Self-defence must be withdrawn where there is no evidential basis for “no reasonable means of escape” — [2026] HCJAC 13

1. Introduction

In [2026] HCJAC 13 the Appeal Court of the High Court of Justiciary (Lord Beckett, the Lord Justice Clerk, delivering the Opinion of the Court; Lord Matthews and Lord Clark concurring) refused an appeal against conviction for attempted murder arising from a violent stabbing of the appellant’s brother at the brother’s home.

The appeal was framed as a challenge to the adequacy of the trial judge’s jury directions on self-defence in a quarrel, on the basis that the jury could still have accepted self-defence even if the appellant “started the fight”. The court, however, identified a more fundamental point: on the evidence led, self-defence ought not to have been left to the jury at all because there was no evidential basis for one of its essential requirements—that violence was the last resort because there was no reasonable means of escape.

Parties and posture

• Appellant: the accused person convicted of attempted murder (identified at trial; referred to here as “the appellant”).
• Respondent: His Majesty’s Advocate.
• Procedural history: conviction on 27 May 2025; extended sentence imposed on 9 July 2025 (12 years, with a 10-year custodial term); appeal refused on 14 April 2026.

Key issues

1. Directions issue: Did the trial judge misdirect the jury by failing to explain that an initial aggressor may still invoke self-defence if the other party responds with disproportionate violence?
2. Threshold issue (decisive): Was there any evidential basis for self-defence—particularly the requirement that the appellant had no reasonable means of escape—such that the defence should have been left to the jury?
3. Appellate test issue: If there had been misdirection, what is the correct test for miscarriage of justice (and whether the “realistic possibility of a different verdict” test applies outside Convention-rights contexts)?

2. Summary of the Judgment

The Appeal Court refused the appeal. Its central holdings were:

• No evidential basis for self-defence: There was no evidence whatsoever permitting an inference that stabbing the complainer in the eye and slashing his neck was the appellant’s only resort or that there was no reasonable means of escape. Accordingly, self-defence should have been withdrawn from the jury.
• No material misdirection: Because self-defence should not have been before the jury, the complaint about the adequacy of directions on self-defence in a quarrel could not demonstrate a material misdirection causing miscarriage of justice.
• Alternative reasoning: Even if the self-defence directions issue had remained live, the court would have been slow to find misdirection given the judge’s charge read as a whole and in context; and in any event would not have found a miscarriage of justice on an overall assessment.
• Appellate test clarified: The “realistic possibility of a different verdict” test was rejected as the governing approach here; outside Convention-rights cases, the court applies an overall miscarriage of justice assessment informed by its “collective knowledge and experience”.

3. Analysis

3.1 Precedents cited and their influence

(A) When a special defence must be left to the jury—or withdrawn

The decisive doctrinal anchor was Crawford v HM Advocate 1950 JC 67, where the Lord Justice General (Cooper) explained that while it is a “strong step” to withdraw a special defence, it is the judge’s duty to do so where there is no evidence from which the requisite conclusion could reasonably be drawn. Conversely, even “slight” evidence is enough to leave it to the jury.

The court treated this as the controlling framework and noted its recent endorsement in self-defence contexts in Dines v HM Advocate [2021] HCJAC 29, 2021 JC 219 and Telford v HM Advocate [2018] HCJAC 73.

Practical effect in this case: the appellant’s complaint was not resolved primarily by fine-grained analysis of the wording of the charge, but by applying Crawford to determine whether self-defence should have been before the jury at all. The Appeal Court held it should not.

(B) Self-defence in a quarrel: initial aggressor is not automatically barred

The appellant relied on Burns v HM Advocate 1995 JC 154 (following and explaining the older authorities), to argue that even if an accused “started the trouble” or “provoked the quarrel”, self-defence may still arise where retaliation is so disproportionate that the accused reasonably apprehends immediate danger, has no other means of escape, and uses no more violence than necessary.

The court accepted the legal proposition, noting it has been clear “at least since” HM Advocate v Kizileviczius 1938 JC 60, and that Burns remains an important statement of the law. But it treated the point as ultimately secondary because the evidential threshold for self-defence was not met.

