Man found guilty of knife assault has sentenced cut on appeal over lack of directions on ‘provocation’

The Criminal Appeal Court ruled that a “miscarriage of justice” had occurred as the jury were denied the opportunity of returning a verdict of “guilty under provocation”.

Lady Paton (pictured), Lady Smith and Lord Brodieheard that the appellant James Duffy was sentenced in April 2014 to an extended sentence of eight years comprising a custodial term of five years and an extension period of three years after being found guilty by majority verdict following a trial in Glasgow Sheriff Court of assaulting Richard Watson and repeatedly striking him on the head and body with a knife to his severe injury, permanent disfigurement and to the danger of his life.

Three grounds of appeal passed the sift: the first related to directions given concerning the evidence of a police constable; the second concerned the lack of directions relating to provocation; and the third challenged the sentence as “excessive”.

The evidence disclosed that on 1 April 2012 the appellant was playing pool in a pub in Elizabeth Street, Glasgow and had an argument with the complainer.

Both men were asked to leave the premises and they started fighting outside the bar.

Initially the complainer appeared to have the upper hand, having knocked the appellant to the floor and repeatedly punched and kicked him on the head and body.

However, at some stage in the struggle a knife came into the appellant’s hand, and the complainer emerged from the fight with several stab wounds and a laceration to his face.

The appellant – who was left with considerable bruising, black eyes, a suspected fracture of the right cheekbone, and two small lacerations to his hand and bloodstained clothes – subsequently met a police officer, PC Dick, and told him that he had “fallen”.

At the trial, the appellant lodged a special defence of “self-defence” but did not give evidence and no evidence was led on his behalf. The Crown led evidence and relied upon the complainer Richard Watson, as well as a CCTV recording from a security camera to provide corroborated evidence of the incident.

In their jury speeches, neither the procurator fiscal nor the defence solicitor mentioned the option of a verdict of guilty under provocation, but the fiscal referred to the fact that the appellant did not report to the police that he was a victim of a crime of violence when he met PC Dick, which prompted the defence solicitor to emphasise that the appellant did not need to say anything to the police.

In the course of his charge, the sheriff gave the jury directions about credibility and reliability, self-defence, the sources of evidence which if accepted could provide corroborated evidence, and the appellant’s conversation with PC Dick, but did not give directions on provocation.

It was submitted on behalf of the appellant that although the sheriff told the jury that the appellant’s explanation that he had fallen was not corroboration of his guilt, the sheriff ought not to have directed the jury that the interaction between the police officer and the appellant might shed light on the veracity of the complainer’s evidence.

But the appeal judges were “not persuaded” that any misdirection or miscarriage of justice occurred, or that there was any merit in this ground of appeal.

On the lack of directions on provocation, it was argued that because the jury were denied the opportunity of returning a verdict of “guilty under provocation” a miscarriage of justice had occurred and the verdict of guilty should be quashed.

Delivering the opinion of the court, Lady Paton said: “As was made clear in Ferguson v HM Advocate 2009 SCCR 78, a judge’s function when charging the jury is not ‘fenced by the way the case is presented to the jury by both or all parties’. On the contrary, it is for the judge to give the jury such directions in law as are necessary for their guidance ‘on a reasonable view of the evidence’.

“Thus it may be that a charge should include explanations about, for example, the option of returning a verdict of culpable homicide to a charge of murder if evidence about provocation were to be accepted, or the option of returning a verdict of ’guilty of assault under provocation’, again if evidence about provocation were to be accepted, even although provocation and its effect had not been mentioned by the Crown or the defence.

“In these particular circumstances, it seems to us that there was a possibility that a reasonable jury might have considered the use of a knife as proportionate, depending upon their assessment of the evidence about when the knife was used, in what circumstances, and for what purpose.

“In the present case, as there was evidence which, if accepted by the jury, could satisfy the other three requirements of provocation , there was, in our opinion, a requirement to give the jury directions about provocation, such that they could add the rider (or not) as they thought fit.

“We accept that the lack of such directions has resulted in a miscarriage of justice.”