Full judgment transcript BAILII · Verbatim mirror
Read full delivered by LORD BECKETT, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
PATRICK DAVID MCGROW
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Collins, Sol Adv; Faculty Services Ltd (for Bridge Legal Ltd, Glasgow)
Respondent: Farrell, AD; the Crown Agent
14 April 2026
Introduction
[1]
The appellant challenges his conviction for attempted murder of his brother by
stabbing him repeatedly with a knife on the ground that the judge failed adequately to direct
the jury on the requirements of self-defence in a case where, the appellant maintains, it was
open to the jury to find self-defence made out despite evidence to the effect that he started a
fight whilst armed with a knife. For the purposes of the appeal, the court was provided with
2
transcripts of the evidence of a senior charge nurse from Glasgow Royal Infirmary who had
dealings with the appellant, the Crown and defence speeches and the judge's jury directions.
[2]
On 9 July 2025 at the High Court in Glasgow, the judge imposed an extended
sentence of 12 years with a 10-year custodial term following the appellant's conviction on
27 May 2025 of the following charge:
" on 13 January 2024 at [an address in Glasgow] you PATRICK DAVID MCGROW,
also known as DAVID MCGROW, did assault Andrew McGrow ... and did
repeatedly strike him on the head and body with a knife or similar implement, to his
severe injury, permanent disfigurement, permanent impairment and to the danger of
his life and did attempt to murder him."
The evidence
[3]
The judge reports that there was evidence of a history of animosity between the
brothers and that they had argued earlier on 13 January 2024 at the complainer's home
where the crime was committed. The complainer had invited the appellant to return so they
could clear things up. The judge inferred that they had argued and a fight developed in
which certain injuries were sustained by the complainer and appellant. The complainer did
not report what happened to the police and did not cooperate with their inquiries. The
police became involved on being contacted by staff at the hospital where the complainer,
and later the appellant, were treated.
[4]
Many facts were established in an extensive joint minute including identification of
the appellant as the person various witnesses were referring to, the taking of swabs and a
trail of blood from the locus, CCTV footage from a nearby pub, photographs, the taking of
DNA samples from the appellant and complainer and certain DNA findings. The joint
minute also established that the complainer sustained injuries that were severe, permanently
3
disfiguring, caused permanent impairment, were to the danger of the complainer's life and
that they were consistent with being inflicted by a knife or similar implement.
[5]
A barmaid spoke to the complainer leaving a local bar, uninjured, at 1700 hours
having spent two hours there. At 1710, the mother of the appellant and complainer received
a phone call from the complainer stating, "Ma, I've been stabbed." We note that whether the
complainer's words are viewed as part of the res gestae , which is certainly tenable, or a
statement made de recenti, the report of his comment was admissible evidence to prove that
house to find him in a bad state, seriously injured and unable to see from one eye. The
house was showing signs of a disturbance with blood throughout. The complainer told her,
falsely, that nothing had happened and then said, again falsely, that he had been attacked in
a lane. She, her daughter and husband took the complainer to hospital. The appellant was
seen after the time when the assault must have occurred in the same bar by the barmaid who
saw the complainer earlier. The appellant had blood on his hands, was animated and, at one
point, gestured towards his own eye.
[6]
A police officer spoke to attending at the locus and concluding that a violent
disturbance had taken place from the distribution of blood staining. A forensic scientist
spoke to the DNA findings. The appellant's DNA was found on swabs taken from the
hallway and garden path at the locus and on a bottle recovered nearby. DNA findings
within the locus were consistent with the complainer residing there.
[7]
The jury saw photographs of blood at the locus. Another witness spoke to the
appellant arriving at her home bleeding, asking for a towel and saying he had fallen.
4
Another witness found the appellant lying on the ground with a bleeding hand, saying he
had been attacked by three boys. The appellant was uncooperative when this witness tried
to take him to hospital and he left his car before later being collected again and taken to
hospital.
[8]
The senior charge nurse, who had 12 years' experience, was working on the night
shift from 1945 hours on 13 January 2024 and encountered the appellant when she heard
shouting and swearing from a curtained cubicle and went to investigate. He was irate and
wanted to find out what had happened to his brother. She understood that the complainer
did not want the appellant to know any medical information about him. When she told the
appellant that the complainer's condition was confidential, he responded, "Oh, so he's alive
then." The appellant's sister arrived and it was obvious that the appellant did not want the
nurse present so she left but remained outside the curtain. She heard his sister ask what had
happened and the appellant reply to the effect that they had got into a fight, both of them
had blades. When the sister asked if he had started it, the appellant confirmed that he had.