(C) Appellate approach to jury directions: context and oral tradition

The Crown invoked authorities cautioning against overly textual scrutiny of charges:

• Sim v HM Advocate [2016] HCJAC 48, 2016 JC 174 (charges assessed in context of the oral tradition, evidence and speeches).
• Lauder v HM Advocate [2016] HCJAC 30, 2016 SCL 459 and Goldie v HM Advocate [2020] HCJAC 9, 2020 JC 164 (tailoring to the case’s circumstances).
• Daniel v HM Advocate [2018] HCJAC 52, 2019 SCCR 55 (not using Jury Manual phraseology is not, by itself, misdirection).
• MacDougall v HM Advocate [2021] HCJAC 32 (not every misdirection yields miscarriage of justice).

These cases informed the court’s alternative reasoning: even if self-defence were properly in play, it would likely have held that the trial judge’s directions—read with the defence speech—did not mislead the jury into thinking an initial aggressor can never claim self-defence.

(D) Mixed statements and limited evidential use of “noted” utterances

The appeal record included evidence from a senior charge nurse of incriminatory statements overheard from the appellant in hospital. The trial judge gave “conventional mixed-statement” directions (i.e., the jury may accept inculpatory parts; if exculpatory parts are accepted or raise reasonable doubt, acquittal follows).

At the appeal hearing, the appellant’s representative did not rely on a separate note attributed to a colleague that the appellant said he was “the one attacked,” recognising issues about provenance and status when such material emerges through cross-examination, with reference to McCutcheon v HM Advocate 2002 SCCR 101.

(E) Admissibility of a spontaneous report of stabbing

Although not central to the appeal ground, the court noted that a witness’s report that the complainer said “Ma, I’ve been stabbed” was admissible to prove he had been stabbed, whether as res gestae or de recenti, citing: O'Shea v HM Advocate [2014] HCJAC 137, 2015 JC 201; Lord Advocate's Reference (No 1) of 2023 [2023] HCJAC 40, 2024 JC 140; Lord Advocate's References (Nos 2 and 3) of 2023 [2024] HCJAC 43, 2025 JC 200.

This serves as a reminder that circumstantial cases can be materially strengthened by admissible, near-contemporaneous statements even when the complainer does not testify.

(F) Miscarriage of justice tests: Convention-rights vs “overall view”

In rejecting the appellant’s proposed “realistic possibility of a different verdict” test, the court drew a distinction:

• That test is used in human rights/disclosure contexts, discussed in TH v HM Advocate [2025] HCJAC 46, 2026 JC 58, with reference to Brodie v HM Advocate [2012] HCJAC 147, 2013 JC 142 and Geddes v HM Advocate [2015] HCJAC 10, 2015 JC 229.
• Outside that category, the court applies an “overall view” grounded in its experience, as explained in Geddes v HM Advocate (referencing McInnes v HM Advocate and AJE v HM Advocate).

This part of the judgment reinforces that appellate methodology may differ depending on whether the appeal is anchored in Convention-rights jurisprudence or in domestic error/misdirection.

3.2 Legal reasoning

(A) The core ratio: self-defence requires evidence supporting all three requirements

The court treated Scots law self-defence as having three requirements (as directed by the trial judge):

1. Attack (or an escalated/ongoing situation amounting to an attack requiring defence).
2. Last resort / no reasonable means of escape from the attack.
3. Proportionality / no cruel excess in the response.

The appellant’s case failed at requirement (2). The court’s analysis was strict and evidentially focused:

• It was not enough to say the Crown led no evidence of escape routes or alternatives.
• There required to be something in the evidence from which the jury could infer that the appellant had no reasonable means of escape.
• A notice of special defence “does not constitute evidence”.

Applying Crawford, the court concluded the judge ought to have withdrawn self-defence. That conclusion, in turn, defeated the appeal: if the defence should not have been left at all, criticisms of how it was explained cannot establish a material misdirection causing miscarriage of justice.

(B) “Self-defence in a quarrel” became moot—but the court still addressed it

The appellant’s principal complaint was that the jury were not told that starting a fight does not necessarily bar self-defence. The court accepted the doctrine (via Kizileviczius and Burns), but indicated that on the facts it was “very difficult” to identify any proper basis for self-defence, noting:

• Serious and targeted injuries (stab to eye; slash to neck) strongly suggested cruel excess.
• The defence theory that the appellant may have been unarmed initially was undermined by evidence that “both” had blades.
• Post-incident conduct (not seeking help; going to a pub; threats) supported inference of murderous intent rather than defensive reaction.

