APPEAL COURT, HIGH COURT OF JUSTICIARY

Act: J. Keenan, Solicitor Advocate; Franchi Finnieston, Glasgow

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

29 June 2006

[1] The appellant is Barry James Murphy. On 8 September 2005 in the High Court at Paisley he was convicted, together with a co-accused, of a serious knife assault to severe injury, permanent disfigurement, permanent impairment and to the danger of life.

[2] The case was continued for the purpose of obtaining social enquiry reports. For various reasons it took some time before the case could be disposed of. On 14 December 2005 the appellant was sentenced to 6 years detention in a Young Offenders Institution. The appellant was aged 17 at the time of the offence. His co-accused, who was 14 at the time of the offence, was sentenced to 3 years detention.

[3] In his report to this Court the trial judge narrates the circumstances of the assault, the evidence relied on by the Crown which the jury must have accepted and the serious injuries that the complainer suffered. He does so in the following terms:-

"On 26 September 2004, the complainer, William Gove, had been visiting a friend in the Govan area of Glasgow. He was making his way home on foot in Elderpark Street. At about 11.30pm he was approached by the two accused. One of them said to him 'any money big man?'. The complainer replied 'only £2.00 for myself' and walked on. He heard one of the boys shout 'fucking gees it'. He turned and saw the two boys behind him. He felt what he thought was a punch to his back below the right shoulder blade. He was then stabbed again by Murphy. He fell to the ground. This second wound was on the left side towards the back. Murphy then gave the knife to his co-accused and told him to stab the complainer. The co-accused then stabbed him in the leg.

The complainer was very badly injured. A number of witnesses, including two policemen, who saw him on the ground thought he was dead. The complainer was nevertheless able to identify both accused and to confirm that both had been present throughout, both had left together and each had the weapon at some point. The complainer admitted that he had been intoxicated. He was taken to hospital where he required intensive care.

A number of young people who were friends of the two accused spoke to seeing the injured complainer on the ground. They also spoke to seeing the two accused who were together and had a knife with blood on the blade. It was a kitchen knife. They each made remarks to their friends indicating that they had been responsible for the stabbing.

The consultant surgeon who attended to the complainer spoke of seeing three stab wounds, two to the back close to each other and one to the thigh. He required to remove part of the complainer's lung. The knife which inflicted these injuries would have been sharp and at least of a blade of more than six inches. A fair degree of force would have been required. The injuries were life-threatening. His life was in danger. He would have died if the operation had not been performed. He was certainly close to death. He would suffer shortness of breath and scarring."

[4] Like his co-accused the appellant did not give evidence. He relied on what he had said of an exculpatory nature in a police interview, a mixed statement which had been put in evidence by the Crown. In relation to what the appellant said in that interview the trial judge gave the following direction to the jury:-

"Evidence of such statements (statements by an accused person) is admissible in the case, whether favourable or unfavourable to an accused person who made them, whether spoken to by a police officer or by anybody else doesn't matter. However, where such a statement is favourable to the accused person, it is what we call exculpatory which indicates an absence of guilt. Where such a statement is exculpatory you should, as it were, regard it with a pinch of salt if it is not confirmed by the accused person giving evidence from the witness box, because when the statement is made the accused person is not on oath, he is not the subject of cross-examination by the Advocate Depute and therefore such a statement is different from giving evidence from the witness box and you should weigh it accordingly in deciding whether to give any credence to an exculpatory statement".

[5] The appellant appealed against his conviction on the ground that a miscarriage of justice had resulted from that direction and, in particular, the direction that "where such a statement is exculpatory you (the jury) should, as it were, regard it with a pinch of salt if it is not confirmed by the accused person giving evidence from the witness box".

[6] Mr Keenan, solicitor advocate for the appellant, submitted that that direction carried with it an overtone which indicated that the statement should be disbelieved. It was of particular importance because it related to the only piece of evidence on which the defence relied. What the trial judge had said was a misdirection and in the circumstances it was one that had led to a miscarriage of justice. The appeal should therefore be allowed and the conviction quashed.

[7] In reply the Advocate Depute submitted that the passage in question did not amount to a misdirection. In any event, there had been no miscarriage of justice. The use of the phrase "with a pinch of salt" had to be looked at in the context of the particular passage in the charge and in the context of the charge as a whole. When that was done it could not be said that the judge was in any way directing the jury to reject the statement. He was doing no more than directing the jury that they should look at the statement with care for the reasons he went on to explain and weigh it accordingly. The appeal against conviction should therefore be refused.

[8] In our opinion the use of the phrase "with a pinch of salt" was not felicitous and it has led to this appeal. A simple cautionary direction to bear in mind when considering the statement that it had not been given on oath and had not been subject to cross-examination would have been preferable. But judges are permitted a certain latitude in the way they phrase their charges. A charge is not a mere formulaic recitation. When looked at in the context of that part of the charge and in the context of the charge as a whole, we are not persuaded that what the judge said amounted to a misdirection. In any event, we are quite unable to say that in the circumstances it resulted in a miscarriage of justice.

[9] The appeal against conviction is therefore refused.

[10] With regard to the appeal against sentence, Mr Keenan accepted that the appellant had been convicted of a very serious offence and that a custodial sentence was inevitable. He reminded us that the appellant was only 17 at the time and was a first offender. In all the circumstances the sentence of 6 years detention was excessive in itself and was excessive when compared with the sentence of 3 years detention which had been imposed on the co-accused.

[11] It is true that the appellant was only 17 at the time and that he was a first offender. However, the crime of which he was convicted was indeed a very serious one. The appellant was in the street armed with a kitchen knife with a blade more than six inches long. The assault of which he was convicted consisted first of two stab wounds in the back inflicted by him. He then gave the knife to the co-accused and told him to stab the complainer, which he did in the thigh. It was a completely unprovoked attack and resulted in very serious injuries, which were nearly fatal and which have had a lasting effect.

[12] The judge took all these factors into account. In respect of what he described as the current knife culture in the west of Scotland and the very serious injuries to the complainer, he imposed a sentence on the appellant of 6 years detention.

[13] This was a severe sentence, but deliberately so. We are not persuaded that it was outside the range of sentences appropriate for such an offence. Nor are we persuaded that the distinction that the judge drew between the sentence he imposed on the appellant and the one he imposed on the co-accused was not justified in the circumstances.

[14] For these reasons we are not persuaded that the sentence imposed on the appellant was excessive. The appeal against sentence is therefore also refused.