Kevin Glancy V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Pentland,Lord Clarke |
| Neutral Citation | [2011] HCJAC 104 |
| Date | 25 October 2011 |
| Year | 2011 |
| Court | High Court of Justiciary |
| Published date | 25 October 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Clarke Lord Pentland Lord Philip | [2011] HCJAC 104 Appeal No: NO. XC679/10 OPINION OF THE COURT delivered by LORD CLARKE in Appeal against Conviction by KEVIN GLANCY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Carroll, Solicitor/Advocate; Fitzpatrick & Co
Respondent: Wade QC, Advocate Depute; Crown Agent
25 October 2011
[1] On 23 September 2010 at Glasgow Sheriff Court, the appellant was found guilty by a majority verdict of the jury of the following charge:
"On 27 June 2010 at 40 Tarfside Oval, Glasgow being a public place you KEVIN GLANCY did have with you an article to which section 49 of the aftermentioned Act applies, namely a knife; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49(1)".
The appellant was sentenced to two years imprisonment from 28 June 2010.
[2] Section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 provides:
"Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence".
Section 49(2) provides:
"Subject to subsection (3) below this section applies to any article which has a blade or is sharply pointed".
Section 49(4) provides a statutory defence with which the present appeal is concerned. It is in the following terms:
"(4) It shall be a defence for a person charged with an offence under subsection (1) above to show that the person had a reasonable excuse or lawful authority for having the article with him in the public place".
The following subsection, subsection (5), provides examples of how the defence might arise:
"(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under subsection (1) above to show that he had the article with him -
(a) for use at work;
(b) for religious reasons; or
(c) as part of any national costume".
Section 49(2), as has been observed, is cast in wide terms but that is deliberate. It can cover a wide range of articles, for example, implements used in the garden or common household articles which may be used for innocent everyday purposes but which may also be used for extremely harmful purposes, as the experience of the courts shows. While section 47 of the same legislation deals separately with the prohibition of the carrying of offensive weapons, as defined in section 47(4), the court in Crowe v Waugh 1999 SLT 1181, under reference to the provisions of section 49, stressed that the purpose of the legislation, including section 49, was a general prohibition against carrying in a public place an article with a blade or point, and that the purpose of the legislation must be to protect the public from persons who may use such articles to cause injury or threaten others. In so doing they were endorsing the approach of the court in Lees v Lister 1994 SLT 1328.
[3] In the present case the appellant did not dispute that he was carrying the knife. He gave evidence that he had been in the house of a female friend near to his own home: his brother was in his own home and had telephoned asking him for a sharp knife to prepare food; he had taken the knife from his friend's house intending to take it across the road to his own home and give it to his brother. In the light of that evidence the Sheriff gave certain directions in relation to the section 49(4) defence.
[4] The first two grounds of appeal against conviction in the present appeal taken together are, in summary, that the sheriff in the present case, misdirected the jury in telling them that the onus of establishing the statutory defence, contained in section 49(4), lay with the appellant on a balance of probabilities. This was a misdirection, it was contended, since it offended the principles of article 6(2) of the ECHR with regard to the presumption of innocence and moreover section 49(1) of the Act interfered with convention rights provided under article 8(1) which by virtue of article 8(2) must not be interfered with any more than was necessary in a democratic society. Section 49(4) required to be read down so as to impose an evidential burden of proof as opposed to a persuasive or legal burden of proof
[5] In Donnelly v HMA 2009 SCCR 512 the appellant was convicted under section 49(1) of having in a public place a bladed item, namely a samurai sword. The appellant appealed on the ground, inter alia, that the sheriff erred in directing the jury that the appellant was required to satisfy the jury, on a balance of probabilities, that he had a good reason for having the sword. It was submitted that any burden of proof on the appellant in relation to the statutory defence was an evidential one only. It remained for the Crown to exclude the defence, once raised, beyond reasonable doubt. That submission was made under reference to article 6(2) of the ECHR. At paragraph 9 of the judgment of the court, Lord Carloway, in giving that judgment said
"The terms of the legislation are that the substantive offence consists of having a bladed weapon in public. The Crown must prove these facts beyond reasonable doubt. That is how the sheriff directed the jury. There is then a statutory defence, which Parliament has provided, whereby a particular accused can demonstrate that he had a good reason for carrying the bladed weapon on the balance of probability. For the same reasons which were given in L v Director of Public Prosecutions (Pill LJ at para.27) and R v Matthews (Field J, also at para.27), the court is satisfied that Parliament, in providing the reverse onus has gone no further than is legitimate to strike a fair balance between the general interests of the community and individual fundamental rights. Accordingly, the submission that the statutory defence is incompatible with article 6(2) is rejected."
His Lordship in referring to "weapon" at two places in that passage was in error. The reference should have been to "article" having regard to the terms of the relevant statutory provision, namely section 49. Contrary to what was submitted in the present case, however, as we shall in due course demonstrate, this slip in language does not affect the validity of the reasoning contained in the passage just cited.
[6] In the present case, the solicitor-advocate for the appellant, Mr Carroll, was driven to invite us to hold that the decision in Donnelly was wrong. He accepted, too, that if the court saw any force in his submissions to that effect it would be necessary, standing the terms of the decision in Donnelly, to have the present appeal referred to a larger court. Mr Carroll's submission was that the decision in Donnelly was out of line with what he described as "the direction of travel" of decisions by other courts in other cases which had held that statutory legal burdens of proof were incompatible with convention rights. That "direction of travel" it was...
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