On the directions point specifically, the court noted that defence counsel had explicitly told the jury that an initial aggressor can still claim self-defence in law, and that the judge’s references to an “ongoing situation” and “being attacked or the matter goes on further” would have been understood as engaging with that submission. While a more precise adaptation of the Jury Manual specimen direction would have been preferable, the court was not persuaded there was misdirection.

(C) The court’s approach to miscarriage of justice (if needed)

Even if a misdirection had been established, the court indicated it would not have found miscarriage of justice on an overall assessment, given:

• the strength of circumstantial evidence pointing to a murderous assault,
• the paucity and inconsistency of any material supporting self-defence, and
• the disproportionality between any inferred threat and the violence used.

3.3 Impact

(A) A sharpened evidential discipline for self-defence in judge-led directions

The most significant practical impact is the reaffirmation—applied robustly—that a judge must assess whether there is an evidential basis for each component of self-defence. Where there is none (particularly on “no reasonable means of escape”), the judge should withdraw the special defence rather than attempt to accommodate it through nuanced directions.

(B) Litigation strategy: “absence of Crown proof” is not a substitute for defence evidential foundation

The judgment underscores a recurrent forensic pitfall: treating self-defence as if it operates like a pure “Crown failure” argument. While the burden to negative self-defence lies on the Crown once properly in issue, the defence must still point to evidence capable of raising it, including evidence supporting the “last resort” element. Submissions that “there was no evidence of escape” do not create that evidential foundation.

(C) Direction-writing: Jury Manual is guidance, but omission may matter when the defence is properly live

The court reaffirmed that specimen directions are not mandatory wording. However, the case implicitly signals that when self-defence is properly live and “quarrel/provocation” is central, a tailored direction explaining that an initial aggressor may still rely on self-defence (depending on disproportionate retaliation and the other requirements) remains best practice—even if failure will not always amount to misdirection.

(D) Appeals: clarifying when “realistic possibility” is the wrong lens

The court’s treatment of the appellate test helps confine “realistic possibility of a different verdict” to its main habitat (Convention-rights/disclosure), and confirms that ordinary misdirection appeals are assessed through an “overall view” miscarriage-of-justice analysis.

4. Complex concepts simplified

4.1 “Special defence” (self-defence) and what the notice does—and does not do

A special defence notice is procedural: it alerts the Crown to a line of defence (here, self-defence). It is not evidence. The jury may only consider self-defence if there is evidence from which the legal requirements could reasonably be inferred.

4.2 The three requirements of self-defence (as used in this case)

• Attack: the accused must be responding to an attack (or an escalating situation amounting to one).
• Last resort: the accused must have had no reasonable way to avoid or escape the danger other than using force.
• No cruel excess: the force used must be proportionate and not excessive in the circumstances as the accused reasonably perceived them.

4.3 “Self-defence in a quarrel”

Starting a quarrel or even beginning an assault does not automatically bar self-defence. If the other person responds with disproportionate violence creating immediate danger, and the accused cannot reasonably escape, the accused may still be entitled to defend themselves—provided their response is not excessive.

4.4 “Mixed statement” direction

When the Crown leads a statement by the accused that contains both incriminating and potentially exculpatory parts, the jury may accept the incriminating parts; but if the exculpatory parts are accepted (or create reasonable doubt), the accused must be acquitted.

5. Conclusion

[2026] HCJAC 13 is most significant not for developing the substantive doctrine of self-defence in a quarrel (which the court confirms is long-established), but for its firm, practical application of the threshold evidential rule for special defences:

• Self-defence should not be left to a jury unless there is evidence supporting each of its essential elements, including “no reasonable means of escape”.
• A special defence notice and counsel’s submissions cannot supply missing evidence.
• On appeal, alleged imperfections in directions will not found a miscarriage of justice where the defence should not have been in issue, and—more generally—ordinary misdirection appeals are assessed by an overall miscarriage of justice approach rather than a “realistic possibility” test.

For trial practice, the case is a reminder that if self-defence is to be advanced (especially in circumstantial cases where neither main participant testifies), the defence must identify admissible evidence capable of supporting all components of the doctrine—most notably the “last resort” requirement—otherwise the court may be bound to remove the issue from the jury altogether.