APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HON. LORD SUTHERLAND
CONTINUED STATED CASE
ALAN JAMES GLANCY
PROCURATOR FISCAL, EDINBURGH
Appellant: A. Muir; Wilson McLeod
Respondent: G. Bell, Q.C., A.D., Crown Agent
7 July 1999
This is the appeal of Alan James Glancy, who was convicted of a contravention of Section 27(1) of the Civic Government (Scotland) Act 1982. The terms of the charge were that he was in the curtilage of 24 Main Street, Edinburgh without lawful authority to be there, so that in all the circumstances, it may reasonably be inferred that he intended to commit theft there. The crucial word in this charge, is the last word namely, "there". The circumstances as set out in the Sheriff's report are that a police officer, who was on patrol in a marked police vehicle, drove into Main Street and saw three males at the end of the building line. They glanced at him and ran off immediately. His impression was that they were looking into the gardens of properties there. He then stopped and radioed for assistance, and a dog handler arrived on the scene. The dog made a search, and in the garden of 24 Main Street, the appellant was found hiding. Nothing of note was found in the garden, but a screwdriver was found in the street about ten feet away from where the appellant was found. The constable in evidence said that his impression was that the appellant was hiding from the police.
The Sheriff's reason for holding that the appellant intended to commit theft at the locus was in the following terms:
"I drew an inference that the appellant intended to commit theft. The evidence of the police officers that the appellant was hiding was capable of supporting the inference that he was hiding because he intended to commit theft and not simply or solely that he was hiding from the police. Further the appellant's actions had caused the police officers to check the security of the premises where he was found. Accordingly they did not think his sole reason for being there was to hide from them".
Mr Muir, on the appellant's behalf, submitted that there was insufficient evidence in this case. The evidence pointed unequivocally to the fact that the only reason why the appellant was in the garden of 24 Main Street was because he had seen the marked police car and was endeavouring to conceal himself from the police. Whatever may have been his motive for being in Main Street in the first place was quite irrelevant, because the only question at issue in this case was whether he intended to commit theft at 24 Main Street that being an essential part of the charge. In the absence of any evidence to show that he intended to commit theft specifically at 24 Main Street and that that was the reason why he was in the garden, there could be no conviction.
The Advocate Depute submitted that the Sheriff was entitled to have regard to the earlier circumstances and in particular, the circumstance that the three males appeared to be looking into gardens, no doubt with the intention of finding a suitable place to break into. He referred to Frail v Lees 1997 SCCR 354. In that case, the appellant was found in the garden of a particular house and what was held in that case was that it was legitimate for the court to look at evidence of what he had been doing at other loci namely, looking into cars with the possible intention of breaking in to them. That evidence was something which the court could use in drawing the inference that, in all the circumstances, he was in the particular place with the intention of committing theft at that particular locus. Indeed, it is of perhaps some importance to note that, in the opinion in that case, what was said is that "all the circumstances" includes circumstances which may have taken place some distance away from the locus but which are circumstances from which an inference may properly be drawn that the appellant intended to commit theft at the particular locus in the charge, and we emphasise the words "at the particular locus in the charge". In the present case, in our view, the evidence pointed quite clearly to the fact that the appellant was in the garden of 24 Main Street with the purpose of hiding from the police. The reasons given by the Sheriff, in our view, are inadequate. In the first place, she starts off by saying that she drew the inference that the appellant intended to commit theft,. That may or may not be so. No doubt his presence in Main Street and his actings in Main Street might entitle a sheriff to draw the inference that he was not there for any lawful purpose, but that does not give rise to a proper inference that he intended to commit theft at the particular locus named in the charge. She says that the evidence of the police officers, that the appellant was hiding, was capable of supporting the inference that he was hiding because he intended to commit theft. No doubt in certain circumstances that could well be said, but where the evidence was that he had seen the police car and immediately ran away and hid, in our view that is eloquent of the fact that he was hiding from the police rather than the fact that he, having seen the police, went into the garden of 24 Main Street with the intention of committing theft at that locus. Finally, she says that the fact that the police offices checked the security of the premises where he was found, entitles her to draw some sort of inference. In our view, no inference can be drawn from that at all. Obviously, the police would check the security of the premises but that does not mean in any way that an inference can be drawn that the appellant intended to commit theft at that locus. On the whole matter therefore, we are quite satisfied that the Sheriff was not entitled to draw the inference that the appellant within the curtilage of 24 Main Street was intending to commit theft at that locus, rather he was there for the purpose of hiding from the police. In these circumstances the case was not established beyond reasonable doubt and we shall accordingly answer question 1 in the affirmative and questions 2-4 in the negative.