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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Ferguson v. Her Majesty's Advocate [2008] ScotHC HCJAC_71 (25 November 2008)
URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_71.html
Cite as: [2008] HCJAC 71, 2008 GWD 40-595, 2009 SCCR 78, [2008] ScotHC HCJAC_71, 2009 SCL 250, 2009 SLT 67

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Osborne

Lady Paton

Lord Mackay of Drumadoon

 

 

 

 

 

[2008]HCJAC 71

Appeal No: XC3/06

 

OPINION OF THE COURT

 

delivered by LORD OSBORNE

 

in

 

APPEAL

 

by

 

DEREK CHARLES FERGUSON

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

 

Act: Shead, C A Smith; Capital Defence Lawyers, Edinburgh

Alt: Prentice, Q.C., A.D.; Crown Agent

 

25 November 2008

The background circumstances


[1] On
24 November 2005, at the High Court in Edinburgh, the appellant was convicted by a majority verdict of the jury of charge (1) on the indictment which he faced. That charge was in the following terms:

"(1) on 1 April 2005 at the playground area of Chapelside Primary School, Chapel Street, Airdrie you JAMES McCORMICK, GARY CHARLES BLACK and DEREK CHARLES FERGUSON did assault Steven Pettigrew, now deceased, and did repeatedly punch him on the head and body, push him to the ground and there repeatedly punch and kick him on the head and body all to his injury, thereafter you DEREK CHARLES FERGUSON did seize his clothing and strike him on the body with a knife and you DEREK CHARLES FERGUSON did murder him."


[2]
On 15 December 2005, the trial judge sentenced the appellant to life imprisonment with a punishment part of 18 years. On 20 March 2006, a Note of Appeal against conviction and sentence was lodged on behalf of the appellant. On 2 May 2006 leave to appeal against both conviction and sentence was granted. The Note of Appeal contains a single ground of appeal against conviction, which is in the following terms:

"1. The trial judge erred in failing to direct the jury that it was open to them to return a verdict of guilty to the crime of culpable homicide. In his address to the jury, senior counsel acting for the appellant advised the jury that on the basis of the quality of the evidence available they could not be satisfied beyond reasonable doubt that this was a deliberate stabbing intending to kill the deceased. In his charge to the jury (pages 34-35) the trial judge gave directions on the verdicts open to the jury to return. The trial judge did not direct the jury that it was open to them to return a verdict of guilty to the lesser charge of culpable homicide, if they concluded that the evidence had failed to establish that the appellant had displayed the necessary evil intent required for a conviction of murder. The trial judge was obliged to direct the jury on the circumstances of this case, including the fact that only one stab wound was inflicted and the depth of said stab wound. The trial judge was obliged to explain culpable homicide and give a direction on this point. The trial judge erred in not directing the jury on the issue outlined above.

2. In the whole circumstances there has been a miscarriage of justice."


[3] The circumstances of the offence, as described by the trial judge in his report to this court, were these. On the evening of
1 April 2005, a group of young men, most of whom were aged between 16 and 18, gathered at a children's Wendy house in the playground of Chapelside Primary School, Airdrie. They had purchased carry-outs comprising Buckfast wine and cans of lager which they drank in the Wendy house while listening to music on a "ghetto blaster". They were joined by two girls. The atmosphere was happy and they talked and jumped about to the music. The young men consumed a considerable quantity of alcohol and some of them also shared joints of cannabis.


[4]
Thereafter, at some time between 9.30 p.m. and 10.30 p.m. that evening, the appellant and his cousin, James McCormick, came to the Wendy house with another young man, David Muirhead, and joined the group already there. Several of the young men who gave evidence at the trial spoke of the atmosphere in the Wendy house changing on their arrival. It was clear that the appellant and his cousin, who were several years older than most of the other young men, had a reputation for violence and that the young men were scared of them. The appellant's other cousin, Gary Black, was present in the group in the Wendy house when the appellant, McCormick and Muirhead arrived.


[5]
Initially matters continued as before in the Wendy house with both the original group and the newcomers drinking their carry-outs, although the original group of men appeared to have been somewhat subdued. One witness, Steven Smith, said that the atmosphere was "all right", but that people were not enjoying themselves as much as before and were no longer jumping about.


