Scottish High Court of Justiciary Decisons

DEREK JOHNSTON v. PROCURATOR FISCAL, PAISLEY [1999] ScotHC 111 (12th May, 1999)

This is the appeal of Derek Johnston, who was convicted of a contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The circumstances were that two police officers searched the appellant and found a knife concealed in the waistband of his tracksuit trousers. When cautioned and charged, the appellant replied "I was carrying it for my mate". On that evidence, quite clearly there was a prima facie case against the appellant. What was argued by the defence was that the appellant had good reason for carrying this weapon. The circumstances of that were that as the Sheriff has found, the appellant and a co-accused were in a group of four youths arguing, and during the argument the co-accused pulled out a knife and brandished it. The group then seemed to split up and other people joined it and, at that time, the co-accused again brandished the knife, this time in the direction of a female in the group who was clearly upset by his behaviour. The Sheriff finds, as invited to do by adjustment, that the appellant was clearly seen and heard attempting to calm the situation on both occasions. The appellant himself gave evidence and his evidence was that he had grabbed the knife from his co-accused and was intending to put it in a waste bin. When the police arrived he had no time to dispose of it and thus, when searched, the knife was found. The Sheriff says that the appellant conceded in evidence that had he disposed of the knife by putting it in a waste bin or simply throwing it away, there would be nothing to stop the first accused retrieving the knife and using it again. The appellant indicated that by holding the knife on his person, the co-accused would be prevented from retrieving the weapon. The appellant also disputed the reply attributed to him by the police maintaining that he had stated words to the effect that he had taken it from his mate, but the Sheriff accepted the police evidence on this matter. The Sheriff says that he accepted the Crown evidence as both credible and reliable and "I did not accept the reason given by the appellant for his possession of the knife". Unfortunately, the Sheriff does not go into very much detail as to his reasons for disbelieving the whole account given by the appellant, which would certainly have been helpful from our point of view particularly when the Sheriff has made the finding, as he was invited to do, that the appellant had been acting as peacemaker in a general sense. Mr Shead on the appellant's behalf, argued that the Sheriff has not given sufficient valid reasons for disbelieving the whole of the appellant's account, although Mr Shead accepted that the Sheriff was undoubtedly entitled to prefer the police evidence as to the reply made to them. He maintained however, that because the appellant was quite clearly a peacemaker, that provided a good starting point for his explanation as to why he was in possession of the knife. Mr Shead also maintained that the words "I was carrying it for my mate" could be construed as meaning that the appellant had taken the knife from his mate and should not bear any sinister significance. Furthermore, the Sheriff has not told us what interpretation he chose to put upon this reply and therefore it should not be assumed that the Sheriff took the interpretation that the appellant was carrying it on behalf of his mate rather than having taken it from him.

In our view, this case is not altogether free from difficulty, but that difficulty is largely because the Sheriff has not perhaps given very adequate reasons for coming to the conclusions which he did. Having said that however, what is clear is that the appellant was undoubtedly in possession of the knife and that the knife was situated in the waistband of his trousers when the police arrived. Furthermore, it is accepted that he said "I was carrying it for my mate". It appears to us that the only reasonable interpretation of that reply was that he was carrying it on behalf of the co-accused and this would appear prima facie to be inconsistent with the explanation which he gave, namely that he had disarmed the co-accused and was looking for an opportunity to dispose of the knife which he had been unable to do before the police arrived. It is also perhaps somewhat inconsistent with the view that he was attempting to dispose of the knife that he should put it into the waistband of his trousers. In these circumstances, we are not satisfied that the case has been made out for the view that the Sheriff was bound to hold that the appellant had good reason for the possession of this knife, the onus, of course, being on the appellant to establish that he did have good reason once the Crown had proved that he was in possession of knife. In the circumstances therefore, we are not satisfied that we can allow this appeal and we shall answer the questions in the case in the affirmative and refuse the appeal.

AUD