GRAHAM, APPEAL AGAINST CONVICTION BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

[1] On 18 January 2017, after a trial in Airdrie Sheriff Court, the appellant and his co-

accused Charlene Johnson were found guilty by majority of the following charge:

“(1) on 8 June 2016 at [an address in Cumbernauld], you … did assault Stuart

Maxwell Raeburn … and did repeatedly punch, kick … his head and body to his

When returning their verdict, the jury deleted the word “stamp”.

[2] The appellant had lodged a special defence of self-defence in the following terms:

“Brown for the Pannel states that the Pannel pleads not guilty and specially and

without prejudice to said plea, states that on the occasion libelled by the Crown the

Pannel was acting in self defence of himself and also on behalf of another namely his

partner Charlene Johnson, the parties having been attacked by the Complainer.”

[3] The appellant gave evidence. No other evidence was led on his behalf. The co-

accused did not give or lead any evidence. The appellant and the co-accused were convicted

[4] The appellant appeals against conviction. He contends that the jury should have

been given directions not only in relation to self-defence, but also in relation to provocation.

In preparation for the appeal hearing, transcripts were obtained of the evidence of the

complainer Stuart Raeburn, his partner Louise Sanderson, and the appellant.

[5] The evidence disclosed that on 8 June 2016 the appellant and his partner Charlene

Johnson were invited to the home of the complainer and his partner Louise Sanderson.

Louise did not drink, but the others were drinking heavily. A fight broke out, during which

the appellant and Charlene punched and kicked the complainer. Louise managed to make

the appellant and Charlene leave. The police arrived. Statements were taken. An

ambulance took the complainer to hospital. The appellant and Charlene were subsequently

[6] In his report, the trial judge (Sheriff Derek O’Carroll) stated that he considered that

directions on provocation were unnecessary. At paragraph 25, he explained:

“It seemed to me however that this was not a case in which the need to direct on

provocation arose. Two starkly different and incompatible versions of events were

placed before the jury. The Crown’s case was that of an unprovoked assault by the

two accused on the complainer as he was trying to leave the house and who did not

manage to fight back and who did not have wood as a weapon. No question of self-

defence or provocation arose on that version. For the defence, the account was of an

unprovoked attack by the complainer on the Appellant and the co-accused to which

the Appellant responded by wresting the wooden weapon from the accused and

then when the complainer began punching the Appellant, he responded in kind, in

self-defence, resulting in comparatively minor injuries with no weapon. On that

version, importantly, there was no question of excessive or disproportionate force

being used by the Appellant on the complainer (unlike other cases where a plea of

self-defence has failed because the force used in response to initial violence was

excessive or disproportionate). More importantly, there was no evidence that the

Appellant ‘lost control over himself, when his presence of mind had left him and

without thought of what he was doing’ (See Jury Manual, Chp 24.1, paragraph 1 and

authorities cited therein). That is an essential element of provocation (along with

physical attack, instant retaliation and proportionality of response.) The Appellant

expressed no such feelings or reaction. On the contrary, the Appellant referred to his

superior size and the complainer’s alleged high level of intoxication and gave the

impression, on his account, that he was able to deal effectively with the complainer’s

alleged assault on him and saw no need to involve the police. In short therefore, it

seemed to me that the jury had before it two competing and incompatible versions of

the incident to consider, neither of which included all the elements of provocation

and none of the parties involved raised the question of provocation either. In all

these circumstances, I did not consider that a reasonable jury could have convicted

with a provocation rider and rightly or wrongly, I did not direct on provocation.”

[7] We acknowledge that this court had the benefit of transcripts, which the sheriff did

not. We also note that the excerpts to which our attention was drawn were mainly those

parts of the evidence which, if accepted by the jury, might have provided a basis for

returning a verdict of guilty of assault with the rider “under provocation”.