[6]
A disagreement developed between James McCormick and Steven Pettigrew. McCormick accused Steven Pettigrew of associating with another young man, John Buchan, who had said offensive things about Gary Black. McCormick also accused Steven Pettigrew of not reporting those incidents to Gary Black. Steven Pettigrew denied it. Without warning, McCormick, who was standing up, kicked Steven Pettigrew, who was sitting in the Wendy house, in the face. The appellant then punched Steven Pettigrew once. Gary Black initially intervened to protect Steven Pettigrew and stood between him and his attackers.


[7]
Steven Pettigrew left the Wendy house followed by Gary Black, who continued to shield him from McCormick. McCormick then goaded Black for allowing himself to be "bad mouthed" by the other man and for protecting Steven Pettigrew. It appeared that Black responded to this goading by punching Steven Pettigrew in the face and by kicking his legs so that he fell over. Then McCormick repeatedly punched and kicked him. Steven Pettigrew did not provoke the attack, nor did he behave in an aggressive manner throughout the attack on him.


[8]
When the fight appeared to be over and Steven Pettigrew was getting up from the ground, the appellant walked or jogged up to Steven Pettigrew from behind and thrust a silver knife into his back just below the right hand shoulder blade. The knife penetrated Steven Pettigrew's body for approximately seven inches, puncturing his right lung and coming almost to the front of his chest. Steven Pettigrew cried out and ran away.


[9]
The appellant then returned to the Wendy house, shaking his sleeve in which he again concealed the knife. The appellant joked asking the very frightened young men who remained in the Wendy house if they had seen that and suggesting that "Stiv", a young man, Steven Smith, who was a friend of Steven Pettigrew and who had not left the Wendy house, had stabbed Steven Pettigrew. After about ten minutes, the people in the Wendy house dispersed. At some time the appellant, or one of his friends, wiped the blade of the knife and threw it onto the roof of the Primary School, where the police found it on 6 April 2005.


[10]
Steven Smith went to look for Steven Pettigrew at his home, but Steven Pettigrew had not made it back there. Then he and Steven Pettigrew's step-father went out to search for him. They found him seriously injured in the park beside the Primary School and carried him home. He was taken to hospital and operated upon, but despite the best efforts of the surgeons, he suffered a hypoxic brain injury, caused by loss of blood, which in turn was caused by the stab wound to his back. Ultimately he was diagnosed as having no brain stem activity; life support equipment was switched off on 6 April 2006 and then he was pronounced to be dead.


[11]
In elaboration of the circumstances of the offence, the trial judge has summarised for us the evidence upon which the Crown principally relied, which came from four eye-witnesses. First, Steven Smith spoke of the appellant walking up to Steven Pettigrew and stabbing him in the back of the ribs with a silver knife, which was between nine and ten inches long. He identified the knife. Steven Pettigrew screamed when he was stabbed and ran away. The appellant then returned to the Wendy house where the youths were sitting and said that they had all seen that he had been stabbed. None of the youths responded. Steven Smith described himself as being in a state of shock. On cross-examination he denied the suggestion that the appellant had struggled with Steven Pettigrew and that they had fallen to the ground together.


[12]
Christopher Campbell had not seen the appellant carrying a knife but saw him walk up to Steven Pettigrew and make an upward thrusting movement with his arm from his waist. This witness said that he knew that he had seen a stabbing. The appellant came back to the Wendy house and asked the youths there whether they had seen it, suggesting that it was Steven Smith who had done it. He also denied that there had been a struggle between the appellant and Steven Pettigrew and that the wound had been an accident in the course of the struggle. He said that it was not an accidental wound. The defence, on cross-examination, did not put to Mr. Campbell the account which the appellant eventually gave of an accidental wounding during a struggle when the appellant had the knife in his duffle coat pocket.


[13]
John Leinster spoke of seeing the appellant walking or jogging up to Steven Pettigrew as he was getting up after the assault and saw the appellant punch him in the middle of the right side of his back, whereupon Steven Pettigrew let out a cry. He then saw the appellant shaking the sleeve of his coat as if he were hiding something. He thought that the appellant had a knife and that he had stabbed Steven Pettigrew. He did not see a struggle between the appellant and Steven Pettigrew and said that the blow which the appellant struck was a deliberate blow. On cross-examination he denied the suggestion that the appellant and Steven Pettigrew had fallen to the ground together.


