Scottish High Court of Justiciary Decisons

DAVID SCOTT v. PROCURATOR FISCAL, PAISLEY [1999] ScotHC 65 (12th March, 1999)

This is an appeal by stated case taken by David Scott. On 22 October 1997, the appellant stood trial in the Sheriff Court at Paisley, and was found guilty of a charge in the following terms:

It is not disputed that, in all the circumstances, the sheriff was entitled to hold that it might reasonably be inferred that at the relevant time and place the appellant intended to commit theft there. The appellant was in an alcove situated between High Street, Paisley and the main door leading into the store J.D. Sports. It appears from the findings-in-fact that on either side of the alcove were window display areas for J.D. Sports, and that the goods displayed in these areas were visible from the alcove. There were four youths in the company of the appellant, two of whom were crouched down at the doorway, and when the police came the appellant and the other four youths ran away. Subsequently, a Stanley knife, a knife and a crowbar were found in the alcove.

On behalf of the appellant, it was submitted that in terms of the charge, under section 57(1) of the 1982 Act, the Crown required to prove not only that it might reasonably be inferred that the appellant intended to commit theft when in the alcove, but that he was in the alcove "without lawful authority to be there". That was not disputed. But on behalf of the defence, when making a submission of no case to answer to the sheriff and again in the presentation of this appeal, it was submitted that the Crown had not proved that the appellant had been there "without lawful authority". It appeared from the evidence, and is a finding-in-fact in the stated case, that there is no barrier preventing members of the public walking into the alcove, and there is no notice asking members of the public to refrain from entering the alcove. The contention on behalf of the appellant was and is to the effect that the locus was a place where the appellant had every right to be. It was an entrance to a shop with windows on either side of the alcove displaying goods, inviting the public to view the goods. There was no basis for saying that the appellant was there without lawful authority. The sheriff had not, upon the evidence, been entitled to make the finding that the appellant was there without lawful authority, and had not been entitled to repel the submission of no case to answer. In the circumstances he was not entitled to find the appellant guilty of the charge libelled. The questions in the case should accordingly be answered in the negative.

It was not disputed by the Crown that speaking generally, the locus was a place where members of the public had a right to be, and indeed that the display of goods could be seen as an invitation to the public to go into the alcove. In normal circumstances the appellant as a member of the public would have lawful authority to be in the alcove. The only evidence or facts which could be relied upon by the Crown in order to establish that he was there without lawful authority was the material which went to establish the other crucial element of the charge, namely, that it might reasonably be inferred that the appellant intended to commit theft there. Reading the two requirements together, the sheriff says that as the appellant was found in the alcove with four other persons who were in possession of housebreaking implements, the appellant did not have the authority of the owners to be in the alcove in those circumstances. The Solicitor General submitted that the sheriff was entitled to draw the inference of lack of lawful authority from the same facts as justified the inference that the appellant intended to commit theft there.

There is some attraction in the argument that the owner of heritable subjects, even if permitting the general public to enter upon his premises, would not extend this permission to members of the public whose purpose in entering the subjects was to commit theft there. On the other hand, if there is general authority to enter, but the intention to commit theft is regarded as negating that authority, then lack of lawful authority and intention to commit theft would always go together, where the locus is on private property. On behalf of the appellant, it was submitted that this could not be the intention in relation to section 57(1): there were two separate requirements, and the words "without lawful authority to be there" would effectively be empty surplusage if the intention to commit theft entailed lack of lawful authority.

It does not appear to us that the construction adopted by the Solicitor General renders these crucial words entirely purposeless: so far as public places are concerned, or places where there is a positive right of presence, the Crown could not prove presence without lawful authority by an inference such as is said to be justified in a case such as the present. Nonetheless, it appears to us that the section draws a distinction between the first requirement, of being found in a particular place without lawful authority to be there, and the second requirement of a reasonable inference of intention to commit theft. Not merely are the two matters separately expressed, but in relation to the latter, and not the former, the words "in all the circumstances" are added. This does not appear to us to be a case in which we should attempt any general analysis or definition of the expression "without lawful authority to be there". No general legal argument was presented upon the matter; and it appears to us that there will be a very wide range of differing situations in which it can be argued that there was or was not lawful authority. If a person is found on private premises, where in general the public would have no express or implicit right of presence, lack of lawful authority, even if no barriers have been passed or overcome, may be quite easily inferred. But in a case such as the present, where the locus not merely gives on to a public street, but involves the element of invitation by the display of goods, the generally implied authority must in our opinion be taken as the starting point. In that context, and with the Crown requiring to prove an exception, we are not persuaded that the inference of a lack of lawful authority can properly be drawn, having regard to the terms and structure of the section, from the mere fact that an intention to commit theft can reasonably be inferred.

In the whole circumstances, we are satisfied that the appeal must succeed, and we answer the questions in the negative accordingly.