The appellant said they were having a bit of a scuffle and that he, the appellant, was stabbed
with his own blade, that wasn't the end of it, and he was going to finish him off. He had
carved into the complainer's door the words: "You are dead."
[9]
With reference to notes she had made shortly afterwards the charge nurse confirmed
that she had noted:
"[The appellant] states that him and his brother got into a fight and that both of them
had blades. She asked if he started the fight and he confirmed. Then he mentioned
he got stabbed with his own blade. He then said about his brother being slashed in
the neck and stabbed in his eye."
This was what the appellant had said. Other medical notes recorded in respect of the
appellant: "dog bites [right forearm and right shin] and knife lacerations." She confirmed
5
that the appellant had knife lacerations inside his forearm, and on his right little and ring
fingers.
[10]
In cross-examination, it was put to the witness with reference to medical notes that a
colleague had noted at 1816 hours that when he was being taken into custody the appellant
was unhappy and said that he was the one attacked. Towards the end of cross-examination,
the nurse confirmed in response to a leading question that she knew what a defensive injury
meant. The questioning continued:
"Q Now the injuries that [the appellant] had to his right hand, would it be fair to
describe them as a defensive injury?
A It could be. I don't ..."
The appellant's solicitor-advocate then cut her off from finishing what she was saying. He
then stated, "could be" and finished his cross-examination.
[11]
The appellant did not give evidence, and he adduced no further witnesses.
Speeches
Crown
[12]
The Advocate Depute observed that it was not in dispute that the appellant had
inflicted the injuries sustained by the complainer. The appellant sought acquittal by reason
of self-defence based on the comments he was reported to have made and the opinion
evidence of the senior charge nurse that the injuries to the appellant's hand could be
defensive injuries. In examining the requirements of self-defence, he invited the jury to
conclude that what the appellant told his sister to the effect that he started the attack having
gone to the complainer's house, showed that he was not acting defensively. He invited the
6
jury to infer that the appellant had arrived with a knife, not least from his comment that they
both had knives and that he, the appellant, had been injured with his own knife.
[13]
He then submitted that self-defence also fell at the second hurdle as there was no
evidence of the absence of a reasonable means by which the appellant could have escaped,
the use of violence needing to be a last resort. Indeed, there was no evidence at all that he
had no means of escape. Finally, he submitted that the appellant's actions constituted a
cruel excess of violence.
Defence
[14]
The appellant's solicitor-advocate confirmed that it was not in dispute that the
appellant was part of a violent altercation with his brother and inflicted injury. He
continued, stating that the jury knew that the appellant had lodged a special defence of
self-defence. The judge would tell the jury that it was for the Crown to meet it and not for
the defence to prove that what happened was self-defence, adding: "If the very notion of
self-defence raises a reasonable doubt with you about Patrick McGrow's suggested guilt
then you must acquit him."
[15]
The jury should conclude that the appellant did not injure his own hand. Forensic
evidence about blood spotting on a hat in the house was to the effect that it may have taken
a second blow to cause it as the appellant's wet blood would not be present before a first
blow. The jury could infer that the complainer cut the appellant's hand and then struck a
second blow causing a spot to fly off from the appellant's bleeding hand. The jury should
conclude that the complainer sustained injuries to his hand because he had raised them to
protect his face from blows with a knife. We consider this to be something of a stretch and
no more probable than alternative possibilities such as the complainer slashing at the
7
appellant's hands as he wielded his knife or the appellant cutting himself afterwards in the
realisation he had stabbed his brother in the eye. From the comments the nurse overheard,
the appellant plainly contemplated that the complainer may be dead, intended to finish him
off and had carved a threat into his front door with a knife. We also note that, having
stabbed his brother in the eye and slashed his neck, rather than seeking medical assistance
for him, the appellant made his way to a pub.
[16]
The solicitor-advocate went on to refer to the evidence of remarks made by the
appellant, that both had blades, the appellant was stabbed with his own blade and agreed
that he had started the fight. That admission was crucial to the Crown case as it was the
only possible basis to "displace the special defence of self-defence that has been lodged."