[14]
David Guy said he did not see the stabbing. He saw the appellant walk up to Steven Pettigrew but did not see him in contact with him. He looked up when Steven Pettigrew cried out and saw the appellant standing where Steven Pettigrew had been. The appellant said: "Didn't Stiv (Steven Smith) just stab him?" He initially denied having seen a knife, but when he was shown a drawing of a straight knife blade that he had prepared for the police and signed he accepted that he had got a glimpse of a knife at the hut and also accepted that, at the time, he thought Steven Pettigrew had been stabbed. The defence did not put their case of an accidental injury in the course of a struggle to him in cross-examination.


[15]
In addition, although the Crown did not rely on his evidence, James McCormick, who was initially a co-accused, gave evidence that he did not see a knife, but that he saw the appellant bump into Steven Pettigrew and saw him move his arm back with a clenched fist. He said it was like a punch, but denied that he saw a knife in the appellant's hand. He was not cross-examined.


[16]
The trial judge has summarised for us the evidence given by the appellant himself. His evidence was that he had been carrying the knife in his sleeve. When he decided to punch Steven Pettigrew, he put the knife in the pocket of his duffle coat. He spoke of knocking Steven Pettigrew to the ground, getting him in a head lock and sweeping his legs from under him. He thought that he had accidentally cut Steven Pettigrew when he fell to the ground. There was no evidence to support this account of how the wound was inflicted.


[17]
Doctor Tobias Hatter testified that the wound was consistent with a stabbing motion from the waist of the attacker into the victim's back. He did not think that it was likely that the wound was inflicted in a struggle and said that it was difficult to see the wound as being the result of an accident. On cross-examination he assented to the proposition that there was an almost infinite number of possibilities where two people were involved in a violent incident with a knife. However, he did not depart from his expressed view that it was difficult to explain the wound unless someone deliberately stuck the knife into the victim's back.


[18]
Having regard to the nature of the ground of appeal against conviction founded upon, it is pertinent to notice the contentions that were put before the jury. The Crown sought a conviction for murder on the basis of the eye-witness evidence of a deliberate stabbing. The Advocate depute did not adopt a fallback position of seeking a conviction for culpable homicide. Senior counsel for the appellant at the trial addressed the jury at some length. It may be that the clearest statement of his position is to be found at pages 24 and 25 of the transcript of his speech. There he said:

"One possibility is of course the Crown situation that the assault with the knife was intentional. What you call it after that is a matter entirely for yourself but you certainly could call it murder. The Crown position is that this young man takes a knife and intentionally stabs, intentionally sticks it into the back of the other young man. That is the Crown's position and they say he having done that intentionally, he is guilty of murder, whether or not he intended to kill but the starting point in the murder has to be, don't misunderstand this, the intention of sticking the knife into the other man's body. His Lordship will explain that I am sure.

The other possibility, the other possibility which we have to look at in this case, is that that didn't happen and in some other way, call it accident, call it in the course of a different kind of assault, call it what you want but in that some other way while they fell to the ground, while they were actually rolling about, whether he was taking the legs away from the other man, the knife which he undoubtedly had and should not have had in his possession entered the other young man's body and so through a process caused his death. So for it to be murder, he has to intentionally strike with a knife. That is the Crown case. The other possibility is the other scenario."

 

Submissions for the appellant


[19]
Counsel for the appellant submitted that there had been a miscarriage of justice in this case, since the trial judge had decided not to give a direction to the jury on the possibility of a verdict of culpable homicide, which, in the particular circumstances of this case, ought to have been given. If the jury had been satisfied that there had been a deliberate stabbing, as opposed to the accidental injury spoken to by the appellant, culpable homicide was an option reasonably open to them. In this case, the issue of whether the crime was one of murder or culpable homicide was, on the evidence, a classic issue for a jury. It was acknowledged that, in some cases of violence, for example the shooting of a victim through the head, or the cutting of a victim's throat, no verdict other than murder could reasonably be returned. However, such cases were rare. In the present case, assuming that a deliberate stabbing had been established by the Crown, the characterisation of that offence as murder, or culpable homicide, was a matter for the jury.


