Scottish High Court of Justiciary Decisons

At advising on 22nd June 1950,—

LORD JUSTICE-GENERAL (Cooper).—The appellant was indicted on the charge of murdering his father by stabbing him in the heart and lung with a knife. He pleaded not guilty and tendered as a special defence that on the occasion libelled he was acting in self-defence. The jury returned a verdict of culpable homicide and he was sentenced to ten years' penal servitude, the reduction of the charge from murder to culpable homicide being attributable to certain elements of provocation and diminished responsibility which arose on the evidence and with which we are not now concerned. The presiding Judge withdrew the special defence from the consideration of the jury, and the single ground of attack upon the conviction is that he erred in so doing.

The withdrawal of a special defence is always a strong step, but there are circumstances in which it is the duty of the presiding Judge to take that step. I refer to the Full Bench case of Kennedy v. H. M. Advocate, which was concerned, not with one of the recognised special defences, but with the plea of drunkenness presented for the defence in support of the reduction of murder to culpable homicide. In my view, the pronouncements there made regarding the duty of the presiding Judge are just as applicable to the withdrawal from a jury of a special defence as they are to the withdrawal from a jury of a plea of drunkenness. Adapting these pronouncements to the present ease, I am prepared to affirm that it is the duty of the presiding Judge to consider the whole evidence bearing upon self-defence and to make up his own mind whether any of it is relevant to infer self-defence as known to the law of Scotland. If he considers that there is no evidence from which the requisite conclusion. could reasonably be drawn, it is the duty of the presiding Judge to direct the jury that it is not open to them to consider the special defence. If, on the other hand, there is some evidence, although it may be slight, or even evidence about which two reasonable views might be held, then he must leave the special defence to the jury subject to such directions as he may think proper.

It is next to be observed that in this case self-defence is pleaded in answer, not to a simple assault, but to an act of homicide, admittedly committed by the appellant, and it is so pleaded with the intent of exculpating the appellant upon the view that in the proved circumstances the homicide was justified. Exculpation is always the sole function of the special defence of self-defence. Provocation and self-defence are often coupled in a special defence, and often I fear confused; but provocation is not a special defence and is always available to an accused person without a special plea. The facts relied upon to support a plea of self-defence usually contain a strong element of provocation, and the lesser plea may succeed where the greater fails; but when in such a case murder is reduced to culpable homicide, or a person accused of assault is found guilty subject to provocation, it is not the special defence of self-defence which is sustained but the plea of provocation. I, of course, respectfully agree with Lord Justice-Clerk Aitchison in Hillan that self-defence and provocation "in many cases overlap," and with Lord Jamieson in Kizileviczius that "in many respects the considerations which apply to them are the same"; but I desire to emphasise that the pleas are not identical but entirely separate and distinct, and that the special defence of self-defence must either result in complete exculpation or be rejected outright. Indeed, I am bound to say that I have considerable difficulty still in understanding how, in the case of Hillan, self-defence came to be regarded as a relevant plea.

Now, in the present case, as I have observed, the verdict has reduced the quality of the appellant's act from murder to culpable homicide on other grounds, and the sole question for our consideration is whether there was any evidence on which a reasonable jury could have held that the appellant was justified in stabbing his father to death, with the result that he ought to be exculpated and freed from all penal consequences.

I take briefly the proved facts at and shortly prior to the fatal assault. At least five deep stab wounds were inflicted on the deceased—three in the chest and two in the back. Two penetrated the heart and one the left lung. Death rapidly ensued. The appellant had encountered his father about 6.30 A.M. at the entrance to the lavatory of the house in which the family lived, and the father, still apparently under the influence of a family quarrel which had occurred the previous night, twice ordered him in strong language and with threatening gesture to go to his room. The appellant returned to his room and his father remained in the lavatory, apparently engaged in washing or shaving or preparing to do these things. The appellant procured in his room the sheath knife with which the assault was committed, and then deliberately returned to the lavatory, his object, according to his evidence, being to warn his father that, if he assaulted him, he would use the knife. He found his father looking into the mirror. The father turned round, ordered him to get out, and again turned away; and as he turned away the appellant struck the first blow in the shoulder or back of his victim. His father turned round once again and received the further stabs. The father was wearing a shirt and trousers and had no weapon of any kind. Though addicted to strong language and threatening gestures, the father, according to the appellant's own admission, had only once struck him in his life, the incident referred to being a comparatively trifling one which had occurred several years previously when the appellant was a boy of sixteen.

Now, I need not rehearse the familiar requisites of a plea of self-defence. On the facts briefly summarised I am clearly of opinion that it is impossible on any view of the evidence to find the slightest warrant for inferring that the appellant had any justification that morning for the terrible action which he took in any fear for his own safety, or that he was in danger, or had any grounds for so believing. I assume in the appellant's favour that the culpability of his action falls to be reduced because of his physical and mental state, coupled with the provocation which the jury may have been entitled to infer from his unhappy home life. These elements in my view have received full value in the reduction of the verdict from murder to culpable homicide. I cannot find in the general background, nor in the quarrel of the previous night, nor in anything that happened that morning, any grounds for treating the appellant as having acted in self-defence; and, if I had been in the place of the presiding Judge, I should have acted as he did.

As regards the argument urged upon us that the appellant rightly or wrongly thought that he was in danger of his life and the reliance placed upon the case of Owens, I should like to say that, when self-defence is supported by a mistaken belief rested on reasonable grounds, that mistaken belief must have an objective background and must not be purely subjective or of the nature of a hallucination. I am of opinion that the appeal fails; and on the question of sentence I see no reason to disturb the discretion exercised by the presiding Judge.

LORD CARMONT .—I am in complete agreement with your Lordship.

LORD KEITH .—I agree in all that your Lordship has said. I should like to add that some day this Court may have to examine rather more closely the limits of the plea of self-defence and its relation to the plea of provocation. There appears to me to be a growing tendency to raise self-defence in cases where the species factiare not really apt to raise the plea. The classic examples of self-defence, according to the institutional writers, are cases where a person is in apprehension of immediate danger to his life, or cases where self-defence has been used in resistance to attempted rape, or to a housebreaker, or to a robber, and it may be, also, that where a person has reasonable apprehension of immediate serious injury to his body, leading to permanent injury or demembration, he may be entitled to rely upon the plea of self-defence. Outside these categories of cases self-defence is, I think, frequently used as a misnomer for provocation, and in particular I share your Lordship's difficulty in understanding how self-defence came to be admitted in the case of Hillan. Provocation seems to me to have been the relevant plea either in exculpation or mitigation, and it may be that some day that case will have to be reconsidered.

So far as the present case is concerned, I can see no relevant grounds whatever to support the plea of self-defence. Mr M'Kechnie suggested that, because the appellant had reason to think that his father was exhibiting maniacal tendencies which might react to the danger of himself or of those in his household, he was entitled to use the extreme violence with a lethal weapon that was used in this case. I am far from suggesting that there was any evidence at all to support the view that the father was exhibiting the tendencies referred to, but, in any event, I cannot assent to the view that a person who has some reason to apprehend a remote danger to himself from a possible assailant is entitled to seek out that assailant and to kill him in order to remove a possible, and it may be an unfounded, fear of danger to himself. That would be to go far beyond anything that has ever been said or decided and, indeed, to fly in the teeth of the ratio of self-defence in a case of homicide.