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Scottish High Court of Justiciary Decisons


You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Lieser v. Her Majesty's Advocate [2008] ScotHC HCJAC_42 (25 July 2008)
URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_42.html
Cite as: 2008 SCCR 797, [2008] ScotHC HCJAC_42, 2008 SCL 1050, [2008] HCJAC 42, 2008 SLT 866, 2008 GWD 26-412

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Kingarth

Lord Eassie

Lord Marnoch

 

 

 

 

 

 

 

[2008] HCJAC 42

Appeal No: XC567/04

 

OPINION OF THE COURT

 

delivered by LORD KINGARTH

 

in

 

NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE

 

by

 

JAMES LIESER

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

 

Respondent:

 

_______

 

 

Act: Shead; Lindsays

Alt: McCallum, A.D.; Crown Agent

 

25 July 2008

[1] On 13 July 2004 at the High Court in Glasgow the appellant was convicted of a charge that "on 23 August 2003 at Helenvale Street, Parkhead, Glasgow you ... did assault Steven Collins, then residing at 25 Fairbairn Path, Bridgeton, Glasgow and repeatedly strike him on the neck and body with a knife or similar instrument and did murder him". On the same date he was sentenced to life imprisonment, with the punishment part being fixed at twelve years. He has appealed to this court against his conviction and sentence. The court has now heard submissions in respect of the former.

[2] The circumstances surrounding the death of the deceased, and the evidence on which the Crown sought to rely, are fully set out in the report of the trial judge. It is enough for present purposes to record that the Crown sought to rely on evidence that prior to 23 August 2003 the appellant had made certain threats, apparently arising out of a family dispute, extending to threats to stab and kill the deceased if he was found in Parkhead. On the day in question the deceased went, along with a friend, to a first floor flat occupied by Kevin Leitch in Helenvale Street to purchase drugs. Shortly after the deceased and the occupier of the flat were seen to talk amicably at or near to the entrance to the flat, the deceased was there stabbed repeatedly by the appellant, who had been in the flat. He sustained a number of stab wounds. The main, and fatal, injury was to the neck. This wound had severed the muscle and the major vein in the neck, travelling approximately 10cms horizontally, backwards and to the left. The cut to the vein would have caused torrential bleeding. There were further stab wounds to the right chest and on the back. Each of these had penetrated about 10cms. There was a typical defensive injury on the back of the wrist and some other minor injuries.

[3] The appellant did not dispute that he had stabbed and killed the deceased, but claimed he was acting in self-defence. It was his position that, contrary to the evidence relied on by the Crown, prior threats had been made by the deceased to him. The deceased and his brother were members of a gang known as the YPR (Young Parkhead Rebels). On the relevant day he was in the kitchen of the flat using a knife to help himself to some cannabis when he heard a knock at the door. The door started going back and forward and he thought that Kevin Leitch was getting robbed or something. He then heard a voice saying, "Lieser's fucking getting it". He walked to the door, the knife in his hand. The door burst open. Kevin Leitch came in backwards and the deceased came towards the appellant. The appellant went towards the deceased. The appellant felt threatened by the deceased, who was taller than him, and was standing over him, and he thought that the deceased was going to stab him.

[4] As the trial judge informs us, the solicitor advocate then representing the appellant did not suggest to the jury that the deceased in fact had a knife at the time, but rather the submission was that the appellant believed that he did and that he held that belief on reasonable grounds. In that connection the jury's attention was drawn to the appellant's position as summarised above.

[5] In his charge to the jury the trial judge gave certain basic directions as to the crime of murder in terms which were not the subject of any criticism before this court. In the course of these directions he said:

"Now, murder is constituted by any wilful act causing the destruction of life, whether the perpetrator wickedly intended to kill or displayed such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences. So the Crown must prove that the killer acted with either a wicked intention to kill or with wicked recklessness which showed that he was utterly regardless of the consequences."