[17]
The injuries sustained by both brothers did not suggest that one was behaving more
violently towards the other. To convict, the jury would have to conclude that when the
appellant started the fight, he did so by using the knife. What did the appellant mean when
he said he started the fight? Was it just an argument or a fist fight to which the complainer
responded with the first use of a knife? The jury should find that the most likely scenario
was that the complainer attacked the appellant with a knife, repeatedly attempting to strike
his face causing the appellant to raise his hand to protect himself. The probability was that
the injury to the complainer's eye was the last thing to happen.
[18]
He referred again to the notice and that there was no onus of proof on the appellant
and continued:
"If you believe the self-defence, or just if it raises a reasonable doubt as to the guilt
of Patrick McGrow then you must acquit him. It is for the Crown to meet the
special defence, and his Lordship will tell you when a person is entitled to act in
self-defence."
8
[19]
He then submitted that there was no evidence of cruel excess as the appellant could
just as easily have sustained the serious injuries sustained by the complainer. He continued:
"Have the Crown led any evidence that Patrick McGrow had a safe means of
escaping violence from Andrew McGrow?
No. Because you heard no evidence about ... direct evidence about what happened
during the incident.
Have they led any evidence about other options that might have been available to
Patrick McGrow other than violence?
No."
[20]
The following submission is particularly relevant to the ground of appeal:
"Have they led any evidence that Patrick McGrow was not attacked first? Now, this
is where it gets a little more complicated. They have led the comment, which he
accepted, that he started the fight, but I wish to say this: in law if an accused person
starts a fight with someone and the other person responds with a disproportionate
degree of violence then the person who started the fight can still, as a matter of law,
claim self-defence. So it's not about who started the fight.
It might be about who first used the knife. If Patrick McGrow physically starts an
assault upon Andrew McGrow without any weapon and Andrew McGrow responds
by using a knife then Patrick McGrow is entitled in law to defend himself against
that disproportionate response and he would in law, in my submission, be entitled to
defend himself with a knife, because the level of violence that he'd be using to stop
the attack would not be disproportionate to the knife that's coming towards him.
Have you heard any evidence led to rebut that scenario, in my submission."
[21]
He concluded his speech by submitting that the appellant ought to be acquitted
because he acted in self-defence. If the jury considered that they could not know exactly
what happened, and so could not reach any conclusion on self-defence, then they should
reflect that if they did not know what happened, they could not conclude that this was
attempted murder. They should find a reasonable doubt and acquit.
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The judge's charge to the jury
[22]
It is unnecessary for us to outline the general directions, the definition of the crime,
verdicts etc and we shall focus on the issue of self-defence. At pages 17 to 19 of the
transcript, the judge gave conventional directions on the generality of self-defence,
reminding the jury that the appellant sought acquittal on this basis. At 17-18 he directed:
"The only purpose of a special defence is simply to give notice to the Crown that a
particular line of defence may be taken; it doesn't take away from an accused's
position that he's not guilty; it doesn't take away from the requirement on the Crown
to prove the case against the accused beyond reasonable doubt. The defence do not
need to lead [evidence] in support of it, they don't need to prove it to any particular
standard; you just consider any evidence relating to it along with the rest of the
evidence: if it's believed, or if it raises a reasonable doubt, then an acquittal must
result.
In this case the accused is saying that at the time the crime was committed he was
acting in self-defence; as a result, he should be acquitted of the charge. It will always
be for the Crown to meet that defence and to satisfy you beyond reasonable doubt
that the self-defence should be rejected."
[23]
In dealing with the first requirement for self-defence (that the accused was attacked)
after giving a standard direction, the judge further directed at 19-20:
"Effectively, you're going to have to consider whether or not [the appellant] had
been attacked, but remember also that there can be an ongoing situation whereby
something might have happened which was not as dangerous at the start but then
becomes more dangerous, and then the attack becomes more serious at that stage. So
you're going to have to look at the extent of all of the evidence in respect of this
matter that's made available to you."
[Emphasis added]
He went on to deal with the second requirement (violence can only be used as a last resort
and that any other reasonable way to avoid the attack should have been taken) and third
requirement (there must be no cruel excess in responding to the attack).