[8] Mr Raeburn was a reluctant witness. In examination-in-chief, he stated that he did

not want to incriminate the accused. Ultimately he adopted a statement which he had given

to a police officer on 8 June 2016 on the basis that he could not now remember what had

happened, but he must have told the police the truth. His police statement was in the

About 2000 hours on Wednesday 8th June 2016, I was out in the back garden of my

house drinking with Charlene Johnson and her partner Sean, Sean is mid 30’s, 6’2”,

skinny, brown hair, no top on and dark blue jeans. We were out drinking, my

partner Louise Sanderson doesn’t drink. Then we fell out for some reason, well I did

Sean out of nowhere, went for me. He punched me on the face and I fell onto the

ground. When I fell onto the ground, Charlene started to stamp on my head, she

kept doing it and she was doing it with some force. Then Sean picked me up and

Louise managed to get me to into the kitchen. They both followed me into the house

and both of them were punching and kicking me when I was on the kitchen floor.

Louise managed to get them out and they were shouting when they walked away.

My nose is absolutely killing me and the police came. I went to the hospital in an

[9] In the initial stages of his cross-examination by the appellant’s agent, the complainer

confirmed that he had been drinking Buckfast since 11 am on the day of the incident (page

67 line 22 and page 68 line 3). He knew that he should not be drinking as he was taking

medication for depression (page 68 line 23 to page 69 line 5). He acknowledged that

combining his medication with alcohol could result in blackouts and memory loss (page 69

line 22 et seq). He confirmed that, on the day of the incident, he was suffering stress, grief

and upset as a result of the issues relating to his children (page 74 line 15). He was then

asked about losing his composure as a result of the strain which he was under:

“[page 75 line 14] Q: … you’ve no recollection of taking a garden post from your

back garden. Do you remember doing that at all? A: No. Q: Is that possible? A:

Could’ve been. Q: Yes. Brandishing that at [the appellant], and tried to strike him

with that, can you remember, did that happen? … Could that have happened? A: It

“[page 77 line 3] Q: … will you not agree with me that you did somewhat lose your

composure here and started wildly lashing out at people? A: Aye. Q: You said

that? A: Mh hmm. I was angry ‘cause I’d just had my kids taken off me, two weeks

before. Q: And that must have weighed very heavily with you, I’m sure? A: Mh

hmm. Q: … and [the appellant and Charlene] had arrived at your invite with their

own young children who I think are not far removed from the ages of your own

children, is that right? A: Yes. Q: … Did that upset you? A: Yes. Q: You lost it,

didn’t you? And you started waving this garden post around? A: … I’m no actually

[10] In re-examination, the complainer retracted or denied much of what he had said in

[11] Miss Sanderson stated that she did not drink. She had not seen everything that

happened during the incident. She had been preoccupied as a result of losing her children.

Latterly she had become scared. In examination-in-chief, she said:

“[page 90 line 5] … when [the complainer] does drinking, I don’t let him come near

[page 96 line 3] … When [the complainer] drinks, he’s not hisself …

[page 102 line 7] There was a bit of wood that we had … we had a bit of wood in the

In cross-examination by the appellant’s agent, the following exchanges took place:

[page 138 line 14] Q: Did you see [the appellant] having to take the bit of wood off

[the complainer]? A: I seen that, yeah, but I never seen [the complainer] picking a bit

… Q. Right. Hang on. You saw that? You saw [the appellant] take the bit of wood

[page 139 line 18] Q: So does it come to this, Miss Sanderson: you didn’t see all of

the incident, and you accept that you see [the complainer] having this piece of wood

[page 142 line 2] [The complainer] was out of control because he was on his tablets.”

“[page 149 line 11] Q: … So when Mr Brown [the appellant’s solicitor] put the

suggestion to you that [the appellant] had taken a piece of wood from [the

complainer], did you see that or not? A: I kind o’ seen it. Well, just, I really can’t

[page 151 line 13]: Q: The ladies and gentlemen might infer from you saying [the

complainer] was out of control that he was somehow behaving aggressively or

violently. Is that the truth? A: On these tablets, when he mixes medication wi’

drink, yes he can be. Q: He can be what? A: Aggressive. Q: Aggressive. On that

[12] The appellant described how he and his partner Charlene and her two children had

intended to go to Mr Ali’s shop and then to the swing park. At the shop, they met the

complainer, whom they knew. He asked them to go into the shop and buy drink for him.