He further directed the jury that they were bound to acquit the appellant if they were satisfied that he acted in self-defence or if they were left with a reasonable doubt as to that. He directed them that they could convict of the lesser offence of culpable homicide inter alia on the basis that they were satisfied that he had acted under provocation or if they were left in reasonable doubt as to that. The terms of his directions followed conventional lines in each respect and it is unnecessary to rehearse them in detail. It is enough to record that in the course of his directions relating to self-defence he said:

"However where self-defence is raised there are limits to its application. First of all, there must be imminent danger to the life or limb of the accused, or at least, and I think this is the approach taken in this case, the accused must have believed that there was such imminent danger and that belief must have been based on reasonable grounds, even if it was mistaken. So there are two stages. You have to ask yourself do you believe the accused when he says he believed that he was in imminent danger? Secondly, if you do, on the evidence was it reasonable for him to believe that ...".

Later in relation to the question of "cruel excess" he said:

"By way of example, to illustrate the approach to this question, if a man was struck by a blow by another man with a fist, with a punch, that could not justify retaliation by the use of a knife because there is no real proportion at all between a blow by a fist and the use of a knife. On the other hand, if a man genuinely believed that he was under attack from another man with a lethal weapon and had reasonable grounds for believing that, even if wrong, and he retaliated using a weapon then you might take the view that there was a reasonable proportion between the attack made and the retaliation offered."

In relation to provocation, the trial judge directed the jury inter alia:

"That description raises a number of requirements before provocation could apply. The first is that the accused must have had a reasonable belief that he was under a physical attack."

Before us counsel for the appellant presented argument in support of two separate, but related, grounds of appeal. The first is that the trial judge misdirected the jury in relation to self-defence. In that connection ground 1 of the Note of Appeal reads:

"In particular it was an error to direct them that the belief entertained by the accused had to be based on reasonable grounds. It is submitted that, since the crime or murder is one of intention, there is no reason why a genuine belief that one is acting in self-defence should not be a defence however that belief is arrived at."

The second ground of appeal argued is that the trial judge misdirected the jury in relation to provocation. Ground 2, in particular, reads:

"... it was a misdirection to suggest that the appellant had to have a reasonable belief that he was under attack. Reference is made to ground 1. By parity of reasoning it is submitted that the belief only had to be genuine."

Counsel for the appellant accepted that the directions given by the trial judge in respect of these matters were consistent with the position which has been expressed in a number of earlier authorities. Reference in particular was made, in relation to self-defence, to Owens v HM Advocate 1946 JC 119 and, in relation both to self-defence and provocation, to Jones v HM Advocate 1990 J.C. 160. Neither of these cases should be regarded as binding, since the particular question in issue was not fully argued. In any event, for that reason, they could not be regarded as soundly based in light of more recent authority. In particular it was now clear from the analysis of at least four members of the five judge bench in Drury v HM Advocate 2001 SCCR 583 that whereas hitherto self-defence and provocation had been regarded as defences or exceptions to what otherwise would be murder, they properly fell to be considered as part of the question of whether an accused could be said to have had the necessary mens rea, in particular the necessary "wickedness", even where an accused intended to kill. Reference was made to the opinion of the Lord Justice General (Rodger) at page 589 (para.11), Lord Johnston at page 609 (para.18), Lord Nimmo Smith at page 611 (para.2), and Lord Mackay of Drumadoon at page 614 (para.2). The suggested modification of the traditional definition of murder, based on Macdonald's Criminal Law (5th ed. p.89), by the insertion of the word "wickedly" before "intended to kill" had been correctly followed by the trial judge in the present case. Although the question before the court in Drury related to how the response of an accused, provoked not by violence or by threats of violence but by discovery of sexual infidelity, fell to be tested, it was clear that the conceptual analysis of murder (and the place of self-defence and provocation within it) was essential to the answer given by the court. Reference in particular was made to the opinion of the Lord Justice General at page 587 (para.8) and to that of Lord Mackay of Drumadoon at page 614 (para.2). The analysis of the court in Drury was not questioned subsequently by the bench of five judges in Gillon v HMA 2006 SCCR 561 (particular reference being made to paragraph 24 of the Opinion of the Court), albeit the court was not persuaded that there was any need to interfere with the traditional understanding of the requirement for proportionality in the response of an accused provoked by physical violence. Given that the proper focus in questions of self-defence and provocation was on the mens rea of the accused, there was no reason in principle, in cases of mistaken belief as to violence offered, to consider any more than whether that belief was genuine. The existence of reasonable grounds would be relevant only to the jury's assessment of the credibility and reliability of the accused's position. The appellant's arguments were afforded assistance, at least in principle, by the decision of the court in Jamieson v HM Advocate 1994 JC 88, where it was held, agreeing with certain observations in Meek v HM Advocate 1982 S.C.C.R. 613, that an accused who held a genuine but mistaken belief that the complainer was consenting could not be guilty of rape. In these circumstances it could be said that the trial judge had misdirected the jury in material respects, and the appeal should be allowed, or at least the court should be persuaded to convene a larger bench to reconsider the earlier authorities.

