APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Paton Lord Bracadale	[2014] HCJAC 117 HCA/2014/1162/XC   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   NOTE OF APPEAL AGAINST CONVICTION   by   BRIAN HILL Appellant;   against   HER MAJESTY’S ADVOCATE Respondent:   _____________

Appellant: C Fyffe, Solicitor Advocate; Paterson Bell (for Bruce Short, Dundee)

Respondent: Brown QC AD; the Crown Agent

 

23 October 2014

Introduction

[1]        On 13 February 2014, at the Sheriff Court in Edinburgh, the appellant was found guilty of having with him in a public place, without reasonable excuse, an article which had a blade, that is to say 2 knives, contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49(1).  There had also been a charge of possession of heroin with intent to supply, but that charge was found not proven.  The appellant was sentenced to 6 months imprisonment, backdated to 23 October 2013.

[2]        This appeal raises a question concerning the nature of directions to a jury relative to the statutory defence of reasonable excuse.  In short, the appellant maintained that he had been unaware of the knives when he began driving the car in which they were ultimately found.  His position was that these knives had been put in the car by a third party. 

 

Evidence
[3]        The evidence was that the appellant had parked his car on Crewe Road North, Edinburgh.  He went to the boot and opened it before returning to the pavement where he was stopped by the police.  The car was searched.  A scalpel type knife was found in the centre console, in open view, along with a mobile phone.  Another knife was found, in the boot, in or under a bag, underneath certain holdalls containing clothing.  Paperwork bearing the appellant’s name and further phones were also found in the boot.  The car was registered to the appellant as a Motability vehicle.  Another individual was insured to drive it.  The appellant himself had neither a licence, nor insurance, in respect of the car.

[4]        The appellant gave evidence to the effect that he had fallen out with his girlfriend.  He had left her house, taking some of his clothing, cash and documents.  His friend, SS, had been insured to drive the car.  He therefore took a taxi to Mr S’s house in order to get a lift in the Motability car.  Mr S refused, for whatever reason.  The appellant then went to the car, put his possessions in the boot and drove off.  He did not notice the knife in the centre console until after he had driven off.  He had no knowledge at all of the knife in the boot. 

 

Charge
[5]        When he came to charge the jury, the sheriff stated the following:

“The words ‘have with him’ call for two comments.  Firstly, they simply have their ordinary meaning.  They describe a factual situation of ready availability.  They don’t involve any complicated legal concepts.  Knowing of the presence of the article, or its intended use, is not essential.  Secondly, ready availability obviously covers the situation of someone carrying an article or having the article about his person, but it also covers having access to the article … for example in a car nearby.  Accessibility, applying your common sense, is the key.  It’s an essential of the offence that the accused has the article with him in a public place. …

For the Crown to prove this charge you’d need to be satisfied that … the accused had the articles referred in the charge with him in the sense I’ve described.  …”.

 

There was no mention at all of the defence of reasonable excuse, although this had been raised with the sheriff in submissions during the trial.

[6]        In due course the jury returned to ask the sheriff a specific question, which was: “Please clarify whether ‘have with’ requires knowledge of the presence of the item”.  The sheriff simply repeated what he had already said; that the words had their ordinary meaning and described a factual situation of “ready availability”, “knowing of the presence of the article, or its intended use, is not essential”. 

 

Submissions
[7]        The contention presented to the court, under reference in the written Case and Argument to Crowe v Waugh 1999 JC 292, was that the jury should have been directed that the appellant’s lack of knowledge of the knives, spoken to by him in his evidence, may have amounted to the defence of reasonable excuse.  Accordingly a miscarriage of justice may have occurred.

[8]        In response, the advocate depute accepted that there may have been a misdirection relative to the knife in the boot, but there may have been room for distinction relative to the knife in the console. 

 

Decision
[9]        The offence under section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 is committed where a person “has” “with him” a bladed article.  The words in this section have been interpreted differently in the respective statutory provisions on the carrying of knives in Scotland and England.  In England it would appear that knowledge is essential for a person to have an article “with him” (R v Cugullere [1961] 1 WLR 858, Salmon J, delivering the Opinion of the Court, at 860).  In Scotland it is clear from Crowe v Waugh 1999 JC 292 that the approach taken is that Parliament deliberately intended not to include such factors as knowledge and intent in the section and that therefore these matters are irrelevant to the initial question of whether someone has an item with him (ibid Lord Prosser, delivering the Opinion of the Court at 296). 

[10]      The Scottish approach has been to factor in knowledge at the stage of considering whether the statutory defence is available.  Thus, it may be a reasonable excuse if a person is unaware of the existence of the offending item in circumstances in which he would have no reason to have been so aware (ibid).  Thus, it may not be a reasonable excuse that the accused had forgotten of its presence in the relevant place, but it could be if he never had had any such knowledge.

[11]      It follows from this that the terms of the Jury Manual, which was used by the sheriff in framing his direction, may be sound, even if expressed in rather difficult language, so far as they go.  It is correct to say that a person can have an item with him without knowing of the item’s existence, at least if he ought to have been aware of it.  Nevertheless, where lack of knowledge is proffered as an excuse by an accused person in evidence, as in this case, it is almost inevitable that an appropriate direction should be given to the effect that such an excuse may be found to exist by the jury.  It follows, therefore, that this appeal must be allowed and the conviction quashed.