APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal Nos: 616/99
OPINION OF THE COURT
delivered by LORD COULSFIELD
(1) CHRISTOPHER PAUL DOUGLAS and (2) SEAN ALEXANDER McNULTY
PROCURATOR FISCAL, Edinburgh
Appellants: Bain; John Pryde: Shead; Burnett Christie
Respondent: Menzies, Q.C., A.D.; Crown Agent
6 August 1999
The appellants in these two stated cases were charged together on a complaint which alleged that on 16 May 1997 they had with them in a public place, namely a train travelling between Glasgow and Edinburgh a knife, contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. Evidence was led on 16 October 1998 before the sheriff and the case was then adjourned until, eventually, 6 November 1998 when both appellants were found guilty.
These appeals arise out of a single incident. Because of the way the evidence emerged, they require to be considered separately. There was no suggestion, at any time, from the Crown that the two appellants were acting in concert. However, the essential facts of the incident which gave rise to the charge are the same in each of the cases. At about 5.20 p.m. on Friday 16 May 1997 the 4.30 p.m. train from Glasgow to Edinburgh was approaching Waverley Station and was stopped at a signal. The driver of the train, Calum Wilson, heard a woman's voice in the carriage behind him say "Put that away. That's an offensive weapon". Mr. Wilson opened the door from his compartment into the carriage and, according to his evidence, saw the appellant McNulty sitting in a front seat of the carriage and holding in his hand a knife, identified as Crown production No. 1. This was a folding knife with a 33/4 inch blade and a locking device to hold the blade in position when opened. The knife was open, when Mr. Wilson saw it. Mr. Wilson closed the door to his cab and communicated with his conductor who in turn communicated with the police at Waverley Station. When the train arrived in the station, two police constables were waiting on the platform. Mr. Wilson gave one of them, Constable Smith, an account of what he had seen and pointed out the two appellants, who were on the station platform and were carrying holdalls. Constable Smith approached the appellants, administered a common law caution and informed them that they were suspected of being in possession of knives. The appellant Douglas replied "The knife is in my bag. My mate was waving it about". The two appellants were then taken to the police office in Waverley Station, separated and searched. The knife previously described was found in Douglas's holdall, along with a small knife with a 21/4 inch blade. Constable Smith asked the appellant to explain the smaller knife and he replied "I don't know. Someone must have put it there". Both holdalls contained a number of articles of working clothes. Later, McNulty was interviewed by a police officer, cautioned and shown the larger knife and asked if he had been in possession of it on the train. He replied "Yes, when Chris got his keys out of his bag". Later, in response to a caution and charge, McNulty said "It wasnae mine. I was just holding it while a friend got his keys out".
Both appellants gave evidence. They stated that they were trainee scaffolders and were travelling home together to Edinburgh at the end of the first week of a training course being run in Glasgow by their employers. The sheriff accepted that evidence and there is a finding to that effect in the stated case in Douglas's appeal. The sheriff also finds, in Douglas's appeal, that trainee scaffolders were required to provide their own tools for the purposes of the course, including a knife like the knife in question. That knife, the sheriff finds, had been taken by Douglas to Glasgow together with his other tools at the beginning of the course. At the end of this first week, he had left his tools, apart from the knife, in the locker provided by his employers in Glasgow. The sheriff further finds that Douglas had no good reason to have this knife in his possession on the train returning to Edinburgh.
The sheriff records that Douglas gave evidence as to the need for the knife for his work and also that he had said that he had discovered at the college that trainees had string cut for them, that the knives accordingly were not required and that he had been told that anything not needed for the course should be taken away. He had therefore decided to take them home. Both appellants also gave an account of what had happened on the train. Their account was to the effect that Douglas had been looking for keys, that the knife had fallen out and that it had been picked up by McNulty but that it had never been in the open position. The sheriff disbelieved their evidence on all these matters.
In addition to the evidence of the two appellants, the defence led evidence from a Mr. David Taylor, a contract manager for Scaffolding G.B., the appellants' employers. He confirmed that the appellants had both attended the course, for which lodgings were provided during the week. The appellants would require to return home at weekends. Mr. Taylor said that trainees tended to bring their own tools to the course. These would include a knife because a scaffolder needed a knife for cutting rope and other such tasks. He accepted that the knife in question would make a good scaffolder's knife and was just the sort of knife he would have expected a trainee scaffolder to include in his tools for the course. The sheriff asked him whether he could think of any reason for a trainee scaffolder to take his knife away before the course was ended and Mr. Taylor replied that he could not. On behalf of the appellant Douglas, an adjustment was proposed to include reference to a question asked by the appellant's solicitor. The sheriff, in dealing with it, records that his recollection of the question was "Would it have been reasonable for Mr. Douglas to take the knife home if it were not required on the course", to which question the witness replied "Yes". In declining to include the adjustment, the sheriff says that Mr. Taylor had already stated that a knife, such as Crown label 1, was required and that he therefore refused the adjustment as being irrelevant and confusing.