[6] The Advocate depute submitted that it could not be said that the trial judge had misdirected the jury in either of the respects suggested. His directions were in accordance with longstanding authority. The expressions of view in the cases of Owens v HM Advocate and Jones v HM Advocate were, as was apparently accepted, part of the ratio of the court's decisions and were binding on the court as presently constituted. In the latter case the charge to the jury by Lord Strachan as reported in McCluskey v HM Advocate 1959 JC 39 was specifically approved. Reference was also made to the observations of the Lord Justice General (Clyde) at page 42 in that case. The court in Jamieson v HM Advocate was concerned with a different, and particular, question relating to the mens rea necessary for rape. It was made plain that nothing said in that case cast doubt on the soundness of the earlier authorities. Strong reasons of policy could be said to underlie these authorities, particularly in the case of homicide, where self-defence would justify and provocation would excuse even an intentional killing. There was nothing in Drury v HM Advocate inconsistent with these authorities or which could be taken to suggest that they were ill-founded. Instead it was clearly accepted in that case that questions of policy dictated the boundaries of the law of provocation in Scotland. Reference was made to paras.25 and 32 of the Lord Justice General's opinion. The particular issue in question in the present case was not discussed, nor were the cases of Owens v HM Advocate or Jones v HM Advocate referred to. We have come to the clear view that the submissions of the Advocate depute fall to be preferred.

[7] We take as our starting point the existence of longstanding and, we consider, binding authority to the effect that a person who claims that he acted in self-defence (or that he was provoked) because he believed that he was in imminent danger must have had reasonable grounds for his belief.

[8] In Owens v HM Advocate Lord Justice General Normand, who delivered the Opinion of the Court, said (at page 125):

"In our opinion self-defence is made out when it is established to the satisfaction of the jury that the panel believed that he was in imminent danger and that he held that belief on reasonable grounds."

In that case the position of the appellant, whose appeal against a conviction for murder succeeded on the basis of a misdirection by the trial judge, was that he believed, on grounds apparently supported by other evidence, that the deceased had had what appeared to him to be a knife in his hand.

[9] In Jones v HM Advocate, another appeal against conviction for murder where the appellant's position was that he believed the deceased had had a knife, it was held by the court (and apparently accepted on all sides) that the trial judge had misdirected the jury (a) in relation to self-defence by failing to direct the jury in accordance with Owens v HM Advocate (albeit it was held that that had not, in the circumstances, led to a miscarriage of justice) and (b) in relation to provocation by not leaving it open to the jury to consider that the appellant was provoked in circumstances where he believed, albeit mistakenly, that the deceased had a knife and where his belief was based on reasonable grounds. As to the former the Lord Justice-Clerk Ross said (at pages 171 to 172):

"In my opinion, if the question of self-defence was to be left to the jury, it was incumbent upon the trial judge to direct the jury on the lines approved in Owens v HM Advocate. An example of appropriate directions to be given on the issue of self-defence may be found in McCluskey v HM Advocate 1959 JC 39. In charging the jury in that case Lord Strachan said (at pages 39 to 40): 'Before you could find that the accused was justified in killing Ormiston (the deceased) you would have to be satisfied that he struck the fatal blow for his own protection and to ward off danger to himself, either danger which was actually threatened or danger which might reasonably be anticipated by him. It would not be necessary to find that there was actual danger to the accused; you could uphold special defence, subject to what I am going to say in a moment, if you were satisfied that the accused believed that he was in danger and if you were also satisfied that he had reasonable grounds for so thinking.'"

