High Court quashes ‘broken bottle’ assault and threatening behaviour charges on appeal
The Appeal Court of the High Court of Justiciary has quashed three convictions arising from an incident in Edinburgh in which a man was said to have assaulted a restaurant owner whilst brandishing a broken bottle.
Kenneth Thomson was convicted of three charges arising out of the incident, which took place on 13 September 2018 at Boyd’s Entry and St Mary’s Street. His solicitor had lodged a special defence of self-defence in respect of each of the charges.
The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Glennie and Lord Turnbull.
Produced something like a knife
The complainer in each of the three charges, Osman Celik, gave evidence that he was escorting an elderly lady, Agnes Gray, from the restaurant he owned to her home in Boyd’s Entry. On his way, he encountered the appellant, his girlfriend, and another male. All three were behaving aggressively towards another female.
Mr Celik told the group to leave the woman alone, at which point they all came towards him and started pushing him. He shoved them back, but then fell to the ground and was kicked and punched by the appellant and the other man. After Mr Celik returned to his feet, the appellant broke a glass bottle against a wall and held it in front of Mr Celik while swearing at him.
Mr Celik’s account was supported by an unconnected Crown witness, Donald Smith, who observed some of the incident. The three charges that arose from this incident were one of assaulting Mr Celik, one of possessing an offensive weapon, namely the broken bottle, and one of threatening and abusive behaviour in the presence of Mrs Gray.
The appellant’s version of events was that Mr Celik invited him to fight after the appellant had told him to walk away. Mr Celik punched him twice in the mouth, and then later attacked his girlfriend when he was looking elsewhere. His evidence was that he broke the bottle against the wall because Mr Celik had produced something from his pocket that looked like a knife.
Mr Celik accepted that the police had found a “waiter’s friend”, a combination bottle opener, corkscrew and knife at the scene which belonged to him. He stated it must have fallen out of his pocket during the attack.
In his charge, the sheriff explained that self-defence was not a competent defence to the second and third charges, which had defences of reasonable excuse and conduct reasonable in the circumstances, respectively. Fear of an attack could not provide a reasonable excuse for having an offensive weapon.
On appeal, it was submitted for the appellant that the sheriff was wrong to direct the jury that fear of an attack cannot provide a reasonable excuse. The direction deprived the appellant of his defence and amounted to an instruction to convict. It was also submitted that this misdirection was of such materiality as to poison the jury’s consideration of the other two charges.
The opinion of the court was delivered by Lord Turnbull. Considering Lunn v HM Advocate (2016), a case with similar facts which was relied on by the appellant in support of his submissions, he said: “The direction given in relation to reasonable excuse for possession of an offensive weapon in the present case was incorrect. A more nuanced explanation was necessary. The conviction on charge 2 cannot stand for this reason. The remaining question is whether the direction given did introduce a ‘fatal flaw into the jury’s assessment of the admitted use of the broken bottle’.”
Noting that the jury had deleted parts of the allegation that had referred to the appellant repeatedly punching and kicking Mr Celik and striking him with a bottle, he continued: “It is reasonable to infer that they must have done so by preferring the evidence of the appellant, or by being left in a reasonable doubt as to the Crown’s case of assault. This is the context in which the effect of the plain misdirection requires to be considered.”
Examining the nature of the trial judge’s directions, he said: “It would no doubt have been feasible to craft directions focussing on the admitted brandishing of the broken bottle in relation to each of the three charges in this case which were not only legally correct but also informative and of assistance to the jury. However, we recognise that the need to explain where the conditions necessary for self-defence applied and where they did not, along with the need to communicate the import of the differing onuses and standards of proof, would have made this a challenging task.”
He continued: “We agree with counsel for the appellant that in telling the jury that ‘the law is very firm that fear of an attack is not a reasonable excuse for having an offensive weapon’, the sheriff delivered what can properly be described as an absolute proposition. In these circumstances we agree that it was asking too much of the jury to appreciate that, despite what they had been told, an accused person could still be judged to have acted reasonably and appropriately by brandishing an offensive weapon in fear of an attack in the context of a charge of assault.”
Lord Turnbull concluded: “Bearing in mind the deletions from the charge of assault which were returned by the jury, it is difficult to understand the basis of the convictions returned on charges 1 and 3 without concluding that the misdirection in relation to charge 2 did in fact introduce a fatal flaw into the jury’s overall consideration of the appellant’s conduct.”
For these reasons, the appeal was allowed. The High Court quashed the convictions in relation to all three charges.
© Scottish Legal News Ltd 2021