Bruce Smith V. Procurator Fiscal, Aberdeen
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Philip,Lady Clark Of Calton |
| Neutral Citation | [2014] HCJAC 25 |
| Docket Number | XJ908/13 |
| Year | 2014 |
| Published date | 10 April 2014 |
| Court | High Court of Justiciary |
| Date | 10 April 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2014] HCJAC 25 | |
| Lady Smith Lady Clark Lord Philip | Appeal No: XJ908/13 OPINION OF LADY SMITH in APPEAL AGAINST CONVICTION BY STATED CASE by BRUCE SMITH Appellant; against PROCURATOR FISCAL ABERDEEN Respondent: _______ |
Appellant: Jones; Geo Mathers, Aberdeen
Respondent: Wade, QC, AD - Crown Agent
10 April 2014
Introduction
[1] The appellant was convicted, on 3 September 2013, at Aberdeen Sheriff Court, of having offensive weapons in his possession without a reasonable excuse. The locus was Aberdeen Railway Station and the weapons were a baton and a knuckleduster. The appellant lives in Aberdeen. He was 20 years old at the time of the offence.
Background
[2] The circumstances were, as explained by the sheriff in the stated case, that the appellant was returning home from having spent a week's holiday in Cyprus where he had purchased the items with the intention of taking them home and keeping them under his bed, as souvenirs. His journey home had taken him, initially, to Newcastle, where he had flown to from Cyprus. He had stayed overnight there, in a hotel, and caught a train to Aberdeen the following morning, arriving at Aberdeen Station at about 3pm.
[3] The items were in the appellant's suitcase which was searched after the appellant had become involved in an altercation with Scotrail staff.
[4] It was not disputed that the appellant was in possession of them when apprehended in Aberdeen Station. Nor was it disputed that they amounted to offensive weapons under and in terms of the Criminal Law Consolidation (Scotland) Act 1995 ("the 1995 Act") sec 47(1), as amended.
The Defence of Reasonable Excuse
[5] A defence of "reasonable excuse" was advanced on behalf of the appellant, based on the fact that he was on his journey home, after having bought the items in Cyprus. Reference was made to the case of McGuire v Higson 2003 SLT 890. The sheriff rejected the defence. Whilst he accepted that, at the time the items were discovered, the appellant was still on his journey home, it was a lengthy journey which had been interrupted by an overnight stay in Newcastle. That being so, the case of McGuire v Higson could be distinguished. He said:
"[10] I decided that the appellant had not made out a defence of 'reasonable excuse'. The appellant had purchased the weapons in question outside the country, and surprisingly, appears to have been able to bring them into the country without challenge. I accepted that the weapons remained within the appellant's suitcase at Aberdeen Railway Station, and that he was in the course of a journey back to his home. However, that lengthy journey had been interrupted by an overnight stay in Newcastle and he was detained at the locus following an altercation with a member of railway staff at the locus.
[11] I concluded that the case of McGuire v Higson could be distinguished. In that case the accused had been apprehended in the street immediately outside the shop where the item had been purchased. That purchase had taken place immediately before he was challenged. The accused in that case was apprehended at such an early stage that his possession could not be separated from the circumstances of the purchase of the weapon. This amounted to criminalizing the purchase of the weapon which was outwith the scope of the legislation. However, the circumstances in the appellant's case were different. I took the view that possession of weapons in a public place did not fall to be automatically covered by a cloak of "reasonable excuse" simply because at the relevant time the person concerned was in the course of a journey which would end up at home. That would be in effect to grant safe passage through the country for weapons of this kind with no legitimate purpose brought in from abroad."
Submissions for Appellant
[6] Counsel submitted that the sheriff had erred in failing to appreciate that the relevant time at which the defence of reasonable excuse has to be considered is the time of arrest. The question was, therefore, whether, at the time he was stopped at Aberdeen Railway Station, the appellant had a reasonable excuse. He referred to the case of McGuire v Higson and submitted that the sheriff was wrong to suggest that it was authority for the proposition that, for a reasonable excuse in a case where the person was taking the items home after purchase, there needed to a very close connection between purchase and possession. Further, the sheriff was wrong to have focused on events in Cyprus and that it could be an offence to import such items through airport security. If the appellant had committed an offence by bringing the items into the UK at Newcastle, that was irrelevant. The appellant was not charged under the Customs and Excise Management Act 1979 ("the 1979 Act") sec 50(3) nor was he charged under the Criminal Justice Act 1988 ("the 1988 Act") sec 141(4). Finally, the sheriff had no basis for approaching the case on the basis that floodgates would be opened to the granting of safe passage for weapons of this kind, with no legitimate purpose, being brought in from abroad.