He did not want the shopkeeper to be able to tell his partner Louise that he had bought

drink. He was already showing signs of having been drinking. The appellant went into the

shop and bought the complainer a bottle of Buckfast. The complainer then invited them all

to his house. The appellant knew that the children of the complainer and his partner had

just been taken into care. However he thought that Charlene’s two young children would be

welcome, and accordingly accepted the invitation. Drink was consumed by the complainer,

the appellant, and the co-accused (but not by Louise Sanderson). The complainer was

becoming more upset. In examination-in-chief, the appellant explained:

“[Page 12 line 24] … as the night or the day was going on, he was gradually getting

more upset. I think he was starting tae, you know, I know a lot o’ people that have

been drinking start getting a wee bit more emotional especially, obviously, what’s,

you know, whatever’s happened wi’ his kids. You know, he’s started getting a bit

more emotional, and he’s started crying at one point … He was trying tae talk to me

about it … I’ve not got any kids of my own. I said, probably the best person tae talk

to would be Charlene [the co-accused] … about this, which he did …

[Page 15 line 17] … a kind o’ an argument started. He [the complainer] was starting

to get quite loud. Quite aggressive towards Charlene … Charlene and [the

complainer] ended up going out in tae the garden … then ah’ve got up and ah’ve

[Page 16 line3] Q: Why did you do that? A: Because I could see [the complainer]

kind o’, he was kind o’ pushing at Charlene, he was pushing at her and Charlene was

… Charlene was trying … to console him … Q: And what was his response? A. By

pushing her. Pushing her away … He was quite … aggressive lookin’ …

[Page 16 line 21] I’ve actually said tae Charlene, let’s just get … obviously there was

a lot o’ swear words involved, and I’ve tried to get Charlene tae get out the back

[Page 17 line 24] … as we went out, there’s been a bit o’ a ruckus, really, pushing and

[Page 18 line 6] … we’d been trying to get out the back … ah had ma back turned tae

[the complainer], Charlene was facing me and all ah can remember was Charlene

shouting ‘Sean’. I’ve automatically came and jumped forward towards Charlene but

turned at the same time. Just then, I felt something hit ma back. I then looked, to see

in his hands was a, which I could only describe as, like a two by four, a block o’

wood … it was like a fencepost … Q: … who had that? A: [The complainer].

[Page 19 line 2] I felt something hit ma back … I had turned round and just then, he

was gonnae strike me with it again and I’ve tried to grab it and by this point, we’re

kind o’, a tussle to say the least … he was, really, really angry. He was shouting …

he was just, he was really intoxicated. Really, really drunk. I couldn’t make out

[Page 20 line 11] I couldn’t get the stick off him … Charlene was, I believe she was

obviously trying tae protect me as well, at the same time … He’s took it back tae hit,

and get another swing wi’ the stick and he’s actually got Charlene full force in the

[Page 21 line 4] … as far as I could tell, Charlene was knocked out … because she was

lying in a, like jaggy nettles … and she wasnae moving … Then I turned round to try

and get the stick back off him … I managed to get it off him and threw it away …”

The appellant went on to describe the complainer holding a garden hoe, which Charlene

managed to remove (page 22 line 20). The appellant said that the complainer was punching

them, and he was punching the complainer. He said that he was clear that it was the

complainer who attacked him (page 23 line 11). He said that he would not need a weapon to

deal with the complainer as he (the appellant) was 6½ feet tall and the complainer was more

than a foot smaller than him (page 25 line 11) and also under the influence of alcohol (page

25 line 23). He had some sympathy for the complainer (page 28 line 4).

[13] In cross-examination by the procurator fiscal depute, the following exchanges took

“[Page 46 line 9] Q: What was it that made you lose control of your temper? A: I

[Page 53 line 1] Q: … you lost control of your temper … What was actually

happening when you were tussling? A: I was trying to get the stick off him.

[Page 55 line 4] Q: [The complainer] called the police because he was the one under

attack, and you can’t get away from that fact, can you? A: You can’t get away fae

the fact that [the complainer] started it, picked up a stick and started hitting us with

[14] Counsel for the appellant submitted that, notwithstanding the jury’s rejection of the

appellant‘s special defence of self-defence, there was an evidential basis upon which the jury

could, if they so chose, return a verdict of guilt subject to the qualification that the appellant

had been provoked. The transcripts demonstrated that. Questions of credibility and

reliability were for the jury. The jury were entitled to accept parts of a witness’s evidence,

and to reject other parts. There had been evidence which, if accepted, satisfied the four

requirements for provocation. A direction relating to provocation was therefore necessary.

