Thomas Telford v. Her Majesty’s Advocate [2018] HCJAC 73

Note of appeal against conviction:- On 29 November 2017, at Livingston High Court, the appellant was convicted after trial of the following charges (all committed whilst the appellant was on bail from Glasgow Sheriff Court):- (1) attempted murder by repeatedly striking CT with a knife; (2) assault on LH by holding a knife to her throat; and (3) attempting to defeat the ends of justice by disposing of the knife used in charge 1. On 12 January 2018, following the obtaining of a Criminal Justice Social Work Report, the trial judge sentenced the appellant to 9 years and 6 months imprisonment on charges 1 and 2, 6 months being attributable to the bail aggravations, and 6 months was imposed on charge 3 to run consecutively to charges 1 and 2. At the trial the appellant had lodged a special defence of self-defence in respect of charge 1, however, he did not give evidence. The trial judge directed the jury that self-defence could not apply. The appellant appealed against his conviction on the grounds that the trial judge erred in not allowing the self-defence to remain for the jury’s consideration. It was submitted on behalf of the appellant that he was entitled to rely on a mixed statement which he had given under caution to the police when he admitted stabbing the complainer “to save my sell ... it was either me or him ... it wasnae gonna be me ... I could have been lying there deid ...”. It was submitted on behalf of the appellant that if there had been a possibility that the jury could have been satisfied that the appellant had acted in self-defence, then such a possibility ought to have been left open to them. It was further submitted that the trial judge had erred in concluding that the appellant had a reasonable means of escape open to him and the trial judge had failed to take into account the dynamic and fast moving nature of the incident. In addition, it was contended that the trial judge ought to have directed the jury on provocation in light of the complainer’s own evidence that he had punched the appellant and the jury would have been entitled to accept that the appellant had lost control immediately and retaliated instantly and on the basis of what the appellant had said during his interview the jury could have concluded that the complainer had been in possession of the knife initially and was going to get another weapon when the appellant stabbed him in the back. On behalf of the Crown, it was submitted that, on the evidence, the trial judge was correct to withdraw self-defence and not to give directions on provocation. Here the court refused the appeal. The court reiterated that withdrawing a special defence and not giving directions on provocation, should only be done if there is no evidence from which such a conclusion could reasonably be drawn. The court here took the view, as the trial judge had, that what the appellant did after he had disarmed the complainer, lacked the requisite immediacy following any attack by the complainer and that the appellant’s response was disproportionate to any threat posed by the complainer. In addition, the court considered that there may have been a reasonable means of escape open to the appellant. In relation to the question of provocation, the court considered that, even on the appellant’s own account at interview, it could not be said he had lost control and acted in hot blood. In all pf the circumstances the court could not identify any fault in the trial judge’s decision to withdraw the self-defence and not give directions on provocation.