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 1979 Act

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.

The 1988 Act

[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 show not only that the ring could cause injury; it must be established that it is designed to do so. The findings in fact in the present case state that the items were a "silver knuckleduster" and a "police- style baton". They go no further than that. The sheriff did not consider or determine whether they met the requirements of the descriptions set out in the list in the 2005 Order. It would, accordingly, be wrong to proceed on the basis that the items were covered by the prohibition against importation in section 141(4). Not, I would add, that the sheriff did so. He did not consider the provisions of the 1979 Act, the 1988 Act or the 2005 Order.

Decision

[16] The terms of section 47(1) of the 1995 Act make it plain that it may be lawful to possess an offensive weapon whilst in a public place. The fact that the item in question is an offensive weapon does not negate the possibility of the possession of it being lawful; it will be held to be lawful possession, however offensive the weapon, if the person had a reasonable excuse for having it with him at the time he is arrested.

[17] Accordingly, the question for the sheriff was whether, at the time when the appellant was arrested, he had a reasonable excuse for having the items with him. Each case will turn on its own facts and circumstances (Grieve v MacLeod 1967 JC 32; Lister v Lees 1994 SLT 1328) and it must always be recognised that the question relates, temporally, to the point at which the person is arrested in the public place (DPP v Gregson (1993) 96Cr App R 240; McGuire v Higson at p.891). The question in this case, therefore, was whether, in the light of the whole facts and circumstances, the appellant had a reasonable excuse for being in possession of the items when he was arrested at Aberdeen Railway Station. The question was not whether he committed an offence by bringing them into the UK, at Newcastle airport - not that that was, actually, a question which was addressed by the sheriff either in his findings in fact or in his note. The appellant was evidently not stopped, challenged or charged with any offence at Newcastle. In any event, it would not be appropriate, for the reasons already explained, to assume that the items which the appellant was found to possess in Aberdeen were illegally imported by him into the UK when he arrived in Newcastle. Insofar as that was the approach which was urged on the court by the Advocate depute, I would reject it. Whilst the sheriff did not, I accept, go that far, he comes close to it. At paragraph 10 of the stated case, he states: "The appellant had purchased the weapons in question outwith the country, and surprisingly appears to have been able to bring them into the country without challenge." That was, however, an irrelevant consideration as were his later comments regarding the undesirability of granting the weapons "safe passage" through the country.

[19] Accordingly, I agree that the sheriff's observations regarding the entry into the UK of these items and their travel through it, were not relevant, particularly in circumstances where there was no basis in the findings in fact on which it could be concluded that the appellant did commit an offence when he brought the items into the UK.

[20] In the present case there was also no finding in fact - or indeed, suggestion - of illegality surrounding the purchase of the items. Nor was it doubted that the appellant was still en route home from Cyprus, where that purchase had taken place. The sheriff, however, seems to have understood McGuire v Higson as restricting the availability of an "on my journey home" excuse from being successfully advanced as being reasonable to those circumstances where the discovered possession was so close in place and time to the purchase as to be indistinguishable from it; that would, however, exclude any case where the appellant was stopped subsequent to the purchase whilst travelling home, notwithstanding it being accepted that that , and only that, was the reason he had the offending item with him - which was the position here . In so doing, the sheriff misdirected himself in law. Interpretation of the term "reasonable excuse" is not fettered in that way.

[21] Further, the terms of paragraph 11 of the stated case, where the sheriff refers to "weapons of this kind" would seem to indicate that he came very close to finding that the appellant had no reasonable excuse for possession simply because the items were offensive weapons. The circularity of that approach would, however, deprive the availability of the "reasonable excuse" defence of any meaningful content and cannot, in my opinion, be correct.

[22] I consider that the findings in fact show that the appellant had advanced a reason which the sheriff accepted as genuine and credible and which, in all the circumstances, had to be accepted as constituting a reasonable excuse for being found to have the items in his possession in Aberdeen Railway Station. The fact that he had broken his journey the night before or the sheriff's evident concern - however natural and understandable - about weapons brought in from abroad being given safe passage through the country or about the nature of these particular weapons, were not relevant considerations. They could not assist when determining what was the position, on the particular facts of this case, at the time the appellant was stopped at the railway station.

I would, accordingly, answer the questions in the stated case as follows:

1.     no;

2.     no.

Thereafter, I would allow the appeal and quash the conviction.

APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC INFO
Lady Smith Lady Clark Lord Philip	Appeal No: XJ908/13   OPINION OF LADY CLARK OF CALTON   in   APPEAL AGAINST CONVICTION BY STATED CASE   by   BRUCE MALCOLM SMITH   Appellant;   against   PROCURATOR FISCAL, ABERDEEN   Respondent:   _______

 

Appellant: Jones; Geo Mathers, Aberdeen

Respondent: Wade QC, AD - Crown Agent

 

10 April

[23] For the reasons expressed by my Lady in the chair with which I agree, I consider that the appeal should be allowed and the conviction quashed.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 25
Lady Smith Lady Clark Lord Philip	Appeal No: XJ908/13   OPINION OF LORD PHILIP   in   APPEAL AGAINST CONVICTION BY STATED CASE   by   BRUCE MALCOLM SMITH Appellant;   against   PROCURATOR FISCAL, ABERDEEN Respondent: _______

 

Appellant: Jones; Geo Mathers, Aberdeen

Respondent: Wade QC, AD - Crown Agent

 

10 April 2014

 

[24] The appellant was found guilty of a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. Section 47 provides:

"(1) Any person who has with him in any public place any offensive weapon shall be guilty of an offence...

 

(1A) It is a defence for a person charged with an offence under subsection (1) to show that the person had a reasonable excuse or lawful authority for having the weapon with the person in the public place.

