Self defence not available to threatening behaviour charge: appeal court

A claim of self defence has no relevance to a charge of threatening or abusive behaviour under s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, the Criminal Appeal Court has ruled.

Lady Smith, Lord Bracadale and Lady Clark of Calton so held in refusing an appeal against conviction by Robert Urquhart, who was found guilty after trial at Perth Sheriff Court of assaulting one police officer by striking him on the leg to his injury, and behaving in a threatening manner towards two other officers by shouting, swearing and brandishing a sword at them.

The officers had attended at the accused's home to enforce a warrant, and attempted to cut a hole in the door. The accused was behind the door and thrust a four foot sword through the hole, striking one officer. Two others entered by the back door, shouting "Police". The accused brandished the sword at them, shouted and swore. This was the subject of the statutory charge. A woman eventually persuaded the accused to lower his sword.

The sheriff directed the jury that they could only consider self defence in relation to the first charge. On appeal it was argued that depending on the facts, self defence might be relevant to any of the three elements of the offence, in particular to the state of mind in the third element. The Crown, having conceded the point in written submissions, then argued against it.

Lady Smith, delivering the opinion of the court, pointed to the three distinct elements of the offence: (1) behaving in a threatening or abusive manner; (2) which would cause a reasonable person to suffer fear or alarm; and (3) intending to cause fear and alarm or being reckless as to whether it did so. Self defence, she said, could not be relevant to numbers (1) and (2); as for number (3), while there might be "some initial attraction" in thinking it could be relevant to state of mind, "we conclude that that cannot be right". 

There were two reasons for that. First, if one was acting in self defence and acting as described at numbers (1) and (2), one would necessarily be intending to cause fear and alarm, and "however cogent the defence of self defence might be", number (3) would be satisfied. Secondly, "the statutory defence afforded by s 38(2) is plainly wide enough to cover all and anything that an accused person may wish to advance to the effect that he was in fact acting in self defence" – and might apply even where, for example, there was a reasonable alternative means of escape. There was therefore no misdirection on this point.

The court further held that the s 38(2) defence – that the accused behaved reasonably in all the circumstances – imposed only an evidential and not a legal burden on the accused seeking to raise it, and the sheriff erred in directing the jury that they had to be satisfied of the defence on balance of probabilities. However there was no miscarriage of justice, as "we consider that if the police evidence was accepted – as it must have been – looking at matters objectively, the accused’s behaviour could not, on any view, be characterised as having been reasonable". The appeal was accordingly refused.

Click here to view the opinion.