[20]
Counsel drew attention to the reasons given by the trial judge at page 2 of his report for deciding not to give a direction to the jury on culpable homicide. There he said:

"I deliberately did not do so (a) as the issue was not raised expressly or by implication by either the Crown or the defence and (b) to do so might have been unfavourable to the appellant. Were I to have done so, my charge would have been open to criticism on that basis: viz Whiteside v H.M. Advocate 1996 S.L.T. 299 and Templeton v H.M. Advocate 1961 J.C. 62, Lord Guthrie at page 69."


[21]
Counsel went on to draw attention to Templeton v H.M. Advocate, referred to by the trial judge. He also relied upon Steele v H.M. Advocate 1992 S.C.C.R. 30 and, in particular, the observations of Lord Justice General Hope at pages 32 to 33. That case had involved the possibility of a conviction for theft or reset. He stated there that, if a direction in law was necessary in fairness to the accused, the presiding judge ought to give it, even although the defence has not raised the matter. Counsel submitted that the position of defence counsel in any trial was not determinative of whether a particular direction should or should not be given, yet the trial judge in this case had given that as the first reason for his not directing the jury on culpable homicide. In any event, it might be thought, on the basis of the content of senior counsel's speech to the jury, that the issue of culpable homicide had been raised by him, at least by implication at page 24, lines 10 to 14 of the transcript of the speech. Thus it was submitted that culpable homicide was a live issue at the trial. It was the duty of a trial judge to determine what the live issues at the trial were, regardless of the position adopted by counsel. In support of that proposition, counsel relied upon Brown v H.M. Advocate 1993 S.C.C.R. 382 and particularly the observations of Lord Justice General Hope at page 391. While that case had been partly disapproved in McKinnon v H.M. Advocate 2003 S.C.C.R. 224, the disapproval did not extend to the dictum relied upon.


[22]
It was instructive, submitted counsel for the appellant, to examine the approach to these matters in England. In that connection he drew our attention to Regina v Coutts [2006] 1 W.L.R. 2154, a decision of the House of Lords. In that case it was held, allowing an appeal and quashing the conviction, that in a trial on indictment any obvious and viable alternative verdict should ordinarily be left to the jury, if there were evidence to support it, irrespective of the parties' wishes; and that, in the circumstances of the case, the judge should have left the verdict of manslaughter to the jury and his failure to do so had been a material irregularity. Counsel quoted extensively from the judgments in this case.


[23]
Next he drew our attention to Mackay v H.M. Advocate 2008 S.C.C.R. 371. He did not suggest that the decision in that case was necessarily wrong, upon the assumption that there was indeed no room for a verdict of culpable homicide, but counsel submitted that the observations of the court in paragraph 16 were in error and inconsistent with the cases of Steele v H.M. Advocate and Regina v Coutts, neither of which had been cited to the court. Counsel also drew our attention to Touati v H.M. Advocate 2008 S.C.C.R. 211. Turning to the issue of significance of what was contended to have been a misdirection in the present case, counsel relied upon Docherty v H.M. Advocate 1945 J.C. 89, particularly the observations of Lord Russell at page 102. The question always had to be whether an omission to give a direction was sufficiently material to vitiate the verdict. Counsel apprehended that the Advocate depute might rely upon H.M. Advocate v Marshall 1897 S.L.T. 217. However, that case concerned a killing where what was figured was a stab into the heart of an individual who died upon the spot. It might be reasonable to suppose that culpable homicide would not be available in such a case. Seils v H.M. Advocate 1997 S.C.C.R. 518 was a case in which there was a conviction for culpable homicide following upon the infliction of a penetrating wound to the left side of the stomach, which proved to be fatal. It demonstrated that a verdict of culpable homicide might reasonably be available even following the infliction of very serious injuries. In Drury v H.M. Advocate 2001 S.C.C.R. 583, a decision of five judges, in paragraph [18], the Lord Justice General (Rodger) emphasised the importance of the assessment by a jury of criminal intent in the light of all of the relevant evidence. One of the features of the present case was that the Advocate depute at the trial had characterised the evidence as showing that "moderate force" had been used to inflict the stab wound. That factor constituted a basis upon which the jury should have been allowed to consider the issue of culpable homicide. In all the circumstances the appeal ought to be allowed.