The lack of such a direction resulted in a miscarriage of justice (either on the basis of McInnes

v HM Advocate 2010 SC (UKSC) 28 or Brodie v HM Advocate 2013 JC 142). The conviction

should be quashed, and a conviction in identical terms but with the rider “under

provocation” substituted. The sentence of 18 months should be quashed, and a lesser

[15] The advocate depute submitted that, on a proper understanding of the evidence, the

four-stage test for provocation was not satisfied. The sheriff had heard the evidence. He

had seen the witnesses and had an opportunity to assess their demeanour. The appeal court

[16] The court’s attention was drawn to features of the appellant’s evidence which were

at odds with other witnesses’ evidence (for example, his denial of his own intoxication, and

the fact that he claimed to have been hit on the back with the piece of wood when there was

no record of any injuries to the appellant). His kicking and punching of the complainer

could not be regarded as “instantaneous”. The only evidence of kicking was in the kitchen,

once the complainer had been pursued from the garden into the kitchen. There was no

evidence of loss of control on the appellant’s part. The appellant himself denied any loss of

control. The kicking and punching of the complainer was disproportionate.

[17] There had been two competing accounts. The sheriff was in the best position to

assess those accounts and to decide whether or not a direction relating to provocation was

required. There had been no miscarriage of justice. The appeal should be refused.

[18] The question at issue is whether the sheriff should have given the jury directions

[19] It is not in dispute that it is the jury’s task to decide questions of credibility and

reliability, to determine what evidence to accept and what evidence to reject, and to

conclude what inferences could be drawn from evidence which they accepted. Similarly it is

not in dispute that the jury are entitled to accept parts of what a witness said, and to reject

[20] In the present case, we consider that it was open to the jury, on the evidence, to

conclude that the following circumstances had been sufficiently established (bearing in mind

that the appellant did not have to prove anything, and in particular did not have to satisfy

the rules of corroboration or meet the standard of proof of “beyond reasonable doubt”).

 On 8 June 2016 the complainer and his partner were suffering considerable grief

 The complainer had consumed drink and medication, which could make him

 When the appellant and his co-accused Charlene, who had arrived accompanied

by her children, tried to offer advice and consolation, the complainer became

angry, upset and distressed, started crying, and ultimately became aggressive.

It was also open to the jury to accept the evidence of three witnesses (Louise Sanderson, the

appellant, and indeed the complainer himself) to the effect that the complainer, when angry

and upset, had possession of a piece of wood which resembled a fence post, which he

brandished and (if the jury accepted the appellant’s evidence on this matter) used to strike

[21] As the jury convicted the appellant of assault, they clearly rejected his special defence

of self-defence. They may have taken several factors into consideration, including the height

and build of the appellant compared with that of the complainer, and the fact that the

complainer was drunk and was outnumbered by two to one. But it does not necessarily

follow that the jury would have rejected the concept of an assault committed “under

[22] The Jury Manual sets out a possible direction on provocation where self-defence is

“Provocation is quite distinct from self-defence, and shouldn’t be considered along

with it. I’ve already told you about self-defence, so first you decide if the accused

acted in self-defence. Only if you thought he hadn’t, would you again look at the

Provocation may arise for consideration when each one of these four circumstances

1) where the accused has been attacked physically, or where he believed he was

about to be attacked, and reacted to that. The danger of attack must be immediate,

not in the future. The belief must have been held on reasonable grounds, even

though they might turn out to have been mistaken. A mistaken belief must have had

an objective background. It can’t be purely subjective or of the nature of a

3) where he has retaliated instantly and in hot blood. If he had time to think, and

4) where the violence of his retaliation was broadly equivalent to the violence he

faced. There must be no gross disproportion between the accused’s violence and the

violence which prompted it. It’s the degrees of violence you compare. The fact that

the effect of the retaliating violence was more serious than that of the provoking

violence doesn’t necessarily mean that it was grossly disproportionate.”

