APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Drummond Young Sheriff Principal Lockhart	[2014] HCJAC 81 HCA/2014/002341/XJ   OPINION OF THE COURT   delivered by LADY PATON   in   APPEAL BY STATED CASE   by   GRAHAM DUFFY   Appellant;   against   PROCURATOR FISCAL GLASGOW   Respondent:   _____________

 

Appellant:  C Mitchell;  John Pryde & Co

Respondent:  Fairley QC AD;  Crown Agent

 

1 July 2014

[1]        In this appeal by way of stated case the appellant, a company director aged 47, does not dispute that he was in physical contact with his wife as she sat under the influence of drink on a backless stone bench in Royal Exchange Square Glasgow.  Their movements were captured by a CCTV camera.  The evidence during the trial consisted of the CCTV footage and evidence from three police officers, two of whom were on foot patrol, and one who was working in the CCTV control room.  The parties’ movements are described in detail in the stated case.

[2]        For present purposes, all that we require to do is draw attention to findings‑in‑fact 7, 8 and 10, which record the appellant as having pushed his wife forcibly so that she fell from the bench to the ground;  struck his wife on the face;  thrown his wife to the ground, held her down and kicked towards her face.  Finding‑in‑fact 14 records that

“throughout the incident, the appellant had a reasonable means of escape from the threat of assault by Mrs Duffy in the form of standing back one or two paces”. 

 

Finding‑in‑fact 15 records that

“the level of force used by the appellant was excessive in relation to Mrs Duffy’s actions towards him.”

 

When the police officers arrived at the scene ,Mrs Duffy was noted to have slight reddening to the left side of her face (finding‑in‑fact 17).

[3]        The sheriff ultimately rejected the appellant’s defence of self‑defence and convicted the appellant of assault.  A person can only be acquitted on the basis of self‑defence if three conditions are satisfied:  first, the appellant must have been attacked or must reasonably have believed himself to have been in imminent danger of attack and must have acted on that belief.  The danger must be immediate.  The belief must rest on reasonable grounds, even though these grounds may be mistaken.  Second, the appellant can only use violence as a last resort.  If there are other ways of avoiding the attack, he should have taken them.  If he could have run away, he should have done so.  Thirdly, the appellant must have used no more than a reasonable amount of force.  The aim of self‑defence is only to stop an attack.  The appellant does not have a licence to use force grossly in excess of what is needed for his defence.  If he goes beyond reasonable force, he is guilty of the offence. 

[4]        In our opinion, bearing these conditions in mind, the sheriff was well entitled to reject the defence of self‑defence in the circumstances of this case.  Mrs Duffy was under the influence of drink.  She was sitting on a backless stone bench.  As the sheriff notes in paragraph 28 of the stated case:

“It was abundantly clear that at almost every point, without in any way abandoning Mrs Duffy, the appellant had the option of standing back a pace of two.  Mrs Duffy was in no state to chase after him.  Given his evidence about her behaviour a few weeks earlier it seemed reasonable to me that he should have expected that her behaviour might be difficult when she again appeared to be in a similar mood or disposition and that he should have taken the simple precaution of staying out of arms’ reach.  Further the Crown evidence, which I accepted, undoubtedly demonstrated the use of excessive force.  In Mrs Duffy’s state she would not have been particularly difficult to control.”

 

[5]        We agree with the sheriff’s comments.  We are not persuaded that the necessary elements of self‑defence were established.  Standing the appellant’s behaviour as recorded in findings‑in‑fact 7, 8 and 10, we are satisfied that the sheriff was entitled to convict.  We accordingly answer question 1 in the affirmative.