 

The submissions of the Crown

[24]
The Advocate depute submitted that, in the circumstances of the present case, the verdict of culpable homicide was not one which was reasonably available on the evidence. He contended that the assault was of so grave a nature that the offence committed, if the defence of accident were to be rejected, was inevitably one of murder. He made clear that he did not contend that the observations of the court in Mackay v H.M. Advocate at paragraph [16] were correct. The Crown's position in this case was that the stab inflicted here demonstrated unequivocally an intent to kill; failing that, it showed inevitably that the appellant had acted with wicked recklessness.


[25]
The Advocate depute drew attention to the factors in the circumstances of the case which he contended supported his submission. First, it had been shown that the appellant had been carrying a knife. Secondly, the evidence showed that the injury inflicted was grave and that the weapon used was of a deadly nature. Thirdly, he pointed out that the appellant's conduct after the event did not show surprise or remorse. That cast light on his criminal intent. Fourthly, the details and size of the knife were revealed, since the weapon had been found by the police following the incident. The wound inflicted was seven inches deep and the blade of the knife was ten inches long. Fifthly, the eyewitness evidence in the case demonstrated a deliberate stabbing by the appellant. The appellant had not attempted in any way to justify his actions in evidence. The sole defence was that the injury had been inflicted accidentally, which had been rejected. In all these circumstances there was no room for a verdict of culpable homicide.


[26]
Parr v H.M. Advocate 1991 S.C.C.R. 180 was an example of a case where culpable homicide was not a verdict open to a jury. That case involved loss of control by the appellant followed by the infliction of repeated blows with a hammer to the head. A similar case was Broadley v H.M. Advocate 1991 S.C.C.R. 416, which had involved repeated stabbing with a knife.


[27]
It was the duty of any trial judge to react appropriately to the evidence led. If culpable homicide was to be left to a jury, that had to be a viable option on the evidence. That was not the case here. In any event, the speech of senior counsel for the appellant at the trial did not impliedly recognise the possibility of a verdict of culpable homicide. Had he specifically raised the issue of culpable homicide, the trial judge would have had a duty to withdraw that option in the circumstances of this case.


[28]
Upon the assumption that the court did not agree with the Crown's submissions, it was recognised that there would have been a misdirection of a material nature, which would inevitably result in a miscarriage of justice. In those circumstances, the verdict would require to be quashed. In that situation, the Crown would seek the right to re-indict the appellant. That matter could appropriately be discussed following upon the issue of the Opinion of the Court.


[29]
Counsel for the appellant stated that, in his view also, it would be premature to consider what course of action should follow a decision favourable to the appellant, whether that should involve the substitution of a verdict of culpable homicide for that of murder, or whether the court should allow a re-trial. In that connection he referred again to Touati v H.M. Advocate 2008 S.C.C.R. 211 at paragraph 35.

The decision

[30]
It is necessary, in the circumstances of this case, to consider the scope of a trial judge's duty, in charging a jury, to explain to the jury possible alternative verdicts. This matter was the subject of consideration in Steele v H.M. Advocate. At pages 32-33, Lord Justice General Hope said this:

"It was submitted by the learned Advocate depute that it was a matter for the discretion of the sheriff as to whether or not a direction about the alternative verdict of reset should be given. Reference was made to Kilna v H.M. Advocate in which Lord Justice General Clyde said at page 25:

'Even if asked to give such a direction by the prosecutor or the defence, [the trial judge] is not bound to do so. It is essentially a matter within his discretion'

But that proposition leaves too much to the discretion of the trial judge and the better view, which finds support in Templeton v H.M. Advocate, to which the Advocate depute also referred, is that if a direction in law is necessary in fairness to the accused the judge ought to give it even although the defence has not raised the matter: see Lord Guthrie at page 69. We were informed that counsel for Forbes did raise the question of reset in the course of his address to the jury and that in the course of her address on behalf of Drummond Miss Powrie submitted that the evidence was insufficient for her client to be found guilty of either theft or reset. The sheriff was not asked to give a direction about reset, but the issue was raised and the nature of the evidence in this case was such that it could not properly be said that it was not a live issue for the jury to consider. In these circumstances it was necessary, in fairness to the appellants, for the jury to be told of the alternative verdicts which were open to them on the evidence and we do not accept that a jury, if properly directed on these matters, would be likely to have become confused."

