APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Carloway Lord Bonomy	[2012] HCJAC 89 Appeal No: XC700/11 NOTE delivered by LORD EASSIE in the Application by JAMES WILLIAM PURVES Appellant; against HER MAJESTY'S ADVOCATE Respondent: For Leave to Appeal to the United Kingdom Supreme Court _______

Appellant: Carroll, Solicitor advocate; Paterson Bell

Respondent: Scullion, AD; Crown Agent

22 May 2012

[1] The appellant in this application for leave to appeal to the Supreme Court of the United Kingdom was convicted after trial in the High Court of Justiciary of the culpable homicide of Paul Jared Scott, upon whom he inflicted fatal stabbing injuries with a knife. Prior to the trial the appellant lodged a special defence of self-defence in these terms:

"...the said panel was acting in self-defence and in the honest belief and reasonable apprehension that his life and physical well-being were at risk

when the now deceased who was acting with others forced entry to the then residence of the panel intent on violence to him and other persons within."

[2] The circumstances of the case and the evidence led at the trial are set out by the trial judge in his report. The appellant gave evidence at his trial and a summary of that evidence is provided by the trial judge in these terms:

"Purves gave evidence on his own behalf. To summarise, this was to effect that he had been in the house that evening with James Ritchie and the two girls. He had not expected anyone to arrive at the house. The door opened and a crowd of people came in. He was frightened and terrified. He rushed out of the lounge to face them. He was confronted by Paul Scott who had knife. Paul Scott tried to stab him with the knife. Fortuitously, he managed to disarm Paul Scott and thereafter had the knife in his own hands. Notwithstanding this, Paul Scott pressed home an attack upon him. He recollected trying to stab him "a couple of times to get him off". He could not account for all the wounds and had no recollection of inflicting them beyond what he admitted.

The defence advanced on Purves' behalf was, of course, self defence. The only person to suggest that Paul Scott was armed and attacked Purves was Purves himself. All the other witnesses spoke to Paul being unarmed, passive, and defenceless. Unsurprisingly, the jury accepted this account and rejected the account of Purves."

[3] Following his conviction the appellant lodged a Note of Appeal containing, as respects conviction, three grounds of appeal which, put shortly, were -

(i) misdirection of the jury by the trial judge "in that he failed to provide adequate direction on the right of the appellant to defend against unlawful intrusion of his home and to take such action as is reasonable to eject intruders."

(ii) misdirection by the trial judge "in that he failed to provide adequate direction on the law of self-defence, as it applied to facts of this case." and

(iii) a verdict which no reasonable jury could reach.

[4] The application for leave to appeal was considered by a single judge in terms of section 107(1) of the Criminal Procedure (Scotland) Act 1995 and was refused. The appellant required that the application for leave to appeal be considered by the High Court (a bench of three judges) in terms of section 107(5) of the 1995 Act. At this point there was lodged on behalf of the appellant a Minute in terms of Rule 40 of the Act of Adjournal bearing to raise a devolution issue. Paragraphs (vii) to (ix) of that lengthy Minute contain what appears to be the salient contention and they read:

"vii. The trial judge failed to address the issue of rights of the minuter under Article 8(1)[scilicet of the European Convention on Human Rights] when giving directions in law to the jury. He states that there are no such rights in the circumstances of this case, with the reference being 'beyond even irrelevance and bordering on the absurd'.

viii. As a result, the conviction of the minuter is founded upon the determination of matters in which Article 8(1) rights of the minuter were left out of consideration.

ix. Without directions in law that due regard must be given to the special circumstances of the minuter seeking to defend rights under Article 8(1) in an incident of escalating violence that moved quickly to involve self-defence of the person within his own home, the jury would be bound to leave the material facts to one side. As a consequence, omitting to give due regard to these material issues resulted in an unfair trial, contrary to Article 6(1) of the Convention."

At the trial the defence did not invite the trial judge to give any direction respecting Article 8 ECHR. No devolution issued was raised before the trial judge, or in the Note of Appeal. The application for leave to appeal to the High Court of Justiciary was refused by the "second sift" judges.

[5] In moving his application for leave to appeal to the Supreme Court of the United Kingdom, Mr Carroll contended, as best we understood him, that Article 8 gave protection to a person's home; consequently, it was submitted, Article 8 thus conferred a right to use force against a trespasser, albeit that Mr Carroll expressly disavowed any contention that the Article gave the householder a right to use lethal force in the protection of his home. The trial judge therefore ought to have directed the jury on Article 8 and instructed them that the appellant had some (undefined) right to use force to protect his home against intrusion and that it behoved the prosecutor (and not the defence) to intervene to request the trial judge to give such direction. Since the trial Advocate depute had not made such an intervention, so ran the contention, a devolution issue in terms of the Scotland Act 1998 arose.

[6] We refused leave to appeal to the Supreme Court of the United Kingdom.

[7] First, in our view, it is evident that the extent to which a householder may deploy force to remove a trespasser was not a relevant issue in the trial. As the Advocate depute pointed out in his opposition to Mr Carroll's application, it was not the position of the appellant at his trial that his use of the knife with which he killed the deceased was ever in defence of his property or the sanctity of his dwelling. Rather, the appellant's position was that the deceased came to the house armed with the knife and sought to stab the appellant, whereupon he (the appellant) managed to disarm the deceased and thereafter used the knife in protecting himself from a continuing attack upon his person by the deceased. Secondly, as Mr Carroll made plain, he did not contend that Article 8 ECHR warranted the use of lethal force; and Mr Carroll was unable to offer any intelligible basis upon which the rules respecting the use of lethal force in defence of the life of a person were, or might be, different if the assault happened to take place within the home. In those circumstances we are unable to see how the provisions of Article 8 ECHR have any pertinence to the issues before the jury in this trial.

[8] It should be added that while Mr Carroll asserted that Article 8 conferred on the householder a right to use force in the protection of his home from intruders, no authority was offered to vouch that assertion; nor did Mr Carroll seek to support that assertion by any textual examination of the article. There was therefore in our view nothing to displace the prima facie view that, while the article no doubt enjoined Contracting States to protect the home of the citizen, the means and mechanisms for arranging that protection were a matter for a national law.

[9] Finally, as the Advocate depute pointed out, the defence did not invite the trial judge to make the direction which is now sought, nor was any argument addressed to him at the trial suggestive that any devolution issue arose by virtue of the matter not having been raised by the Advocate depute conducting the trial. Similarly, the terms of the Note of Appeal did not raise any issue respecting Article 8 of the Convention or any suggestion that any Convention right had been breached. The scope of the appeal for which leave was sought was settled by the terms of the Note of Appeal (section 110(4) of the 1995 Act) and no application had been made to amend those grounds of appeal. There was thus no devolution issue properly before the Court.

[10] While these procedural objections no doubt have force, it is in our view perhaps more significant that the fact of no devolution issue having been canvassed at trial or in the Note of Appeal underscores the absence of any pertinence of the general principle of protection of the home and private life envisaged by Article 8 ECHR to the only real issues in the trial of the appellant.

[11] In these circumstances the Court did not consider it appropriate to grant leave to the applicant to raise such matters before the United Kingdom Supreme Court.