HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HON. LORD CAPLAN
ROBERT GRAHAM McKERNON
Procurator Fiscal, Kilmarnock
9 February 1999
The appellant was charged on summary complaint at Kilmarnock Sheriff Court in the following terms:
"that on 7 July 1997 you, Robert Graham McKernon did have with you in a public place, namely the front garden of the dwellinghouse at 20 Henderson Drive, Saltcoats, articles to which section 40 of the aftermentioned Act applies, namely two knives, contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49(1)".
The appellant pleaded not guilty and after trial on 10 October 1997 the sheriff found him guilty as libelled. At the end of the Crown case the defence solicitor had made a submission that there was no case to answer but this had been rejected. The sheriff sentenced the appellant to a fine of £4,000. The appellant has appealed by way of Stated Case against conviction and sentence.
The factual background to this case may be derived from the findings in fact of the sheriff which are as follows, namely, that, (1) on 7 July 1997 at about 8.55pm police officers arrived at Anderson Drive, Saltcoats in answer to a call that there was a person there armed with a knife. (2) The police officers saw the appellant within the garden of No 20. (3) Police Constable Frew went into the garden and said to the appellant that he suspected him of having a knife. (4) The appellant nodded, took a large knife out of the front waistband of his trousers and handed it to PC Frew who arrested him. The knife was almost 15 inches in length. The blade was sharp and sharply pointed and about 10 inches in length. (5) The appellant was walked out of the garden to the police car where he was asked if he had any other weapon, he said "Aye. Doon the back o' my troosers" and a second knife was removed. It was 13 inches in length, the blade which was sharp and sharply pointed was 8 inches long. (6) When he was put in the rear of the car he was asked why he had the knives. He said "I wasnae going to use them. I was telt my eight year old son had been assaulted and there was boys wi' baseball bats. I just wanted to frighten them back". And when cautioned and charged the appellant said, "I apologise for having them".
The sheriff found that the appellant had the knives with him in the street before he went into the garden at No 20, (that is his finding in fact (8)) and in finding in fact (9) he also found that the appellant had a smaller knife with him in the street outside the garden after he was taken under arrest from the garden to the police car. The sheriff's findings in fact were essentially that the appellant had committed an offence because on two occasions he had had knives in a public street.
Submissions had been made to the sheriff that the garden at No 20 was not a public place and the fiscal did not dispute that fact and indeed the sheriff had accepted the fact in arriving at his own conclusion. However he did determine that it was open to him to conclude that the appellant must have had the knives in the street to bring them to the garden and to convict on that basis. The sheriff states that his reason why he had concluded that the appellant had had the knives in a public place were firstly that his address was in a different street; secondly he had concealed the knives in his person; thirdly, when asked by the police why he had the knives, he said "I wasnae going to use them, I was telt my 8 year old boy had been assaulted and there was boys with baseball bats. I just wanted to frighten them"; fourthly, the appellant on giving evidence stated that on getting a phonecall he had jumped into his car and gone to Anderson Drive. However, it has to be noted first of all that an important element in that list of facts is the statement that the appellant had jumped into his car and gone to Anderson Drive. That evidence was given after the submission that there was no case to answer had been made and rejected. Moreover there was a total absence of any evidence as to the layout of the garden, the possible approaches to the garden, whether or not for example the garden could be approached by a lane and at the rear and, if so, where such a lane began. This led to one of the principal submissions made in favour of the appellant's appeal which was that there was no material in fact from which at the time of the submission it could be said that there was a prima facie case made out by the Crown. We have considered that point and we have decided that there is merit in it. In our view, without a more extensive exploration of the locality of the alleged offence, it would not have been appropriate for the sheriff, at the point when he was dealing with the submission, to decide that the Crown had made out a case that the appellant must have brought these knives to the garden by way of a public street, adjacent to the front garden. This in our view would dispose of the appeal. However, we must mention that an extensive submission in support of the appeal was also made in relation to the competency of a finding that the appellant had the knives in a public street when the terms of the charge were that he had possessed the knives in a particular garden which, as I have indicated, was a private place. However, given the view we have taken of the insufficiency of the evidence in relation to any conclusion that the knives had been brought to the garden by way of a public street we do not think that it is appropriate for us to deal with the extensive submissions that were made to us and we accordingly have reserved our view of them.
In the light of our determination, of course, the question of the appropriateness of the sentence does not arise and what we shall do is we shall answer the first two questions of the Stated Case in the negative and find the third question is not applicable and in these circumstances we shall allow the appeal and quash the conviction.