Appeal Against Conviction By William Neil Lauder Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Bracadale,Lady Smith |
| Neutral Citation | [2016] HCJAC 30 |
| Date | 09 March 2016 |
| Published date | 08 April 2016 |
| Docket Number | HCA/2015 |
| Court | High Court of Justiciary |
| Year | 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 30
HCA/2015/001902/XC
Lady Smith
Lord Brodie
Lord Bracadale
OPINION OF THE COURT
delivered by LADY SMITH
in
APPEAL AGAINST CONVICTION
by
WILLIAM NEIL LAUDER
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Dow; Wardlaw, Stephenson & Allan
Respondent: Prentice QC, Sol Adv; Crown Agent
9 March 2016
[1] On 1 May 2015 the appellant was convicted at Edinburgh Sheriff Court, by a majority verdict of the jury, of a single charge of theft in which it was alleged that he had, over a period of eight and a half years, between September 2004 and March 2013, stolen a quantity of jeans, jackets, other clothing, badges, labels and patches for attaching to clothing, books, bags, trousers, folders and miscellaneous items and accessories, of a total value of £194,825 or thereby.
[2] The items were said to have been stolen from a company, Aero Leather Clothing Limited. Aero specialises in the manufacture and retail of exclusive and expensive leather clothing in classic styles including American and British military style It also retails vintage style denim jeans and various associated accessories and books.
[3] The appellant who, by 2004, was aged 38 years, had been employed by Aero and its predecessor Transatlantic Trading Company since he was a young man. He had been appointed managing director of Aero in 2004 when the majority shareholder, Mr Ken Calder and his wife retired. The appellant had a shareholding amounting to about 21% of its total issued share capital.
[4] In 2012 the Calders discovered that the appellant had an Ebay account. It had been operating for about eight and a half years and the appellant had been selling Aero items on it. As a result his Paypal account had been credited with £10,184.56. The retail value of the items was £51,994.
[5] On 4 March 2013, a search under warrant was made at the appellant’s home and a substantial number of Aero items were discovered there. The value of the items uncovered in the search, when added to the goods found to have been sold on Ebay, brought out a total value amounting to the sum referred to in the charge.
[6] The Calders had gone to the business premises to challenge the appellant in September 2012 after their discovery of his Ebay account. An emotional meeting ensued in the course of which he said he hadn’t done anything wrong. His position then and at trial was that it was a perk of the job, that everybody took things from the factory all the time and that it was no big deal. It was agreed at the meeting that if the appellant resigned as director and handed back his Aero shares for transfer to employee shareholders, then the Calders would not report the matter to the police. However, the appellant did not hand back his shares and Mr Calder thereafter contacted the police.
[7] When the current allegations were made, the appellant did not dispute that he had sold the items that were identified via his Ebay account or that, so far as the items found in his house were concerned, he had removed them from Aero’s premises. He said that the Calders knew he had an Ebay account and knew he was selling items which had formerly belonged to the company. He said that Mr Calder had told him that he could take Aero property as or in lieu of overtime. When cross examined about that , after having been recalled, Mr Calder denied that he had done so. Mr & Mrs Calder and their daughter, Holly, also sold items through Ebay. Holly had sold one item of Aero clothing. Her mother had sold one item of clothing and some Women’s Land Army patches which she had ordered through Aero. Mr Calder had sold some 30 items that could be identified as having a possible link with Aero.
[8] In his charge to the jury, the sheriff gave directions on the nature of the crime of theft. At pages 5 to 6, he said:
“Theft is appropriating the property of another without the owner’s consent and with the intention of depriving the owner of it permanently.”
At page 8 he said:
“What is material for the purposes of a charge of theft is that the property didn’t belong to the accused and that he took it without the owner’s consent and with the intention of depriving the owner of it permanently.”
Then, at pages 23 to 24, after having referred to the evidence about the September 2012 meeting, he
said:
“In terms of the evidence of the accused the meeting was effectively a charade. The Calders knew that the accused had an Ebay account and knew that he was selling items which had belonged to Aero. Amongst other things in terms of the accused’s evidence Mr Calder had specifically told him that he could take items from Aero as or in lieu of overtime payment. You will remember that that was an allegation that wasn’t specifically put to Mr Calder when he first gave evidence so he was allowed to give further evidence on the point and denied that there was ever such an arrangement.”
[9] In her speech to the jury, counsel for the appellant had invited the jury to consider whether the appellant had authority, whether tacit or implied, to take the items for his collection or to sell on Ebay since if that was correct, they should acquit. Equally if they considered that he did not have such authority but honestly and reasonably believed that he did then in that event they should also acquit.
[10] We turn then to the submissions for the appellant. Counsel for the appellant, Miss Dow, relied on both grounds of appeal set out in the note of appeal,...
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