10
[24]
At 20-21, the judge observed that normally striking someone with a knife in response
to a fist would not be justified because it would not be proportionate. He then explained
that there could be exceptional circumstances. He directed at 21:
"...where, basically, if someone is being attacked with a knife and they use a knife to
try to defend themselves: that's a matter for you, ladies and gentlemen, to consider
all of the evidence presented to you, and for you to consider in this case. So you've
heard the facts, you've heard the circumstances, and you're now going to have to
decide whether or not ... if in fact you have to go that far about considering the
reasonable amount of force being used to ward off the attack: that's a matter for
you."
[25]
He summed up the three requirements for self-defence and directed at 22:
"If you think that each and every one of these three circumstances exist that I've
actually outlined for you ... (1) being attacked or the matter goes on further, and
basically it requires a person to defend themselves, (2) that they had no other means
of getting away from the attack, and (3) that any action taken was a reasonable
amount of force under all the circumstances ... these are things for you to sift
through when you're looking at that."
[Emphasis added]
[26]
At 23-24, with specific reference to the evidence of the senior charge nurse about the
appellant's utterances, he gave a conventional mixed-statement direction. He directed that
if part of it pointed to innocence, or it left them in reasonable doubt of the appellant's guilt,
the jury must acquit alluding to the Crown's position and the defence submissions in
support of self-defence.
Note of appeal
[27]
The ground of appeal was prepared by the solicitor-advocate who represented the
appellant at trial. The appellant maintains that the judge failed to direct the jury that even if
the appellant started a fight, it was still open to him to claim self-defence. Although he did
not give evidence, his statement to the charge nurse and his having wounds to his hands
11
consistent with infliction by a knife, provided a foundation. His statement that he started
the fight did not fatally undermine any possibility that he acted in self-defence as it did not
necessarily mean that he was the first to present or use a knife. The omission of a direction
on self-defence in a quarrel was a misdirection. The judge should have directed the jury that
even if they concluded that the appellant started the fight but also concluded that the
complainer responded with disproportionate violence by making first use of a knife, then
the appellant would have been entitled to defend himself with equal force. Had that
direction been given, there was a realistic prospect that the jury would have accepted
self-defence or been left in reasonable doubt of the appellant's guilt on account of it.
Submissions
Appellant
Written submissions in advance of the appeal
[28]
Again, these were prepared by the solicitor-advocate who represented the appellant
at trial and state: "the defence relied upon the previously lodged special defence of
self-defence." He goes on to submit that evidence of injuries to the appellant's hands,
evidence from the forensic scientist about the mechanism necessary to create a blood spot,
permitting the inference that the appellant was struck repeatedly with a knife by the
complainer, the lack of clarity of what the appellant had meant in stating that he started the
fight, his comment that both men had knives and the nursing note that the appellant was
unhappy when taken into custody because he was the one attacked, allowed the jury to find
that the appellant had acted in self-defence.
[29]
Failing to direct the jury that the appellant could have been acting in self-defence
even if he started the fight was a misdirection: Burn s v HM Advocate 1995 JC 154. In
12
delivering the opinion of the court, the Lord Justice General (Hope) explained that it is not
the law that a person who started the trouble or provoked the quarrel cannot plead
self-defence. It would depend on the nature of any retaliation to an accused's actings and
whether it was so disproportionate to the accused's actings as to give rise to the reasonable
apprehension that he was in immediate danger from which he had no other means of escape
and whether he used no more violence than was necessary to protect himself from serious
injury.
[30]
The jury were entitled to find that although the appellant may have started the fight,
the first use of the knife was by the complainer. If so, the appellant would be entitled to
plead self-defence as the complainer's response with a knife to the appellant starting the
fight without a knife would be disproportionate. The judge should have directed the jury
along the lines of the specimen direction in the Jury Manual chapter on self-defence where it
addresses self-defence in a quarrel: Judicial Institute for Scotland, 3 September 2024 at
45.4-5/133. The directions he gave (quoted above at paras [23] and [25]) were insufficient.
The jury were left with the impression that the appellant could not plead self-defence
because he had started the fight. This was a material misdirection constituting a miscarriage
of justice.