The gravamen of a charge under section 49(1) of the 1995 Act is having a knife in a public place. There is no doubt, and indeed it was admitted, that Douglas did have the knife in his bag on the train. We would note in passing that the sheriff accepted the evidence of the train driver Wilson as sufficient to establish that the knife had been open in the train compartment: had it been essential to the Crown case to prove that the knife was open, a question might have arisen as to whether there was sufficient evidence before the sheriff to establish that fact. In view of the nature of the charge, however, that question does not arise. The only real issue so far as Douglas is concerned is whether he had established a statutory defence to the charge. As regards McNulty, the position is different and the essential question before us is whether there was sufficient evidence that McNulty ever had the knife at all.
On behalf of Douglas, it was submitted that the only evidence that he had had the knife was when he had it in his bag: there was no evidence that he had ever had it out of the bag. He had taken the knife to Glasgow for his work and had brought it back in the bag. Section 49(5)(a) of the Act recognised that it was a defence for a person to show that he had an item such as a knife for use at work. That must cover a person who was taking a knife home from work as well as a person who was taking a knife to work, and it was a separate defence from that open under section 49(4), because it was not necessary to show a "good reason" for the purposes of section 49(5). Properly understood, Taylor's evidence, in the light of the sheriff's comment on the proposed adjustment, did not contradict the appellant and there was no reason to reject his evidence. The sheriff gave no reason for doing so. For the Crown, it was submitted that the evidence showed that Douglas had the knife. There was a difference between the evidence of Taylor and that of Douglas and the sheriff was entitled to reject Douglas's explanation.
There is a marked difference between section 49(4) and section 49(5)(a) of the 1995 Act, as was pointed out in the argument on behalf of Douglas. Section 49(4) requires the person charged to prove that he had "good reason or lawful authority" for having the article. Subsection 5(a) provides that it is a defence for the person to prove that he had the article with him "for use at work". It seems to us obvious that that must provide a defence to a person who is bringing a knife back from work as well as to one who is taking a knife to work: the essential requirement for the defence is that "use at work" is an explanation for having the knife. Plainly, on the evidence, the knife was part of Douglas's working equipment. He might have left the knife with other tools in Glasgow but it does not, we think, necessarily follow that it ceases to be within the scope of section 49(5) because he chose to bring it back to Edinburgh. We were informed that section 49(5) was referred to before the sheriff but it is not specifically dealt with in the stated case. Taylor's evidence may have justified the sheriff in holding that it was not necessary for Douglas to bring the knife back with him, but that is not the test for the purposes of section 49(5). On the whole facts and circumstances, it does not seem to us that the sheriff was entitled to reject the defence put forward on behalf of Douglas. It is not, therefore, necessary for us to deal with the criticism of the sheriff's reasoning about the evidence of the witness Taylor.
In the case of McNulty, the first submission was that the sheriff was not entitled to make use of McNulty's silence when Douglas made the statement, including the words "My mate was waving it about", as evidence against McNulty. The sheriff says that he was satisfied that that statement had been made and that the appellant was within earshot at the time. He adds that as no one asked the police constable whether there was any response from the appellant to the statement, he was left to infer that there had not been. He went on, however, to say that he did not regard the point as of much significance. The point taken on appeal was that, as is apparent from the findings, Constable Smith had administered a common law caution to both the appellant and his companion immediately before this statement was made. It was therefore submitted that it was not possible to draw any inference from the appellant McNulty's silence in a situation in which he had just been told that he need say nothing. That simple argument appears to us to be unanswerable. It is clear from the passage in Renton & Brown paragraph 24-56, where the effect of the cases on statements in the presence of an accused is summarised, that it is failure on the part of a person in whose presence a statement is made to react to it that provides evidence against him. The existence of a caution seems to us to deprive the failure to respond of any evidential value.
That does not, however, conclude the matter so far as McNulty is concerned. The other evidence against him consisted of the evidence of the train driver, who saw him holding the knife, and the evidence of his own answer to the question put by the police constable as to whether he had been in possession of it on the train. His reply was "Yes, when Chris got his keys out of his bag" and later he repeated a similar statement in slightly different form. That seems to us to be clearly sufficient evidence from which the sheriff was entitled to hold that McNulty did have the knife in his possession on the train for a period, albeit brief. It was argued on McNulty's behalf that the sheriff still had to consider whether he had good reason for having the knife. His explanation had been that he had picked it up when it fell out of Douglas's bag and there was no reason for the sheriff to disbelieve that explanation. What is crucial, however, is that it is for the accused to prove that he had good reason for having the weapon. The sheriff preferred the evidence of the train driver Wilson to the effect that the knife was open in the carriage when he saw it and, on that basis, he was entitled to reject McNulty's explanation, which included his insistence that the knife was closed. In these circumstances, we do not think that any reason has been stated sufficient for holding that the sheriff was not entitled to convict.
The outcome of these two cases may appear odd but that is simply an outcome of the available evidence. The real reason for concern in this case was that it appeared that one or both of the appellants was doing something with the knife in the carriage. If Douglas had merely been taking the knife home and for some reason it had been observed that he had it in his bag, along with his working clothes, but it had never been taken out or unfolded, it is hard to see that there would ever have been a case under this section. There was, however, only limited evidence about what did happen in the carriage and in these circumstances the outcome of these two appeals seems to us to be inevitable.
For these reasons we shall answer question 2 in Douglas's case in the affirmative and quash the conviction: we find it unnecessary to answer question 1. In McNulty's case, we shall answer question 1 in the negative, question 2 in the affirmative, question 3 in the negative and question 4 in the affirmative.