Soldier who ‘threatened to behead Muslims’ loses appeal against conviction

Scott Mackay argued that the sheriff “misdirected” the jury in his definition of the statutory defence, but the High Court of Justiciary Appeal Court refused the appeal after ruling that the sheriff’s charge summarised the matter “succinctly and accurately”.

Fear and alarm

The Lord Justice General, Lord Carloway, sitting with Lord Malcolm and Lord Woolman, heard that following a trial at Dunfermline Sheriff Court in April 2016 the appellant was found guilty of behaving in a threatening or abusive manner, which was likely to cause a reasonable person to suffer fear or alarm in that during the course of a telephone call to a police call handler he stated that he was armed with a machete and uttered threats of violence and death towards Muslims, contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

He was also convicted of a contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 by having the machete with him in circumstances which were aggravated by religious prejudice.

The appellant had already pled guilty to being in possession of flares and pyrotechnics, contrary to sections 5 and 39 of the Explosives Act 1875, at the end of the Crown case.

The sheriff imposed a Community Payback Order with three years supervision, conditions that the appellant obtain mental health treatment and abstain from alcohol, and a 12-month Restriction of Liberty Order between 7pm and 7am.

The trial heard that the appellant, a serving solider who had undertaken tours of duty in Afghanistan, had a “history of mental health issues”.

There was no dispute that on 20 September 2015 he made a 999 call to the emergency services stating that he was a short distance away from Sizzlers Tandoori take-away shop in Rosyth.

He said he intended to “behead” the shop workers, whom he perceived to be Muslim, with a machete which he had with him, but that he had made the call in the hope that the police “might intervene and stop him”.

He mentioned his psychiatric background and that he was regarded as “dangerous”, and described what he planned to do as a “murderous crime” and “mass murder”.

The call ended when the appellant observed a police car drawing up alongside.

Special defence

The appellant had lodged a special defence of insanity in common law terms, but the trial proceeded on the basis that, in terms of section 51A of the Criminal Procedure (Scotland) Act 1995, the nature of the defence was that: “A person is not criminally responsible … if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct”.

It was not disputed that the appellant did suffer from a mental disorder, although there was an issue about its extent.

The Crown called two psychiatrists, each of whom said that the appellant had “post-traumatic stress and delusional disorders”, which included a belief that there was a “Taliban cell” based in Sizzlers.

The psychiatrist called by the defence also expressed the opinion that the appellant was “psychotic”, but all the psychiatrists agreed that he had “appreciated the nature” of his conduct.

The Crown psychiatrists considered that he had at least “some idea” that what he was planning to do was wrong, but the defence psychiatrist considered that he had not been able to determine that it was wrong.

The sheriff, who largely followed the recommendations in the Jury Manual, directed the jury that for the appellant to establish his special defence he required to prove that, at the time of the conduct, he was “unable by reason of mental disorder to appreciate the wrongfulness of that conduct”.

The sheriff went on to say that “if not withstanding a mental disorder the accused was able to any extent to appreciate the nature and wrongfulness of the conduct which constitutes a charge that falls short of the degree of loss of reason required to establish the special defence”.

Misdirection

The grounds of appeal were that the sheriff had misdirected the jury, first, by using the words “to any extent” in relation to the nature or wrongfulness of the conduct, as this had defined the defence “too narrowly”.

It was submitted that the amending legislation, which had introduced section 51A of the 1995 Act, had replaced the common law defence of insanity with a “cognitive concept of appreciation of conduct”, which involved something wider than knowledge and included a requirement for a level of “rational understanding”.

Secondly, it was argued that the sheriff had erred in failing to define the “nature and wrongfulness of the conduct” by reference to the wider application of the defence.

Decision

The court observed that section 51A of the 1995 Act was a “carefully considered piece of legislation” and that the words which were chosen to circumscribe the new defence of lack of criminal responsibility were “specially selected”, adding they expressed the defence in “quite different language from the common law concept of insanity”.

Refusing the appeal, the judges stressed that it was “important to look at the sheriff’s charge as a whole and not to scrutinise words in isolation”.

Delivering the opinion of the court, the Lord Justice General said: “The overall thrust of the sheriff’s directions reflected the statutory wording. The jury would have been clear that they had to decide whether the appellant’s mental disorder resulted in him being unable to appreciate the wrongfulness of his conduct (it not being disputed that he did appreciate its nature). This is not a complex issue when expressed in these terms.

“Although it would have been preferable for the sheriff to have omitted the words ‘to any extent’ as qualifying ‘appreciate’, since they are not contained in the section, any distortion of the true meaning of the defence would have been minimal in the context of the charge as a whole. The sheriff’s summary of the matter (supra) put the matter clearly, succinctly and accurately.”

However, the judges considered that it would be helpful if some further guidance was given on an appropriate direction in a case such as this.