APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE RIGHT HONOURABLE LORD McCLUSKEY
PAUL ALLISON BROWN
THE PROCURATOR FISCAL, STRANRAER
Appellant: Wheatley, Solicitor; Fairbairns
Respondent: Gray A.D.; Crown Agent
26 May 1999
This is an appeal against conviction at the instance of Paul Allison Brown. He was found guilty in the Sheriff Court at Stranraer on a single charge contained in the complaint. That was a charge of contravening section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 by possessing in George Street, Stranraer, an offensive weapon, namely a kitchen knife. He was fined, but there is no appeal against sentence. The sheriff records that at the conclusion of the Crown case the appellant's agent made a submission of no case to answer under section 160 of the 1995 Act. That submission was repelled. The appellant then gave evidence.
In the application for a stated case it is suggested that the sheriff erred in repelling the submission made under section 160 "in that there was insufficient evidence in law to entitled the learned sheriff to make the necessary inference of intention to use the object in the libel for personal injury either by direct or circumstantial evidence". Putting it briefly, the evidence presented by the Crown before that submission was made was to the effect that during the early hours of the morning on Sunday 11 May, two police officers were on patrol in Stranraer town centre. They were intending to stop and search a man, Robert Lamont, who was suspected of being involved in supplying controlled drugs to people in public houses in Stranraer. They decided to detain him for search when they saw him about 1.00 a.m. emerging from a public house, called the Commercial Inn. He was then in the company of the appellant. The officers followed both men to George Street, Stranraer, when both were detained for the purposes of search in terms of the provisions of the Misuse of Drugs Act 1971. They were thereafter conveyed to Stranraer Police Station for the purposes of carrying out the search. The appellant was wearing a black woollen hat on his head; the bottom edge of the hat was folded over in the form of a hem. It appears that the hat was taken off and placed beside the appellant on the bench on which he was seated. One of the officers picked up the hat and became aware there was something concealed in the folded hem. He opened the fold and found a small kitchen knife about 6-8 inches long. The sheriff records that the knife was unsheathed. The appellant was then cautioned and charged with the offence under section 47(1) and stated,
"The knife was given to me by one of my friends as a potato knife as I didn't have one in my flat. It wasn't being carried for any other reason. I would have took it straight home but my friends asked me to go to the pub."
Subsection (4) of section 47 provides, inter alia, that "offensive weapon" includes any article "intended by the person having it with him for use causing injury to the person". In these circumstances, the question before the court at the stage of the section 160 submission was whether or not there was sufficient evidence from which the court could draw the inference that the appellant had it with him for use causing injury to the person. The sheriff's conclusion on that matter is stated in the following terms,
"Knives are frequently used to cause injury to the person. The knife here was not sheathed and was in a place of concealment in the hem of the Appellant's hat from which it could have been instantly withdrawn. The Appellant was seen wearing the hat with the knife in it leaving a public house and in a public street in the early hours of a Sunday morning. Whilst many inferences could be drawn from such circumstances one at least was that the Appellant had the knife with him in such circumstances with the intention to use it to cause injury. That satisfied that test of sufficiency."
Mr Wheatley, who appeared for the appellant today, pointed to the fact that the knife was lying unwrapped, unsheathed, in the hem of the cap. It was not an offensive weapon per se and there could be no offence under the section unless it was shown that it was intended for use to cause injury to the person. He conceded that the knife was being carried in a public place but he submitted that there was simply nothing at all to justify any inference that it was intended for use to cause injury. He conceded that, in the light of the limited attack upon the sheriff's conclusion contained in the application for a stated case, he had to go so far as to say that no reasonable sheriff could have drawn this inference in the circumstances of this case. He drew attention to Orme v Ruckston 1999 G.W.D., Vol. 15, p. 700, where the circumstances were that the appellant was seen waving what looked like the leg of a table at night. He threw it away when he noticed the police. It was held in those circumstances that there was no positive reason given in the findings to infer an intention to use the table leg to cause injury to any person, there being nobody about against whom the wood could have been used.
Each case depends upon its own facts. In our view, it is important to note that the sheriff, in this case, had regard to the fact that the knife itself was unsheathed and unwrapped; it was concealed, and it was concealed in a most unusual place. That concealment was not readily consistent with its just being taken home for use as a potato knife, as the appellant's statement on being charged suggested. The sheriff also had regard to the fact that the appellant had taken it into a public house and emerged into a public street with it concealed in the manner described. We agree with the sheriff that one possible inference that the court was entitled to draw was that the appellant was intending to use it for causing injury to the person. That being so, the submission under section 160 fell to be rejected. Whether or not that inference actually fell to be drawn in all the circumstances was not a question that arose for determination at that stage, nor does it arise in this appeal. We shall therefore answer both questions in the negative.