HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD PROSSER
APPEAL BY STATED CASE
CHRISTOPHER JOHN GILLIES
PROCURATOR FISCAL, GLASGOW
26 January 1999
The appellant Christopher John Gillies appeared before the stipendiary magistrate in Glasgow on 9 July 1997 and was found guilty of an offence under section 57(1) of the Civic Government (Scotland) Act 1982. He was fined £150. The charge against him was that on 17 February 1995 he was found at the rear of Cambuslang Travel Agents at an address in Cambuslang, without lawful authority to be there, so that in all the circumstances it might reasonably be inferred that he intended to commit theft there.
We do not need to go into the factual circumstances in any great detail. There is an area behind the travel agents' premises which is caged in. It is not disputed that the appellant was there. It is not disputed that he had no lawful authority to be there. The question is whether, in all the circumstances, the magistrate was entitled to convict and draw the inference that the appellant was there intending to commit theft there.
The matter arose effectively at two stages. There was a submission at the end of the prosecution evidence that there was insufficient evidence of any intention to commit theft. That having been repelled, the magistrate subsequently convicted. Essentially, the matter turns on whether there was any other explanation for the appellant being where he was. It was not a place he had lawful authority to be. The time was around 1.30am and it appears that he was there for a period of something over ten minutes. He was seen by a passing van man who concluded that he was not there for legitimate purposes, although that witness apparently thought that the appellant was lighting a fire. There was nothing in the other evidence to substantiate that.
The appellant's own account, putting it shortly, was that he had entered the caged area in order to urinate. He had in fact done so, and after doing so he had noticed some old brochures behind the travel agents premises. He went over to look at them and was interested in the pictures which they contained. That is his explanation. It can be seen that it falls into two parts. There is an explanation for going into the caged area (in order to urinate) and there is an explanation for having lingered there for some time (his interest in the brochures).
Plainly, if the magistrate rejected these explanations and was entitled to do so on any sound basis, so that there was no explanation for being there, he would be entitled, in the absence of explanation and having regard to the place and time, to draw the inference of an intention to commit theft.
The problem arises from what the magistrate says on these matters. He mentions that there was no evidence of anyone having urinated recently, but it not clear precisely which area he is speaking of. More significantly, in dealing with the appellant's account of wanting to look at the magazines, the magistrate says that the accused "by his own admission" was looking at travel brochures. This appears to be part of his reasoning in concluding that the appellant was guilty of the intention to commit theft. It is not readily understandable why the word "admission" is used. It was accepted by the advocate depute that there was nothing incriminating in looking at travel brochures. On the other hand, that word also seems to suggest that the magistrate has accepted that the appellant's account is true: he was looking at travel brochures.
If one is going to draw an inference of theft under this section absence of alternative explanations is plainly important. That would be particularly so in a case such as the present where there were no positive indications of intention such as the behaviour of the appellant, damage to the premises, tools or the like. It is not clear here whether the alternative explanation has been rejected. If it has been rejected, it is not clear upon what basis it has been rejected as the magistrate in no way discusses the credibility or reliability of the appellant in these respects. In any event, as we have noted, he seems not to have rejected it, but to have accepted it.
Two questions are raised by the case. The first is whether the magistrate was entitled to repel the submission made in terms of section 160 of the 1995 Act. We would answer that question in the affirmative. At that stage he was entitled to see the criminal inference as one which could be drawn if it were to turn out that there was no competing or acceptable explanation. On the other hand, the second question is whether he was entitled to convict. On that we are not satisfied that having heard the defence evidence he reached any conclusion as to the defence evidence which would justify conviction. We will therefore answer that second question as to whether he was entitled to convict in the negative. The conviction is quashed accordingly.