The test ultimately adopted by the court in that case was whether the alternative verdict involved could arise out of what had been a live issue in the case. If that were the case then, in fairness to the accused, the appropriate direction ought to have been given. That approach to the matter was reflected in what was said, in particular, in relation to the alternative verdict of culpable homicide in connection with a charge for murder, in the case of Brown v H.M. Advocate, again by Lord Justice General Hope, at page 391. He said:

"The alternative verdict of culpable homicide is one which should be withdrawn from the jury only with great caution, because the onus is on the Crown to prove its case and all questions as to the weight or quality of the evidence are for the jury and not for the trial judge. The correct approach to the questions raised by the direction as to what constitutes murder should normally be to leave it to the jury to decide whether the necessary degree of wicked recklessness has been established by the Crown. Nevertheless, there may be cases where the number or nature of the blows struck or the weapons used are of such a character that there is no room for a verdict of culpable homicide, in the absence of any other basis for that verdict in the evidence. Parr v H.M. Advocate is one recent example where death resulted from about eight blows to the head struck with a hammer or similar instrument resulting in extensive comminuted and depressed fractures to the skull and there was no evidence on the ground of provocation to justify reducing the verdict from murder to culpable homicide. Broadley v H.M. Advocate  is another, where death resulted from five stab wounds to the head and body suggesting an attack pressed home with great determination, and there was no question of accident, provocation or diminished responsibility. The Lord Justice Clerk pointed out at page 423 in that case that every case depends on its own facts, and for this reason no precise guidance can be given as to when a direction to this effect will be appropriate. The best that can be said is that the question is ultimately one of fact, and that the trial judge should not take this course unless he is satisfied that there is no basis at all for the verdict in the evidence."

While certain dicta in Brown v H.M. Advocate were disapproved in the five judge decision in McKinnon v H.M. Advocate, there was no disapproval of the passage to which we have just referred. In our opinion, it reflects the proper approach to the matter under consideration. In that passage Lord Justice General Hope cited Parr v H.M. Advocate and Broadley v H.M. Advocate as examples of cases in which a jury could not reasonably have convicted of culpable homicide and in which, accordingly, it was appropriate for the trial judge to withdraw that verdict from the jury. It would be possible to add to those examples a case where a victim had been shot through the head, or where a stab wound or wounds had been directed to the heart, or where the offender had used a knife to cut vital blood vessels in the neck of the victim.


[31]
In the course of the debate before us, counsel for the appellant quoted extensively from the judgments of the House of Lords in Regina v Coutts. The decision in that case is, of course, in no sense binding upon us, but, in the absence of any technical feature of English criminal law upon which the decision depended, it must be seen as of strong persuasive authority, particularly because Lord Rodger of Earlsferry delivered an opinion. As we understand the opinions delivered, while their Lordships made observations on a range of matters with which we do not have to be concerned, we find their approach to alternative verdicts to be generally in accordance with that set forth in the cases of Steele v H.M. Advocate and Brown v H.M. Advocate and one which we can and should adopt. In these circumstances, we think that it is instructive to quote some of the observations in that case, which show the reasoning underlying the decision. In paragraph 12, Lord Bingham of Cornhill observed:

"In any criminal prosecution for a serious offence there is an important public interest in the outcome: R v Fairbanks [1986] 1 W.L.R. 1202, 1206. The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge: Von Starck v The Queen [2000] 1 W.L.R. 1270, 1275; Hunter v The Queen [2003] UKPC 69, para 27."

With these sentiments and, in particular, with the emphasis on the part played by the public interest, or, as it might be described, the interests of justice in criminal prosecution, we find it impossible to disagree. In that connection, what his Lordship said in paragraph 23, is apt:

"The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. ... I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency."


[32]
In paragraph 24 of his judgment Lord Bingham deals with the possibility of unfairness in the trial if notice is not given at an appropriate time of the trial judge's intention to give directions in relation to an alternative verdict. There he says:

"It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. ... There may be unfairness if the jury first learn of the alternative from the judge's summing up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. ..."


