Robert Urquhart v. Her Majesty’s Advocate [2015] HCJAC 101

Note of appeal against conviction:- The appellant was convicted after trial on indictment of a charge of assault and a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. A special defence of self-defence had been lodged on behalf of the appellant which the sheriff directed the jury to disregard in relation to the section 38(1) charge. The court at the appeal considered the issue of whether the special defence of self-defence was available in relation to a charge under section 38(1) of the 2010 Act and also whether the defence available under section 38(2) of the 2010 Act imposes a legal burden on an accused as opposed to an evidential one. It was submitted on behalf of the appellant that self-defence could be relevant to a charge under section 38(1) just as it could be in relation to a common law charge of breach of the peace and the sheriff had been in error in directing the jury to disregard it. In relation to the issue of whether the statutory defence under section 38(2) imposed a legal or evidential burden upon the appellant it was submitted that section 38(2) imposed an evidential burden on an accused person, rather than a legal burden, and the sheriff had erred in directing the jury that they required to be satisfied that the appellant had established the defence on a balance of probabilities. The court considered that the sheriff did not misdirect the jury when stating that the special defence of self-defence had no relevance to the section 38(1) charge. The court observed that whilst such a charge is often referred to as a statutory breach of the peace there are significant differences between the two offences. An offence under section 38(1) is committed if:- (1) the accused behaves in a threatening or abusive manner; (2) his conduct would cause a reasonable person to suffer fear and alarm, and (3) he intended his conduct to cause fear and alarm or he was reckless as to whether or not it would do so. The court considered that the special defence of self-defence did not have any relevance to the section 38(1) offence. In relation to the issue of whether the burden was a legal or evidential burden the court considered that the trial sheriff had misdirected the jury in that any burden on the appellant was simply evidential rather than legal, however, the misdirection did not result in a miscarriage of justice and the appeal was refused.