Edinburgh man has ‘mouth punch’ culpable homicide appeal upheld 

David Ditchburn was convicted of four charges in May 2019, including an offence of culpable homicide. Both the trial judge and the Crown conceded that the directions complained of were misdirections in law. 

The appeal was heard by Lord Malcolm, Lord Turnbull, and Lord Pentland. 

Topic introduced by the judge 

The details of the relevant charge were that in August 2018 the appellant assaulted the victim, John Ashwood, at a flat on Brunswick Road, Edinburgh, and struck him on the head to his severe injury. He did this while on bail, having been granted bail in July 2018. 

At the trial, evidence was given by a third man who had been in the flat that the appellant and the deceased had been involved in an argument, and that the appellant had punched the deceased on the side of his head. After the attack, the deceased slumped off his seat and fell to the floor with blood coming from his mouth. An ambulance was called for shortly after. 

The appellant, who described his conduct as “a wee slap” rather than a punch, accepted that he caused the injury to the deceased’s mouth but stated he was acting in defence of his friend and did not intend to cause any serious injury. The jury heard medical evidence to the effect that the complications of blunt force mouth injury were just one element in a multi-factorial death. 

In her directions to the jury, the trial judge gave the standard directions on culpable homicide from the jury manual as well as directions on the requirements to establish assault and the issue of self-defence. She also said that the jury would need to be satisfied that the appellant’s act must have been “intentional or reckless and grossly careless”. 

It was submitted for the appellant that there had been no reference to recklessness or gross carelessness during the trial, and that the topic had only been introduced in the judge’s charge. In the whole context of the case, the jury could only convict on the basis of an assault causing death, something which would necessarily involve deliberate conduct on the part of the appellant. This misdirection was material and productive of a miscarriage of justice. 

The Crown accepted that the reference to recklessness was inappropriate, but the issue for the jury was clearly one of deliberate accident and this was reflected in the indictment. In the whole circumstances of the case, there was therefore no miscarriage of justice. 

New route to conviction 

The opinion of the court was delivered by Lord Malcolm. He began: “Causing death by reckless conduct, as opposed to an assault, is a separate crime, with a distinct mens rea. That crime was not charged. As noted above, the judge repeatedly linked the crime of assault with recklessness and gross carelessness.” 

He continued: “Those directions could have caused the jury to convict even though satisfied that the appellant did not assault the deceased; or that he acted in defence of the other man, but nonetheless behaved recklessly or with gross carelessness. The judge introduced and by repetition emphasised a new route to conviction which was outwith the terms of the libel, was not in issue at the trial, and was not mentioned during either the Crown or defence speeches to the jury.” 

For these reasons, the appeal was upheld, and a new sentence imposed limited to the appellant’s remaining convictions on the other charges. A Crown motion seeking authority for a fresh prosecution in respect of the disputed charge was granted. 

In a postscript emphasising the importance of tailoring charges to the circumstances of the trial, Lord Malcolm noted: “The [jury] manual is no more than a first port of call providing a useful checklist of points for judges to bear in mind. In the present case the trial judge lifted the directions complained of more or less verbatim from the manual at chapter 43, where, in the then current version, the focus was upon distinguishing murder and culpable homicide.” 

He concluded: “The crime of culpable homicide can occur in a wide variety of circumstances, including, as in this case, when a relatively minor assault contributes to a death. In Green and Other v HMA (2019) it was observed that, while the manual directions may be correct as a generality, they are not apt for a death brought about by an assault.”