[33]
It is also instructive to notice the observations of Lord Rodger of Earlsferry in the same case. In paragraph 81 he said:

"As these authorities make clear, the duty of the trial judge to direct the jury on manslaughter arises if the jury might reasonably return such a verdict on the whole of the evidence, whether led by the Crown or by the defence. ... the duty applies even though the result may be that the jury convict the defendant of manslaughter on a basis which is different from, and inconsistent with, the case put forward by the prosecution. That is a necessary implication of the judge's duty to direct on manslaughter when it arises on all the evidence, even if the prosecution case is that the jury should accept particular elements of the evidence, on the basis of which they should find the defendant guilty of nothing less than murder. The stance of prosecuting counsel cannot be determinative of the range of verdicts fairly open to the jury on the evidence."

In paragraph 82 he continued:

"Directing the jury on the way that the law applies to any reasonable view of the facts disclosed by the evidence ensures that they have a proper understanding of the way that the law is intended to work, depending on the view of the facts which they take. Therefore, by omitting to mention manslaughter in a case where it could apply on a reasonable view of the facts, the judge will misrepresent the position by making the law seem more rigid and less nuanced than it actually is. While, for tactical reasons, it may suit counsel on either or both sides to represent the law in this way, as offering a stark alternative between murder and acquittal, with nothing in between, in fact the law provides for an intermediate position. The jury are entitled to be told of that intermediate position, whenever it might come into play on a reasonable view of the evidence. The intermediate position may not be to the liking of either the prosecution or the defence, but the jury are still entitled to be told of it, so that they may reach their conclusions, 'in light of a complete understanding of the law applicable to them'; Von Starck v The Queen [2000] 1 W.L.R. 1270, 1275. Where the duty of the judge is to give a direction on the alternative verdict, counsel have to adjust their speeches to the jury to take account of that prospective direction."


[34]
In Mackay v H.M. Advocate the appellant was charged with assaulting the deceased by, inter alia, punching him and stamping on his head and murdering him by placing a pillow over his head, compressing his breathing and struggling with him. The medical evidence was that death had been caused by smothering and that the force required to achieve that result must have been considerable. The trial judge gave the jury the standard directions on mens rea of murder, but did not leave to them the possibility of alternative verdicts of assault and culpable homicide. The appellant was convicted of murder and appealed to the High Court on, inter alia, the ground of misdirection, submitting that the judge should have left it open to the jury to convict of culpable homicide if there was insufficient murderous intent. The court held that the obligation on a trial judge to charge the jury is fenced by the way the case is presented to the jury by both or all of the parties, and that it is not for the judge to speculate upon or embark upon areas of possible verdicts which have not been canvassed in evidence or been the subject of submissions to the jury, and that the trial judge was correct not to venture into the field of culpable homicide at all; and that there was no evidence whatever to suggest that the crime was less than murder. Accordingly the appeal on this ground was refused. The view taken by the court, it seems, was that, in the particular circumstances of the case, a verdict of culpable homicide was not reasonably open to the jury on the evidence. In that situation, we have no reason to differ from the decision made by the court.


[35]
However, having regard to the view which we have formed of the law, derived from the cases which we have discussed, we find it necessary to disapprove of the observations in paragraph 16 of the Opinion of the Court, delivered by Lord Johnston. In that paragraph, he said:

"As far as the general basis is concerned it is the opinion of this court that the obligation on the trial judge to charge the jury is fenced by the way the case is presented to the jury by both or all parties. It is not for the trial judge to speculate upon or embark upon areas of possible verdict which have not been canvassed in the evidence or formed part of a submission to the jury (see the dissenting opinion of Lord Sutherland in Hobbins v H.M. Advocate and Johnston v H.M. Advocate, following McPhelim v H.M. Advocate). In these circumstances we consider the trial judge was quite correct not to venture into the field of culpable homicide at all given the way the case was presented by all parties and given particularly that this was a case of concert, as charged, in what was undoubtedly upon the medical evidence a murderous attack."

In our opinion, the particular observations in this paragraph, to the effect that the obligation on the trial judge to charge the jury is "fenced by the way that the case is presented to the jury by both or all parties", are wrong. While, of course, it is not for the trial judge to place before the jury the option of a verdict which would not be justified upon a reasonable view of the evidence before them, it was erroneous to suggest that the way in which the case was presented by parties was in some undefined way necessarily determinative of the options available to the jury. In this connection we note that the cases of Steele v H.M. Advocate, Brown v H.M. Advocate and Regina v Coutts were not cited to the court in Mackay v H.M. Advocate.