In this respect he was fully supported by the other members of the court. As to the latter, the Lord Justice-Clerk accepted submissions on behalf of the appellant that the directions by the trial judge on provocation amounted to a misdirection

"since they required the jury to determine as a matter of fact whether the deceased probably had a knife and did not recognise that provocation might be proved if the appellant believed that the deceased had a knife and that his belief on that was not unreasonable." (see page 173)

In the same case, in relation to provocation, Lord Wylie said at page 175:

"On this ground of appeal the proper test adumbrated in relation to proof of provocation was whether the accused, given the circumstances in which he found himself, could reasonably have thought that the victim had a knife, and was about to strike a blow with the knife, or was about to strike a blow with any knife he may have had in his possession."

Although we were not specifically referred to Crawford v HM Advocate 1950 J.C. 67 it may also be noted that the Lord Justice General (Cooper) said in that case at page 71:

"As regards the argument urged upon us that the appellant rightly or wrongly thought that he was in danger of his life and the reliance placed upon the case of Owens ... I should like to say that, when self-defence is supported by a mistaken belief rested on reasonable grounds, that mistaken belief must have an objective background and must not be purely subjective or of the nature of an hallucination."

[10] Although counsel for the appellant may be right to suggest that the rationale for these clear statements is not fully rehearsed in any of the cases, we have little doubt that obvious considerations of policy may be said to underlie them. It is for reasons essentially of policy that the law has chosen to require certain conditions to be present before an accused may be said to be wholly justified when acting in self-defence, even in the case of an intentional homicide, or before a killing which would otherwise be murderous can be excused on the basis of provocation. It is to be noted, for example, that in Drury v HM Advocate, on which counsel for the appellant sought to place most reliance, not only were the functions of self-defence (to justify) and of provocation (to excuse in relation to a charge of murder) emphasised (see e.g. the Lord Justice General paras.11 and 16), but it was stressed repeatedly that, in relation to provocation, which was the particular issue before the court, reasons of policy essentially underlay the requirements imposed by the law. For example the Lord Justice General said at page 555 (para.25):

"In matters of homicide Scots law admits the plea of provocation only within certain bounds which are considerably narrower than those within which it operates in English law. In Scots law it applies only where the accused has been assaulted and there has been substantial provocation. In English law, by contrast, even a slight blow or mere jostling may be sufficient to admit the plea. In Scots law, no mere verbal provocation can palliate killing. The same applied in England until the law was changed by section 3 of the Homicide Act 1957. The difference and scope of the doctrine of provocation in the two systems does not arise, it should be stressed, because Hume and the Scottish judges are unaware that people may react violently to minor physical provocations or to insults. Rather, as a matter of policy, the law has taken the view that in such cases the person assaulted or the person insulted should be expected to control himself, at least to the extent of not killing his tormentor. To this policy Scots law admits only one exception: the law recognises that when an accused discovers that his or her partner, who owes a duty of sexual fidelity, has been unfaithful, the accused may be swept with sudden and overwhelming indignation which may lead to a violent reaction resulting in death."

Given that deliberate and intentional attacks may be said to be wholly justified on the basis of self-defence, while it is understandable that allowance should reasonably be made for genuine mistakes of fact, it is equally understandable that not every such mistake should be thought to be capable of leading to exculpation. If it were otherwise even an intentional killing would fall to be regarded as wholly justified in circumstances where the accused's actions could be said to have been prompted by gross recklessness. In other words, an accused who intentionally killed in the mistaken belief that he faced a grave attack on his person, would (assuming all other requirements for self defence were met) be entitled to acquittal notwithstanding that he had recklessly ignored matters which would have destroyed that belief, had he not thus recklessly cast them aside; and his gross recklessness would go without penalty.

