Appeal No: 746/98
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD PROSSER
PROCURATOR FISCAL, LINLITHGOW
Appellant: Wheatley, Solicitor Advocate, Wheatley & Co
Respondent: Brodie, Q.C, Crown Agent
9 March 1999
This appeal by stated case relates to a conviction at the Sheriff Court at Linlithgow on 16 January 1998 of an offence under Section 47 of the Criminal Law (Consolidation) (Scotland) Act 1995. The provision in question is to the effect that any person who, without lawful authority or reasonable excuse, has with him in any public place an offensive weapon is guilty of an offence. An offensive weapon is defined as meaning any article made or adapted for use for causing injury to the person or intended by the person having it with him for such use by him or by some other person. In this case the object in question was a piece of wood. It was not suggested that it was an article made or adapted for use for causing injury. The crucial issue is therefore whether that object was at the relevant time intended by the accused for such use, that is to say use for causing injury to a person.
The facts are relatively simple. At about 11.25pm on a dark night, but with adequate street lighting, two police officers saw the appellant carrying the large piece of wood and waving it about above his head. The piece of wood is said to have resembled a table leg. It is found that there was a group of young persons in the vicinity, some in the carriageway and some on the road, and it is further found that when the appellant saw the marked police car he ran towards a burn and threw the piece of wood over the parapet.
The appellant gave an account of why he had the piece of wood. This related to retrieving a ball and has understandably been rejected by the sheriff. The question is whether the sheriff was entitled to draw the inference that the appellant had the piece of wood for causing injury to some other person.
On behalf of the Crown it was of course pointed out that this is a matter of inference and was a matter for the sheriff as the fact-finding judge. We do not in any way question that but on behalf of the appellant Mr Wheatley submitted that on the facts found there was no sufficient basis for a rational inference of the necessary intention. The inference must be founded upon the time of night, the fact that it was a large piece of wood, crucially no doubt the fact that the appellant was waving it about above his head and also the fact that he discarded it when he saw the police coming.
It was however submitted that this was not the familiar kind of case where there are other people around against whom a hostile intent might be inferred or directed. This was not in any sense a battlefield or potential battlefield. There was no sign of anyone against whom the object might be used and it was pointed out that the accused might have been waving it above his head simply innocently or showing off or the like. Equally, throwing the piece of wood away when the police cane could not justify an inference of the actual intent, although it might indicate that the potential of the object to be a weapon was recognised by the appellant.
One is of course reluctant to interfere with inferences drawn by a sheriff in complex circumstances but here it appears to us that there is no positive reason to be found in the findings of fact from which the inference can be drawn of the intent required by the statute. In the whole circumstances the appeal will be allowed and the question will be answered in the negative.