Scottish High Court of Justiciary Decisons

JAMES McGURK v. PROCURATOR FISCAL, DUMBARTON [1999] ScotHC 135 (28th May, 1999)

This is the appeal of James Arthur McGurk who was convicted on charges of theft and attempting to open a lockfast vehicle. The circumstances as narrated in the stated case were that police constables were on mobile uniform patrol and observed three males behaving suspiciously in the immediate vicinity of two vehicles. The appellant, as subsequently identified, was at the passenger window of the Rover car and was standing facing the door, looking into the car. The police stopped and at this point all three youths ran away. The appellant was chased and eventually was found concealed in bushes. The search for the other two was unsuccessful. When the police examined the vehicles they found that an adjacent vehicle had the front number plate missing. This number plate was found to have been forced between the window glass of the front passenger door and the door frame of the Rover car. The number plate had penetrated the seal between the window and the door frame. When the appellant was asked why he had run away he said he had warrants outstanding. At the end of the Crown case there was a submission of no case to answer which was refused by the sheriff. The appellant and another youth, Wilson, who had been with him, gave evidence which was inconsistent with the evidence given by the police, and the sheriff rejected the appellant's explanation and evidence.

Mr Shead on the appellant's behalf today has submitted that there was insufficient evidence in this case to entitle the sheriff to convict and that he should have upheld the submission of no case to answer. Mr Shead referred to Thompson v Carmichael 1990 SCCR 51 which was a similar type of case to the present. He submitted however that there were additional factors in Thompson, namely that when the accused in that case was seen and ran away he threw away a pair of gloves, and furthermore there was no explanation given as to why he should run away other than that he was guilty of the offence charged. Mr Shead submitted that if the appellant in the present case had not run away there would have been no case to answer and that he gave an explanation immediately to the police as to why he had run away, namely that warrants were outstanding. Mr Shead also submitted that the unusual sight of a number plate sticking out of a window would be something that anybody might stop and look at. Accordingly while there may be some slightly suspicious circumstances attached to this case, there is an explanation for each of them, and the evidence would be insufficient to entitle the sheriff to infer guilt beyond reasonable doubt.

In answer the Advocate Depute pointed out that this offence occurred at 2.30am in an area miles away from the appellant's own home. The evidence from the police was that their attention was attracted by these three youths acting in what was described in a suspicious manner, and as far as the appellant was concerned he was standing at the passenger door facing the car and looking in the window. On seeing the police he ran off. Just taking that evidence alone it was submitted that this was quite enough to entitle the sheriff to hold at the stage of the no case to answer submission that there was sufficient evidence. The appellant then gave evidence in which inter alia he maintains that he was some ten feet away from the car and never standing at the door, and the sheriff gives good reason as to why he disbelieved the appellant and disbelieved the other youth who gave evidence also on the appellant's behalf. Accordingly the sheriff was entitled to convict. As far as the case of Thompson is concerned, the Advocate Depute submitted that the evidence in that case was simply that the accused was standing beside the car in no other suspicious circumstances, and that this was in mid-afternoon when anybody might have been in the vicinity. In the present case, however, the significant fact was that this occurred in the middle of the night in an area miles away from the appellant's own home and that was the significant factor.

The sheriff gives his reasons for saying that he thought there was a case to answer. He points out that there was much more than just mere presence at the locus. He founds on the fact that it was in the early hours of the morning and that the appellant and the other two youths were acting in a manner which raised the suspicions of the police officers. That was of course before the police officers were aware that anything had been done to this Rover car. He points out the appellant was standing at the passenger door, facing the door, looking into it and of course he then ran off. In these circumstances the sheriff took the view that the inference could well be drawn that there was an involvement of the appellant acting with the two others in the perpetration of the crimes libelled.

In our view, while the evidence may be somewhat thin, there was sufficient to entitle the sheriff to come to the conclusion which he did. We take that view for the same reasons as given by the sheriff and for the reasons suggested by the Advocate Depute. If there had been a satisfactory explanation of the appellant's presence at the locus or a satisfactory explanation as to why he ran away, then it might be that the sheriff would have taken a different view but the sheriff did not accept the appellant's evidence.

The only other matter raised by Mr Shead was that in relation to the charge of theft of the number plate from the adjacent car, there was no evidence that the appellant ever had possession of that number plate. However, it is in our view clear that if it can be inferred that he was engaged in using that number plate to break into the lockfast car, then the inference could be drawn that he did have possession of the number plate. It was also submitted that there was insufficient mens rea for theft because the number plate was only to be used as an implement and with no intention of permanently depriving the owner of that property. However when property is appropriated as this number plate was for an illegal use, that would constitute the crime of theft. For these reasons we are entirely satisfied that the sheriff reached the right conclusions and we shall answers questions 1 to 6 in the affirmative.