Kevin McGrouther v HMA [2021] HCJAC 5

Mr McGrouther was convicted on the 21^st of February 2020 at the High Court in Glasgow of the following charge:

“On 18 September 2018 at 261 Cedar Road, Cumbernauld, North Lanarkshire you did assault Allan Kemp, care of police service of Scotland, Whittington Street, Coatbridge and did strike him on the chest with a knife or similar instrument to his severe injury, permanent disfigurement and to the danger of his life and did attempt to murder him.”

The appellant and the complainer were neighbours and had difficulties since the complainer moved into the flat above the appellant. The complainer gave evidence that around 5.30am on the morning of the 18^th of September 2018 he had heard Mr McGrouther shouting in the communal stairway and, when he went to confront him at Mr McGrouther’s door, Mr McGrouther opened the door and stabbed him in the chest.

A joint minute was agreed and signed agreeing the medical evidence and that:

“the wound to the complainer’s chest was consistent with him having been struck once with a knife or similar instrument and that had he not received expeditious medical treatment he would have died as a result of his injuries.”

The appellant had given evidence that the complainer had threatened him with a crossbow with a bolt in it, he felt his life was in danger and he went and got a small knife from the kitchen. The appellant stated that when he returned from the kitchen the complainer was still at his door threatening him with the crossbow. He told the police that he elbowed the crossbow out of the way and he accepted that he must have stabbed the complainer with the knife. The appellant stated that he did not mean to stab the complainer. He therefore gave a special defence of self-defence.

The appellant’s appeal was on the basis that the trial judge misdirected the jury by failing to advise of the possibility of returning a guilty verdict with the deletion of the aggravation of attempted murder. The particular passage was:

“Now, I have to tell you that, if your verdict is to be one of guilty, then you can delete part of the charge that you find is not proved. What is left must define the crime and describe how it was carried out and it may be that in this case there is not much scope for deleting anything because, as has been clearly explained to you by Crown and defence, the way in which this case has been presented is that it’s either an attempted murder or its self-defence”.

In delivering the opinion of the court, Lord Justice General (Carloway) stated:

“The general principle is that the obligation on the trial judge is to charge on verdicts in accordance with the manner in which the case has been presented to the jury by the parties (the “live issues”). The judge should not speculate or embark upon areas of possible alternative verdicts which have neither been canvassed in the evidence nor formed part of the speeches to the jury. The judge ought not to present an alternative verdict, which has not been canvassed by the parties, unless the prospect of that verdict is an obvious one. … The principle is based upon that of fairness. It follows that there is an exception where, on the contrary, a direction on an alternative is required as a matter of fairness.”

“The need to direct on a matter not raised by parties ought to be a rare event, given the functions of parties representatives, but it remains possible that the trial judge will regard an alternative, such as culpable homicide in a murder trial or reset in a theft case, as obviously open to the jury on the evidence, even if it is not been addressed in the speeches. … If the judge does take the view, that he or she ought to give a direction on an alternative verdict not addressed by the parties, he or she should do so…”

The court therefore refused the appeal as the possibility of the alternative charge under deletion was not a “live issue”.