Description
Criminal Note of Appeal Against Conviction:- On 9 December 2009 the appellants were convicted on indictment at Glasgow Sheriff Court after trial of the following charge:- "On 3 October 2008 at ... you ... did assault SL ... punch him on the head, knock him to the ground and attempt to kick him, all to his severe injury, permanent disfigurement and to the danger of his life". The first appellant had lodged a special defence of self-defence in the following terms:- "...Philip McCloythe pleads not guilty to the charge upon the indictment, and specially and without prejudice to this plea states that on the occasion libelled Philip McCloy acted in self defence to the limited extent that he punched SL ... once upon the head thus knocking him to the ground, Philip McCloy having a reasonable apprehension that an imminent attack by SL upon ... Daniel Collins was about to take place". The second appellant did not lodge any special defence and his position at trial was simply one of denial and that he did not involve himself to any extent with SL. In his charge the sheriff stated:- "...if there were other ways he could reasonably have avoided the attack he should have taken them. What this means is this, if there was a safe means of escape, that's the course the accused should have taken". The first appellant appealed on the grounds that the sheriff misdirected the jury on the issue of self-defence of another as the direction which the sheriff gave was appropriate if the first appellant had been acting in self-defence of himself but that was not his position as he was acting in self-defence of another. It was submitted on behalf of the first appellant that the jury may have thought that if the first appellant could have escaped, he should have, regardless of what concerns he might have had about what might happen to the second appellant. Counsel on behalf of the second appellant adopted these submissions and further submitted that as the appellants were meant to have acted in concert, it would be reasonable to infer that acquittal by self-defence of the first appellant would have resulted in an acquittal of the second appellant. It was conceded here by the Crown that there had indeed been a misdirection, however, it was not material and did not result in a miscarriage of justice. Here the court considered whether the misdirection in relation to self-defence of another did lead to a miscarriage of justice.
0141 553 4890