The appeal hearing
[31]
A different solicitor-advocate appeared. Whilst he broadly adopted his
predecessor's written submissions, he did not found on the comment spoken to by the
charge nurse from a colleague's note that the appellant "said that he was the one attacked."
He was not satisfied of its provenance and recognised its limited status when adduced in
cross-examination by the appellant: McCutcheon v HM Advocate 2002 SCCR 101, the Lord
13
Justice General (Cullen)at [15] and [16(ii)]. Although he had to concede that his predecessor
had not identified in his speech any basis in the evidence capable of meeting the second
requirement, given that the appellant was injured there might be an inference that it was not
possible for him to safely escape the situation.
[32]
It was a possible interpretation of the charge nurse's evidence that the appellant was
saying that it was his brother who got stabbed with his own blade bringing the situation to
an end. We note that this is the direct opposite of the submission made for the appellant to
the jury. The transcript of speeches on 23 May 2025, at page 57, records the appellant's
solicitor-advocate, in summarising the evidence of the charge nurse, stating:
"[she] heard Patrick McGrow [the appellant] tell his sister that he and his brother got
into a fight. Both of them had blades. Patrick was actually stabbed with his own
blade and Patrick agreed he started the fight."
[33]
The judge's directions on self-defence in a quarrel were insufficient. If the court is
satisfied that there was a basis for the jury to conclude that the appellant was the initial
instigator of violence without a weapon, it would be a misdirection sufficiently material to
constitute a miscarriage of justice.
Crown
Written submissions in advance of the appeal
[34]
The appeal should be determined according to certain general principles. Directions
should be viewed in the context of our oral tradition, and a charge should not be scrutinised
as if the jury had not heard the evidence and speeches: Sim v HM Advocate [2016] HCJAC 48 , 2016 JC 174 . A judge should engage with the specifics of the trial and tailor the charge to its
14
phraseology proposed for specimen directions in the Jury Manual does not of itself
every misdirection leads to a miscarriage of justice: MacDougall v HM Advocate
[35]
The Crown case was circumstantial and neither the appellant nor complainer gave
evidence. The overheard statement by the appellant that he started the fight was of central
importance. There was plainly a cruel excess of violence in the appellant's actions given the
minor injuries he sustained. The appellant's actions after the event were supportive of his
guilt. Any attempt to found on the most favourable part of the various statements attributed
to him were undermined by the inconsistency of those statements. He said he was attacked
by three men; he said he started the fight; and he said that he had been the one attacked.
[36]
The judge posited an ongoing situation whereby something not dangerous at the
start became more dangerous and the attack more serious, as an alternative to the appellant
having been attacked being the basis for self-defence. He also referred to "being attacked or
the matter goes on further and basically it requires a person to defend themselves."
[37]
The judge did not direct the jury that an initial aggressor could not successfully claim
self-defence. The special defence of self-defence remained before the jury. When the charge
is read as a whole, and in the context of the evidence and speeches, there was no
misdirection. Even if there was a misdirection, there is no miscarriage of justice in this case
when regard is had to the context of the evidence as a whole and the content of speeches.
The appeal hearing
[38]
The absence of testimony from the complainer and appellant limited the scope of the
evidence on which self-defence might be based. Whilst neither full nor detailed, the trial
15
judge's directions were sufficient in the circumstances, particularly in the context of the
defence speech to which he was plainly responding. In the appeal hearing, the appellant's
representative came to recognise that there was little, if any, basis in the evidence to meet the
second requirement of self-defence. The appeal should be refused.
Decision
[39]
In Crawford v HM Advocate 1950 JC 67, the Lord Justice General (Cooper) expounded
a principle concerning special defences that has been followed ever since. He explained,
at 69, that it is a strong step to withdraw a special defence from the jury's consideration but
there are circumstances where it is a judicial duty to do so. He continued:
"...[I]t is the duty of the presiding Judge to consider the whole evidence bearing
upon self-defence and to make up his own mind whether any of it is relevant to infer
self- defence...If he considers that there is no evidence from which the requisite
conclusion could reasonably be drawn, it is the duty of the presiding Judge to direct
the jury that it is not open to them to consider the special defence. If, on the other
hand, there is some evidence, although it may be slight, or even evidence about
which two reasonable views might be held, then he must leave the special defence to
the jury ...".
