No provocation direction needed where not live issue at trial
A trial judge did not misdirect a jury by failing to give directions on provocation where the accused's defence was that she was not involved in the assault in question, though it was argued on appeal that part of her police statement gave rise to an inference of provocation.
Lord Justice General Carloway, Lord Menzies and Lord Turnbull gave the ruling in refusing an appeal against conviction by Ashley Duncan, one of three people charged with assault to severe injury, permanent disfigurement and danger of life and attempted murder of Jordan Jones.
On the evidence there had been a background of animosity between the complainer and one of the co-accused, arising out of their respective relationships with a girl. The assault had taken place in the girl's flat. There had been “play fighting” between the complainer and the two co-accused which had grown aggressive but had then calmed down. Some time later the the assault charged on the complainer had taken place with (on the Crown evidence) the appellant joining in and all three leaving the flat after it.
The appellant gave various accounts to the police, including that she had joined in when the complainer started fighting with a different girl at another address on the previous day; that at the locus charged the complainer had pulled her hair, caused her bruising and called her a slut, and she had “kicked off” and had been assaulted by the complainer then, before the co-accused had arrived; and that she could not remember what had happened after that but had just left.
At trial the defence position for each accused (none of whom gave evidence) was that the eyewitnesses' accounts were unreliable or alternatively should leave the jury with a reasonable doubt whether they were involved. The judge took the view that the evidence painted a clear picture and there was no basis for a plea of provocation: any interaction between the complainer and the appellant had been some time before the assault charged. Provocation had not been mentioned.
On appeal it was argued that the jury would have been entitled to find, on the basis of some of the appellant's statements, that the appellant had been attacked and had lost her self control, and the judge had been obliged to direct them on provocation. This was required unless it could be concluded that no reasonable jury could on the evidence find provocation established.
Delivering the opinion of the court, Lord Carloway said the fundamental principle in relation to alternative verdicts was that “as a generality, the trial judge is only required to direct a jury on the issues which are live at the trial”. While there were some differences in the authorities, the general principle was that the obligation on the trial judge was “to charge on verdicts in accordance with the manner in which the case has been presented to the jury by the parties”.
He continued: “The judge should not speculate or embark upon areas of possible alternative verdicts which have neither been canvassed in the evidence nor formed part of the speeches to the jury. The judge ought not to present an alternative verdict, which has not been canvassed by the parties, unless the prospect of that verdict is an obvious one...
“The principle is based upon that of fairness. It follows that there is an exception where, on the contrary, a direction on an alternative is required as a matter of fairness.”
The Lord Justice General concluded: “Applying this principle to the present case, the parties did not, in their addresses to the jury, raise the prospect of a verdict of assault only, based upon provocation. There was no need for the trial judge to do so unless that alternative verdict was an obvious one on the evidence, such that the public interest necessitated that the direction be given, notwithstanding any unfairness which might thereby ensue... if anything, any element of provocation related to an earlier episode, after which matters had calmed down. Any earlier violence had no immediate relationship to the attack [charged].
“In presenting the defence case, the appellant’s position was to the effect that the evidence was so incredible or unreliable that the jury ought not to be satisfied that the appellant had participated in the assault; not that she had done so under provocation. In that situation, had the judge given the direction, it would have had to have proceeded on a hypothesis that the appellant had participated in the attack. Such a direction would have had the potential to undermine the defence position as put to the jury. It certainly did not require to be given as a matter of fairness.
“The appeal is accordingly refused.”