborative of the complainer’s account. In relation to the issue of provocation the court considered that the issue is very much one for a jury and it is only when a court is able to conclude that no reasonable jury could, on the evidence, reach the view that there was provocation, should directions on provocation be omitted. In the present case there was evidence upon which a jury could hold that provocation was made out and whether the use of a knife in a fist fight is disproportionate will generally depend upon the facts of the case. Here the court considered that the lack of directions resulted in a miscarriage of justice, however, on the basis that the jury rejected the special defence of self-defence the issue was not the question of guilt but the degree of guilt and the appropriate disposal of the appeal was to add the rider “under provocation”. Given the court’s decision in relation to there being a finding of provocation the court quashed the extended sentence and substituted a custodial sentence of three years together with a one year supervised release order.