and Telford v HM Advocate [2018] HCJAC 73 , both cases involving self-defence. [40]
This raises a problem for the appellant not reflected in the written argument to which
we alerted parties in the appeal hearing. There was no evidence whatsoever, nor basis to
infer, that stabbing the complainer in the eye and slashing his neck was the appellant's only
resort. It is not sufficient for the appellant to assert, as he did in addressing the jury, that the
Crown had led no evidence about possible means of escape. There required to be something
in the evidence permitting the jury to reach the conclusion that there was no means
reasonably open to the appellant to escape from any threat posed by the complainer. There
16
was nothing. A notice of special defence of any kind, including self-defence, does not
constitute evidence, even if some rather loose submissions for the appellant (see paras [14],
[16] and [18] above) were liable to suggest otherwise. Accordingly, there was no basis in the
evidence for the second of the three requirements for self-defence and therefore no basis for
self-defence to remain before the jury. The trial judge should have directed the jury
accordingly and withdrawn self-defence from the jury's consideration. That is sufficient
reason to conclude that there has been no material misdirection and no miscarriage of
justice. The appeal is accordingly refused.
[41]
Even without an insurmountable problem with the second condition for self-defence,
in the circumstances of this case, it is very difficult to identify a basis on which the jury could
properly have found that the appellant acted in self-defence. It was almost inevitable that
the jury would find that there was a cruel excess in what the appellant did. The defence
theory that the appellant may have been unarmed when the fight began appears to be
contradicted by his comment that they both had blades.
[42]
In considering if there was a misdirection as proposed, we recognise that a special
defence of self-defence may be open even where the person accused started a fight. That has
been clear at least since HM Advocate v Kizileviczius 1938 JC 60. In Burns , the Lord Justice
General reviewed and explained the law in this regard.
[43]
Had the ground of appeal advanced remained a live issue, and the appeal turned on
whether there was a misdirection, we note that in his speech to the jury (see para [20] above)
the appellant's solicitor-advocate explicitly founded on the principle that self-defence can be
available to the person that starts a fight. He first advanced this as a general proposition and
then sought to particularise it to the circumstances of this case. He postulated a scenario
where the appellant assaulted the complainer without using a weapon, but the complainer
17
responded with a knife, such that the appellant would be entitled to defend himself with a
knife against such a disproportionate response. It is plain to us, as it would have been to the
jury, that the judge's directions in the passage set out at paras [23] and [25] above, and
particularly the words emphasised, were referring to that submission. Accordingly, whilst it
would have been preferable to have addressed the issue more precisely, and an adaptation
of the specimen direction in the Jury Manual would have been an appropriate method, we
are not persuaded there was a misdirection. For this reason, we would refuse the appeal on
this ground if we had not already done so for the reasons at paras [39] and [40] above.
[44]
Even if we had concluded that there was a misdirection as proposed, and that
self-defence was available on some theoretical basis, we would not determine it on a
"realistic possibility of a different verdict" test as the appellant proposed that we should.
That test applies in human rights cases, mostly those concerned with a failure of disclosure
by the Crown: TH v HM Advocate [2025] HCJAC 46 , 2026 JC 58 at [24] and [25] citing the explained, at para [89]:
"...in any criminal appeal, other than one based on a breach of Convention rights and
thus governed by the UK Supreme Court's dicta in McInnes v HM Advocate , the court
has to apply its collective knowledge and experience (AJE v HM Advocate ) in taking
an 'overall view of the circumstances' (Brodie v HM Advocate ) on whether a
miscarriage of justice can be seen to have occurred..."
[45]
Taking that approach, we would not have been persuaded there was a miscarriage of
justice given the strength of the evidence inferring a murderous assault and the paucity of
any evidence to support self-defence. There was a plain disproportion between any violence
that it could be inferred the complainer offered to that used by the appellant. Such evidence
as there may have been in the appellant's utterances was riddled with contradictions. Any
18
impression that the appellant acted defensively is further undermined by his failure to take
any action to secure medical assistance, his contemplation that his brother would be dead,
his professed intention to finish him off and his carving a threat to similar effect on the
complainer's door. That said, whilst we repeat that it is not the appropriate criterion in this
case, we would also conclude that there is no realistic possibility that fuller directions on
self-defence in a quarrel would have prompted a different verdict.
[46]
For all of these reasons, the appeal is refused.