[7] The issue was one of reasonable excuse. The appellant was taking the items home to keep them there as souvenirs. The sheriff accepted that that was his purpose and was wrong, accordingly, to have failed to accept that he had a reasonable excuse for having the items in his possession.
Submissions for the Crown
[8] The advocate depute relied on the sheriff 's reasoning at paragraph 11 of his report.
[9] However, she also sought to rely on section 50(3) of the 1979 Act and section 141(4) of the 1988 Act and Schedule 1 to the Criminal Justice Act 1988 (Offensive Weapons) (Scotland) Order 2005/483 ("the 2005 Order"), which specified that the provisions of section 141 of the 1988 Act apply to knuckledusters and batons. She submitted that the importation of the items contravened section 141(4) of the 1988 Act although she accepted that the appellant was not prosecuted under those or any of the provisions of the 1979 Act. It could not, she submitted, be a reasonable excuse that a person was taking home an item which should not have been imported into the country in the first place. These circumstances were far removed from those in the case of McGuire v Higson.
The provisions of section 50 of the 1979 Act include:
" 50.- Penalty for improper importation of goods
(1) Subsection (2) below applies to goods of the following description, that is to say-
(a)....
(b) goods the importation, landing or unloading of which is for the time being prohibited or restricted by or under any enactment.
(2) If any such person with intent ...... to evade any such prohibition or restriction as is mentioned in subsection (1) above -
(a) ............unloads from any aircraft in the United Kingdom .........any goods to which this section applied...........; or
(b) removes from their place of importation ............any goods to which this subsection applies.....
he shall be guilty of an offence under this subsection and may be arrested."
Accordingly, an essential element of an offence under section 50(2) of the 1979 Act is that a person not only brings prohibited goods into the UK but does so with a particular intention, the relevant one for present purposes being that of evading a statutory prohibition. Further, the offence is committed when - in the case of aviation transport - the goods in question are unloaded from an aircraft at a UK airport. In this case, that would mean any offence committed by the appellant under this legislation would have been committed at Newcastle airport but would only have been committed if he had brought the items into the UK with the intention of evading a statutory prohibition.
[10] There is no finding in fact that the appellant brought the items into the UK with the intention of evading any statutory prohibition.
[11] Both the English and Scottish provisions of section 141 of the 1988 Act include:
"141.- Offensive weapons.
(1) .........
(2) .........
(3) .........
(4) The importation of a weapon to which this section applies is hereby prohibited."
[12] The offence is committed at the point of importation. Thus, where a person imports a prohibited weapon into the UK by flying into Newcastle airport with the weapon in his luggage, the offence is committed in Newcastle. If he, thereafter, travels to Aberdeen, the place of importation and, therefore, of commission of the offence, is still Newcastle.
[13] It ought also to be noted that section 141 does not provide that simple possession of any weapon is prohibited. The circumstances in which possession is illegal under this legislation are restricted to those where the possession is "for the purpose of sale, or hire" (see: section 141(1)). There is no suggestion in the present case that the appellant possessed the items for sale or hire.
[14] The current list of prohibited weapons to which section 141 applies - which has been in force since 29 September 2005 - is set out in the 2005 Order and includes:
"1......
(a) a knuckleduster, that is, a band of metal or other hard material worn on one or more fingers, and designed to cause injury, and any weapon incorporating a knuckleduster......
..................
(q) a straight, side handled or friction lock truncheon (sometimes known as a baton)."
[15] The list of weapons in the 2005 Order provides a series of precise descriptions. Accordingly, proof that an offence under section 141(4) of the 1988 Act has been committed requires not only proof of importation but also proof that the imported items in question accord with one or more of those precise descriptions. In the case of the knuckleduster, for instance, it would be necessary to...
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