....

 

(4) In this section -

 

"offensive weapon" means any article -

 

(a) made or adapted for use for causing injury to a person..."

 

The weapons of which the appellant was found to be in possession were a baton and a knuckle duster. The sheriff records that it was not in dispute that the baton and the knuckle duster were offensive weapons in terms of subsection (4) and he found accordingly. He further found in fact that the appellant was in possession of them in a public place, namely Aberdeen Station.

[25] The facts were that the appellant had purchased the weapons while on holiday in Cyprus and had brought them into the United Kingdom in his luggage via Newcastle Airport. Having spent the night after his return in Newcastle he was returning to his home in Aberdeen when he was detained by the police in Aberdeen Station. The sheriff made no finding as to the purpose for which the appellant was taking the weapons to his home and in particular no finding that he intended to keep them at home as souvenirs.

[26] The question at issue was whether the appellant had a reasonable excuse for having the weapons in his possession in a public place. The sheriff held that the fact that the accused was in the course of a journey home did not provide a reasonable excuse for his possession of the weapons in a public place. He went on to say that to do so would in effect be to grant safe passage through the country for weapons of the kind in question with no legitimate purpose brought in from abroad.

[27] The importation of the types of weapons in question is prohibited by section 141(b) of the Criminal Justice Act 1988 and the Criminal Justice Act 1988 (Offensive Weapons) (Scotland) Order 2005, and equivalent English subsidiary legislation. The importation of the weapons was not detected at Newcastle Airport and accordingly the appellant was not charged under section 141 of the 1988 Act. Nevertheless the fact that the weapons had been imported from a foreign country was part of the whole circumstances to which the sheriff was entitled, and indeed bound, to have regard in determining the question whether the appellant had a reasonable excuse for their possession.

[28] Counsel for the appellant relied on the case of McGuire v Higson 2003 SLT 890. In that case the appellant was charged with having a knife in a public place in contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. Subsection (4) of section 49 provided:

"It shall be a defence for a person charged with an offence under subsection (1) to prove that he had good reason or lawful authority for having the article with him in a public place."

 

[29] The appellant in McGuire was observed in the vicinity of a well-known shop in Argyle Street, Glasgow which sold a wide variety of knives. He approached another person outside the shop and asked him to go into the shop and purchase a knife for him, giving him the money. The person duly purchased a knife and handed it to the appellant outside the shop. The appellant was then detained and found to be in possession of a machete approximately 18 inches long with a heavy, 18 inch long sharp blade wrapped in a polythene bag within a plastic carrier bag. The appellant said he was taking the knife home but gave no other explanation for his possession of it, although he indicated to the police officers in conversation that he was interested in fishing. He was convicted by the sheriff.

[30] The conviction was quashed by this court on the basis that the reason advanced by the appellant for his possession, namely that he was taking the knife home after purchase, constituted a good reason in terms of section 49(4). The court held that to hold otherwise would involve interpreting the legislation in a manner which would render unlawful the purchase of items to which it applied. The purchase of the knife in question was not in itself unlawful.

[31] In my opinion that decision falls to be distinguished. In McGuire the court held, as I understand it, that the appellant's possession of the knife was so closely associated with his act of purchasing it that the possession could not be separated from the lawful act of purchase. In the present case, the appellant's possession of the weapons followed from his importation of them into the United Kingdom from Cyprus. The importation of those weapons was an unlawful act. Accordingly in this case a finding of no reasonable excuse does not involve interpreting the legislation in a way which would render unlawful an act which was otherwise lawful.

[32] The opinion of this court in the case of Lister v Lees 1994 SCCR 548 gives a indication of the approach the court should take in determining whether defences of "reasonable excuse" or "good reason" should be upheld in cases involving the possession of knives or other offensive weapons. In that case the appellant, who was found to have a 9 inch long metal spike with a sharp pointed end in a public place, was convicted of a contravention of section 1 of the Carrying of Knives (Scotland) Act 1993. Section 1(4) of that Act provided for a defence in identical terms to section 49(4) of the Criminal Law (Consolidation) (Scotland) Act 1995. It was argued on his behalf before the sheriff that the evidence that the appellant was using the spike as a tool to open a tin of glue which he had been sniffing constituted a good reason for his having it. The appellant was convicted.

[33] In refusing the appeal Lord Justice-Clerk Ross agreed with the dictum of McGowan LJ in DPP v Gregson, (1993) Cr. App. R 240, to the effect that "good reason" was a quite different expression from "reasonable excuse", but went on to say:

"When considering the expression "reasonable excuse" in section 1 of the Prevention of Crime Act 1953, Lord Justice-Clerk Grant in Grieve v MacLeod at p 36 observed:

 

'[T]hat the only general proposition which can be laid down in regard to "reasonable excuse" is that each individual case must be judged on its own particular facts and circumstances.'

 

Although "good reason" is a different expression from "reasonable excuse", in our opinion the same approach falls to be adopted when the court is considering whether what has been put forward on behalf of an excuse amounts to "good reason". Each case must depend on its own facts and circumstances and, in determining the issue, the court should have regard to the general purpose of the legislation, and where the legislation contains a general prohibition, the court must determine whether the reason advanced appears to constitute a justifiable exception to the general proposition contained in the legislation."

 

[34] Section 47(1) of the 1995 Act under which the appellant was charged contains a general prohibition against having offensive weapons in a public place. For the reason I have set out I am unable to conclude that the circumstances in which the appellant was found to be in possession of the weapons in this case constituted a justifiable exception to that general prohibition. Applying the ordinary meaning of the words "reasonable excuse" I am unable to say that in the circumstance of this case the sheriff erred in finding that none existed.

[35] I would refuse the appeal.