Culpable homicide conviction quashed for misdirection

A conviction for culpable homicide had to be quashed where the trial judge's directions to the jury repeatedly linked the crime of assault with recklessness and gross carelessness, which was not in issue at trial and could have misled the jury, the Criminal Appeal Court has ruled.

Lords Malcolm, Turnbull and Pentland gave their decision in allowing the appeal of David Ditchburn, who was found guilty on a charge that he did assault John Ashwood, "strike him on the head and kill him". 

The incident took place in a flat with three people present. There was evidence of the deceased having become aggressive and punched the accused on the side of the accused's jaw. The accused, who pled self defence, hit the deceased on the jaw in return, all three then sat down, and subsequently the deceased slumped to the floor with blood coming from his mouth. There was expert evidence of a multi-factorial death and that the assault was not in itself likely to cause a fatality.

Defining culpable homicide, the judge directed the jury that the unlawful act leading to the death "must be intentional or at least reckless or grossly careless", going on to explain the latter terms. On appeal the accused argued that, in the whole context of the case, the jury could only convict on the basis of an assault causing death, something which would necessarily involve deliberate conduct on his part.

The judge and Crown both accepted that there had been a misdirection, but the Crown argued that while the reference to recklessness was inappropriate, and potentially apt to confuse, the issue for the jury was clearly one of deliberate assault as a result of which the deceased died.

Giving the opinion of the court, Lord Malcolm accepted that the jury could have been confused by directions that contradicted an earlier, correct definition of assault. Causing death by reckless conduct, as opposed to assault, was a separate crime, with a distinct mens rea, and had not been charged. "Those directions could have caused the jury to convict even though satisfied that the appellant did not assault the deceased; or that he acted in defence of the other man, but nonetheless behaved recklessly or with gross carelessness."

The court allowed the appeal but granted a Crown motion for authority to bring a fresh prosecution on the charge. The judges also issued a reminder to trial judges to tailor the directions in the jury manual to the particular circumstances of the trial and the issues the jury required to determine.

Click here to view the opinion of the court.