[36]
Against this background, in our opinion, the simple precaution outlined by Lord Bingham of Cornhill in paragraph 24 of his judgment in Regina v Coutts is one which can and should be taken under Scottish criminal procedure, in order to avoid possible unfairness to any party, where a trial judge has formed the view that it is appropriate to give directions to the jury regarding an alternative verdict or verdicts, in the light of the evidence Thus, a trial judge should consider, prior to counsel addressing the jury, whether there is an obvious alternative verdict reasonably available on the evidence. If it is concluded that there is, the trial judge should communicate that view in court, but outwith the presence of jurors, to counsel, before they address the jury, indicating that it is proposed to give a direction upon such an alternative verdict or verdicts. In this way, any possible unfairness may be avoided.


[37]
Turning now to the implications for this case of what we have said as regards the responsibility of a trial judge, we note that the death of the deceased was brought about, not in consequence of the infliction of multiple injuries in what might normally be expected to be particularly vulnerable areas of the body, but by a single stab wound delivered to his back just below the right shoulder blade. We note that there was no suggestion in the evidence in this case of an actual intent to kill. Furthermore, the attack by the appellant appears to have been the result of a decision taken on the spur of the moment. While, on the view taken by the jury, the stabbing was undoubtedly a deliberate attack, in itself we do not consider that it necessarily gives rise to the inference of murderous intent and nothing else. The matter might be tested by asking the question of whether, on the facts of this case, any judge would be justified in withdrawing culpable homicide from the jury's consideration. In our opinion, the answer to that question must be in the negative. Thus then we consider that a direction should have been given on that alternative verdict.


[38]
We do not think that it is possible to equiparate the facts of this case with those of the cases of Parr v H.M. Advocate and Broadley v H.M. Advocate, to which we have referred. In all these circumstances, in our opinion, the inevitable conclusion is that a verdict of culpable homicide would have been reasonably open to the jury in the present case. However, they were not given the opportunity by the trial judge to consider such a verdict. In that situation, we conclude that the omission of the trial judge to give a direction in relation to culpable homicide was a material misdirection resulting in a miscarriage of justice, a consequence which the Crown expressly conceded would follow from such a misdirection.


[39]
In his report to this court, the trial judge in explaining the decision which he made said this:

"I deliberately did not do so [direct the jury that it was open to them to return a verdict of guilty of the crime of culpable homicide] (a) as the issue was not raised expressly or by implication by either the Crown or the defence and (b) to do so might have been unfavourable to the appellant."

As regards the first of these reasons, in our view, it was immaterial that the issue of culpable homicide was not expressly raised by either the Crown or the defence, for reasons which we have explained. In any event, it could be inferred from what was said by senior counsel for the appellant at the trial in his speech to the jury at page 24 of the transcript, that he intended to imply to the jury that such a verdict might be open to them. However, whether we are right or wrong about that is of no account. As regards the second reason given by the trial judge, it appears to us plain that, from time to time, it may be necessary for a judge in his charge to the jury to give directions which may be considered unfavourable to the appellant, provided that they are given fairly, and in conformity with the law and the interests of justice. His duty, of course, is to ensure that the accused person has a fair trial, but, inevitably, certain directions which it is the duty of a trial judge to give may well be unfavourable to the appellant. We should add that in Whiteside v H.M. Advocate 1996 S.L.T. 299, referred to by the trial judge in his Report, the case explored in evidence by the Crown was one of premeditated murder. In these circumstances, the question of culpable homicide was not seen by the court as a live issue in the trial. Accordingly, no directions on that matter were thought to be necessary.


[40]
In all these circumstances we have reached the conclusion that the verdict in this case against the appellant cannot stand. Since we have not heard submissions from either the Advocate depute or counsel for the appellant as to the course of action which ought to be taken in the light of our opinion, we shall adjourn this appeal to a hearing to be fixed upon that matter. At that hearing, it will be open to the Crown, if so advised, to move the court to authorise a fresh prosecution, or for either party, if so advised, to move the court to substitute a verdict of culpable homicide for the verdict reached by the jury, in accordance with Section 118(1)(b) of the Criminal Procedure (Scotland) Act 1995.

 


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