[11] The foundation for the appellant's contention that we should at least convene a larger court to reconsider the earlier authorities is said to be the decision of the bench of five judges in Drury v HM Advocate. There is, however, in our view, nothing in the opinions delivered in that case which casts doubt on those earlier authorities. The essential question before the court, where the appellant claimed to have been provoked by the discovery of sexual infidelity, was whether the trial judge misdirected the jury in so far as he suggested that they required to measure the degree of violence used by the appellant against the provocation offered. The court, in holding that the trial judge had misdirected the jury, held that in such cases the essential question instead should be whether an ordinary man, thus provoked, would have been liable to react as the accused did. It is, of course, as counsel rightly pointed out, clear that at least four of the bench considered that self-defence and provocation were conceptually to be seen, where relevant, as relating to the primary question of whether the accused could be said to have had mens rea for murder, in particular whether he could be said to have acted with the necessary wickedness, rather than falling to be considered separately as, on the one hand, a defence or, in the case of provocation, as something which could "reduce" murder to culpable homicide. But we see no reason to suppose that (save in relation to the particular question which the court required to answer) it was intended to alter the hitherto accepted and well-recognised boundaries of self-defence and provocation. It seems to us to be reasonably clear that all the court was concerned to stress was that if an accused intentionally killed in circumstances which the law would regard as meeting the requirements of self-defence or, failing that, in circumstances in which the law would regard him as having acted under provocation, he could not be said to have acted with the necessary "wickedness" for murder, in the former case being entitled to acquittal, in the latter to a verdict of culpable homicide. As counsel for the appellant before us accepted, there are, and would remain, notwithstanding anything said in Drury v HM Advocate, a number of conditions which fall to be tested objectively, either in whole or in part, in relation to both self-defence and provocation. In relation to the former, reference may be made to the requirement that there be no "cruel excess" in the defensive action. In relation to the latter, examples may be found in the need for immediacy in the provocation offered, for a degree of loss of control and, in cases of provocation by violence, for some proportionality in the response (reaffirmed in Gillon v HM Advocate, notwithstanding the conceptual analysis of murder undertaken in Drury v HM Advocate - see especially para.30) or, in the case of provocation by discovery of sexual infidelity, for a reaction which goes no further than that to be expected of the ordinary man. Counsel certainly did not seek to advance argument to the full extent of the proposition in the first ground of appeal that "there is no reason why a genuine belief that one is acting in self-defence should not be a defence, however that belief is arrived at." In these circumstances, in our opinion, it is not to be supposed that the court in Drury v HM Advocate envisaged any alteration to the requirement that any genuine but mistaken belief in violence offered must be based on reasonable grounds. The cases of Owens v HM Advocate, Crawford v HM Advocate and Jones v HM Advocate were not referred to at all.

[12] It is of course true that, in relation to the crime of rape, the court in Jamieson v HM Advocate held (affirming certain earlier observations in Meek v HM Advocate) that an accused who genuinely but mistakenly believed that the complainer was consenting could not be guilty of rape, even if he had no reasonable grounds for such belief. In particular the Lord Justice General (Hope) said (at page 92):

"The crime of rape consists in the carnal knowledge of a woman forcibly and against her will. Thus the mens rea of this crime includes the intention to have intercourse with the woman without her consent. The absence of a belief that she was consenting is an essential element in it. If the man has intercourse with a woman in the belief that she is consenting to this, he cannot be guilty of rape."

and later stressed (at p.93) that:

"The reason why, in rape cases, the man's belief need not be shown to be based on reasonable grounds for his belief to be relevant as a ground of acquittal is because of the particular nature of the mens rea which is required to commit the crime".

Of particular significance for present purposes, however, he also said (at page 93):

"As the trial judge points out in his report, there is ample authority that a person who claims that he acted in self-defence because he believes that he was in imminent danger must have reasonable grounds for his belief: Owens v HM Advocate; Crawford v HM Advocate; Jones v HM Advocate. He suggests that Meek was inconsistent with this line of authority. As the Solicitor General conceded that there was a misdirection in this case and that a direction on the lines indicated by Meek was appropriate here, we were not addressed to any extent on this point. We wish to say, however, that we are not to be taken, from what we have said in this opinion, as casting any doubt on the soundness of the dicta in those cases. Nor are we to be taken as suggesting that in any other case, where a substantive defence is based on a belief which is mistaken, there need not be reasonable grounds for that belief."

In these circumstances we do not consider that the case of Jamieson v HM Advocate can be said to afford any support for the appellant.

[13] The appeal against conviction is therefore refused.

[14] The appeal against sentence will be continued to be heard at a later date.


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