Kenneth Thomson v HMA [2020] HCJAC 49

The appellant was convicted on the 25^th of October 2019 at Edinburgh Sheriff Court of: on the 13^th of September 2018 (1) assaulting Osman Celik and brandishing a broken bottle at him; (2) possession of an offensive weapon – the broken bottle – and; (3) breach of the peace and that it caused Agnes Gray who was with Osman Celik to suffer fear and alarm whilst the appellant was subject to bail conditions.

The appellant had lodged a special defence of self-defence for all three charges in that the appellant was acting in the defence of another, his girlfriend, and of reasonable excuse for possession of the offensive weapon and was convicted after trial. The appellant was sentenced to 12 months imprisonment, 3 months of which were attributed to the bail aggravation.

The appeal related to, firstly, the directions the Sheriff gave and, secondly, that the appellant could not be convicted of charges (1) and (3) as they concerned the same species facti (the same character of act).

The Sheriff gave direction that in relation to charges (2) and (3), the special defence of self-defence was not competent and therefore self-defence was only available in relation to charge 1.

In relation to the defence of reasonable excuse in connection with charge (2) the Sheriff stated:

“As a matter of law I have to tell you that fear or apprehension of an attack is not a reasonable excuse for arming yourself. That’s what the law says and it may seem rough, but it’s to prevent people tooling up because they think there might be trouble and the law is very firm that fear of an attack is not a reasonable excuse for having an offensive weapon.”

For charge (3), the Sheriff explained that the Crown needed to prove that the accused behaved in a threatening or abusive manner and that the behaviour would be likely to cause a reasonable person to suffer fear and alarm and that the accused intended to do so or was reckless as to whether he did or did not. He thereafter repeated that the special defence of self-defence was not competent and that a different defence of whether or not the accused’s behaviour was reasonable in the circumstances was available for consideration. The Sheriff in describing this defence stated:

“You decide what you think he did in relation to (this charge) and then having decided what you think he did you ask yourself whether that conduct was reasonable in all the circumstances, and if it is you acquit him, if it’s not then he does not have the defence available to him and you are entitled to proceed to consider conviction.”

In returning to charge (1) the Sheriff stated self-defence could be available to protect oneself or another.

On appeal it was decided that in relation to charge (2) and in light of the case Lunn v HMA that the direction for this charge was incorrect and the conviction on this charge could not stand.

The Sheriff directed the jury that “.. the law is very firm that fear of an attack is not a reasonable excuse for having an offensive weapon.” The appeal court decided that his presented the jury with an absolute proposition. The appeal court stated that the defence for charge (1) was section 47(1A) of the 1995 Act, section 38(2) of the 2010 Act and that the person charged had to show that the behaviour was reasonable in the circumstances. With the jury having had the direction in relation to charge (2):

“In these circumstances we agree that it was asking too much of the jury to appreciate that, despite what they had been told, an accused person could still be judged to have acted reasonably and appropriately by brandishing an offensive weapon in fear of an attack in the context of a charge of assault.”

The appeal court stated that the position was similar for charge (3) as “acting in self-defence for the purpose of preventing an assault is almost bound to include aggressive behaviour”. The appeal court stated that it would have been difficult for the jury to determine whether the act of self-defence was reasonable in the circumstances if they were being asked to proceed on the basis that arming oneself was not reasonable behaviour.

The appeal court concluded that the direction in relation to charge (2) introduced a “fatal flaw” to the jury’s consideration of the appellant’s actions leading to their determinations in relation to charges (1) and (2)  and therefore in the circumstances the convictions in relation to charges (1), (2) and (3) were quashed under the first ground of appeal. Consideration was therefore not required of the second ground of appeal.