[23] In the present case we consider that there was an evidential basis for provocation

which the jury could accept if they were so minded, namely a physical attack on both the

appellant and his co-accused with a piece of wood which was like a fence post; a resultant

loss of control on the part of the appellant (despite his assertion to the contrary); a

retaliation which might be regarded as “instantaneous”; and a level of violence (punching

and kicking, without a weapon) which a jury might consider broadly equivalent to the

attack on the appellant. We accept that there might be differences of view about each one of

those matters: but they were relevant matters in the context of provocation which, in our

[24] It may well be that, for reasons of tactics or effective presentation, neither the

prosecution nor the defence mentioned “provocation”. However as was explained in

Ferguson v HM Advocate 2009 SCCR 78, it is for the trial judge to give such directions as are

necessary in an endeavour to ensure that the accused is neither over- nor under-convicted.

In that case Lord Osborne, delivering the opinion of the court, quoted with approval certain

guidance given by Lord Bingham of Cornhill in R v Coutts [2006] 1 WLR 2154, at

“The public interest in the administration of justice is, in my opinion, best served if in

any trial on indictment the trial judge leaves to the jury, subject to any appropriate

caution or warning, but irrespective of the wishes of trial counsel, any obvious

alternative offence which there is evidence to support… I would also confine the rule

to alternative verdicts obviously raised by the evidence: by that I refer to alternatives

which should suggest themselves to the mind of any ordinarily knowledgeable and

alert criminal judge, excluding alternatives which ingenious counsel may identify

through diligent research after the trial. Application of this rule may in some cases

benefit the defendant, protecting him against an excessive conviction. In other cases

it may benefit the public, by providing for the conviction of a lawbreaker who

deserves punishment. A defendant may quite reasonably from his point of view,

choose to roll the dice. But the interests of society should not depend on such a

[25] Lord Bingham went on to advise that any question of unfairness in the trial arising

from such an approach on the part of the trial judge could be avoided if notice were given at

an appropriate time of the trial judge’s intention to give directions in relation to an

“There may be unfairness if the jury first learn of the alternative from the judge’s

summing up, when counsel have not had the opportunity to address it in their

closing speeches. But that risk is met if the proposed direction is indicated to counsel

at some stage before they make their closing speeches. They can continue to

discount the alternative in their closing speeches, but they can address the jury with

[26] While the plea of provocation would not exculpate the appellant (in contrast with the

special defence of self-defence), if a rider of “under provocation” were to be added by the

jury, the crime would be less serious and any sentence should reflect that.

[27] In this case, we are unable to conclude that no reasonable jury could, on the

evidence, reach the view that there was provocation (cf Duffy v HM Advocate 2015 SCL 544 at

paragraph [22]). We consider that the option of provocation should have been made

available to the jury by means of the necessary directions. Further, following the guidance

given in Ferguson v HM Advocate 2009 SCCR 78 and R v Coutts [2006] 1 WLR 2154, the safest

“ … communicate that view in court, but outwith the presence of jurors, to counsel,

before they address the jury, indicating that it is proposed to give a direction upon

such an alternative verdict or verdicts. In this way, any possible unfairness may be

[28] We are also satisfied that the lack of directions relating to provocation resulted in a

miscarriage of justice, whether that issue is assessed in terms of the test in McInnes v HM

Advocate 2010 SC (UKSC) 28, 2010 SCCR 296 (“a real possibility that the jury might

reasonably have come to a different verdict”) or Brodie v HM Advocate 2013 JC 142, 2013

SCCR 23 (a more flexible test, as set out in paragraphs 40 to 43). However we accept that

what is in issue in this appeal is not the question of guilt, as the jury rejected self-defence,

but the degree of culpability. Accordingly we accept counsel’s submission that the

appropriate disposal would be to allow the appeal and to substitute for the existing

conviction a conviction in identical terms, but with the rider “under provocation”.

[29] We grant the appeal against conviction. We quash the conviction, and substitute

therefor a conviction in identical terms but with the rider “under provocation”. To reflect

the element of provocation, we quash the sentence of 18 months and substitute therefor a

sentence of 16 months.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> GRAHAM, APPEAL AGAINST CONVICTION BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_4 (11 January 2018) URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_4.html Cite as: [2018] ScotHC HCJAC_4, [2018] HCJAC 4

Scottish High Court of Justiciary Decisons