Scottish High Court of Justiciary Decisons

GEORGE CONNOLLY LYNN v. PROCURATOR FISCAL, EDINBURGH [1999] ScotHC 148 (8th June, 1999)

This is an appeal by stated case by George Lynn. He appeared in the Sheriff Court at Edinburgh on 7 April 1998 and was convicted of an offence under Section 47(1) of the Criminal Law (Consolidation) Act of 1995. The object in question was a baseball bat. It is common ground that the implement was not an offensive weapon per se and there is no question of adaptation. The question is therefore one of whether the Sheriff was justified in drawing the inference that, on all the facts, this was an offensive weapon with the appropriate statutory intention of use.

The Sheriff sets out a number of facts. The locus of events was around Ryries Bar at Haymarket in Edinburgh. There had been a theft at the bar and the appellant had left with a co-accused. The police came, in connection with the theft. When two police arrived they saw the appellant and his co-accused walking towards the bar and some 50 to 60 feet from the entrance to it. They saw the co-accused throw something away and thereafter they told the appellant that he was going to be searched. There is a finding that the constable had reasonable grounds to suspect that the appellant was in possession of stolen property.

So far as the implement is concerned, when the appellant was searched he was found to have the baseball bat. It was found among clothing in a bin liner which the appellant was carrying. When he was cautioned and asked to account for his possession of the bat the appellant replied that it was a Christmas present. There is a finding that the bat was not new and had seen some use, and that it was not wrapped up as a Christmas present. There is a further finding that he was in the company of two co-accused, both of whom were searched and found to be in the possession of various offensive weapons and it appears that these objects were offensive weapons per se.

The submission is that the Sheriff did not have a sufficient basis on which to find that the appellant had the baseball bat with the intention required by the statute of causing personal injury.

On behalf of the appellant it was acknowledged by Miss Scott that the matter was always one of inference from the circumstances. It was therefore a matter for the Sheriff and the appeal would succeed only if no reasonable Sheriff would have drawn the inference from the facts available. The Sheriff lists a number of facts that were taken into account, these including not merely the fact that this was a baseball bat, but that this was in the bag with clothing and other matters that are found as facts.

We are satisfied that on the material available the inference drawn by the Sheriff was one which was plainly open to him. Much will turn on the particular nature of the implement. A baseball bat has a limited number of likely uses. It is not suggested that baseball was one of these in the circumstances; and it seems to us that it will require only quite limited facts to justify the inference, with such an implement carried not for its primary design purpose. The Sheriff had rejected the explanation given about it being a Christmas present. Considering in particular the fact of the implement being carried in a bin bag among clothing, we are satisfied that the Sheriff was entitled to see the matter as one of concealment. Concealment is a relevant factor and that, with the whole circumstances, justified the inference.

In these circumstances we hold that the Sheriff did not err and that there was sufficient evidence and he was entitled to convict and we will answer the questions accordingly.