Man who assaulted police officer with a sword fails in ‘self-defence’ appeal

The Criminal Appeal Court rejected the appellant’s claim that he was acting in “self-defence”.

Lady Smith, Lord Bracadale and Lady Clark of Calton heard that the appellant Robert Urquhart was convicted by the jury at Perth Sheriff Court of assaulting PC Edward Rankin by striking him on the leg with a sword, and behaving in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm by shouting, swearing and brandishing a sword at PCs Rory Duncan and Ian Bailey, contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

The court was told that on 23 December 2013 at about 11am, police officers attended at the appellant’s home address in Perth to enforce a warrant.

The officers attempted to force open the front door and had cut a hole in it, but the appellant thrust the four-foot sword through it on a number of occasions, injuring the officer named in charge 1.

Meanwhile, two other police officers had entered the house through the back door and repeatedly shouted “police” as they moved through the property into the living room.

The appellant, who was clad only in a t-shirt, was brandishing the sword and shouting and swearing at the officers, telling them to “f*ck off”.

Unnerved by his actions, PC Duncan took out his CS spray and repeatedly told the appellant to put down the weapon, before eventually wrenching it from his grasp.

The appellant’s position at trial was that he had “no idea” who was at the door and thought there was about to be a break-in and a robbery.

A special defence of self-defence had been lodged, but the jury convicted him of the assault charge.

In his charge, the sheriff directed the jury that they could only consider the special defence in relation to the first charge, saying that it played “no part whatsoever” in relation to the second charge.

The issues raised in the appeal, which related only to charge 2, were whether the special defence of self-defence was available in relation to a charge under section 38(1) of the 2010 Act, and whether the defence available under section 38(2) of the 2010 Act imposed a legal burden on an accused as opposed to an evidential one.

Counsel for the appellant submitted that self-defence could be relevant to a charge under section 38(1) and the sheriff was “wrong to have excluded it”.

It was argued that it could be an answer to any or all constituent parts of the statutory offence, in particular in the present case to the third element of “mens rea”.

Counsel relied on the 1991 case of Derrett v Lockhart and on the Crown’s stated position in their written argument, which was to concede that since self-defence could be available in answer to a common law charge of breach of the peace, it must also be available in answer to a charge under section 38(1).

Regarding the second issue, counsel submitted that it was clear that section 38(2) imposed only an “evidential burden” on an accused person, adding that there was “no need to impose a legal burden” and that it was “disproportionate” to do so.

It was argued that the sheriff had “erred” in directing the jury that they required to be satisfied that he had established the defence on a “balance of probabilities”.

However, the appeal court rejected the first ground of appeal, ruling that the sheriff “did not misdirect the jury” when he told them that the special defence of self-defence had no relevance to the second charge.

The judges observed that while section 38(1) was often” loosely” referred to as being a “statutory breach of the peace”, there were “significant differences” between the two offences and it was clear from the structure of the statutory provision that the crime had “three distinct elements”.

Delivering the opinion of the court, Lady Smith said: “It is committed if (i) the accused behaves in a threatening or abusive manner, and (ii) his conduct would cause a reasonable person to suffer fear and alarm, and (iii) he intended his conduct to cause fear and alarm or he was reckless as to whether or not it would do so. We do not accept that the special defence of self-defence could have any relevance to parts (i) or (ii). Whilst there may seem to be some initial attraction in the proposition that it could be relevant to mens rea - part (iii) - we conclude that that cannot be right. There are two reasons for that.

“First, it seems to us inevitable that if a person conducts themselves in a manner which accords with the descriptions in parts (i) and (ii) and the reason for him doing so was that he was acting in self-defence in the sense that he genuinely thought he was in danger, he is bound to have intended to cause fear and/or alarm to his assailant. However cogent the case of self-defence might be, it could not, accordingly, prevent part (iii) being established. Secondly, the statutory defence afforded by section 38(2) is plainly wide enough to cover all and anything that an accused person may wish to advance to the effect that he was in fact acting in self-defence.”

On the burden of proof, the judges were not satisfied that section 38(2) imposed a legal burden on an accused person, meaning that the sheriff did “misdirect the jury” regarding this matter.

But in light of the evidence, the court concluded that the sheriff’s misdirection had not led to a miscarriage of justice.

Lady Smith said: “In these circumstances, we consider that if the police evidence was accepted – as it must have been – looking at matters objectively, the accused’s behaviour could not, on any view, be characterised as having been reasonable. He could not reasonably have thought that he was dealing with intruders or was otherwise in need of defending himself. In these circumstances, notwithstanding the sheriff’s misdirection, there has been no miscarriage of justice and the appeal is accordingly refused.”