Scottish High Court of Justiciary Decisons

MARK ROBERT BIRRELL and GORDON WILLIAMSON and PAUL WILLIAMSON and LAWRENCE MILLIGAN v. HER MAJESTY'S ADVOCATE [1999] ScotHC 83 (1st April, 1999)

This is an appeal against conviction by Mark Robert Birrell, Gordon Williamson, Paul Williamson and Lawrence Milligan. They were convicted of a charge to the effect that they did

In the case of Paul Williamson the conviction was aggravated by the fact that he was on bail at the relevant time.

It is important to notice that the conviction was not one of breaking into the school premises with intent to steal, nor one of breaking into the school premises and attempting to steal, but rather one of breaking into the premises and actually stealing a quantity of copper piping. The Sheriff took the view that it would not have been open to the jury, on the charge so framed and in the absence of any amendment by the Crown, to return a verdict of breaking into the school with intent to steal. Before this court the Advocate Depute did not accept this, but submitted that, in any event, the evidence would have been sufficient to allow the jury to convict the appellants of breaking into the school and attempting to steal the copper piping. Counsel for the appellants accepted that submission.

The Sheriff explains in his report to the court in respect of each of the appellants that there was no submission that there was insufficient evidence to convict them of the charge libelled. Although it would not have been possible for the appellants to make a statutory submission of no case to answer, it would have been possible for them, if so advised, to make a common law submission once all the evidence had been led. The appeals are all taken, however, on the basis that there was insufficient evidence to entitle the jury to convict the appellants of the charge as libelled. The Sheriff's reports are extremely brief, but we understand that the evidence in the case, which was entirely circumstantial, can be summarised in the following way.

The school in question had been closed for about two years and the windows and doors were boarded up. There was evidence that the premises had been broken into by smashing a window at the back. The board which had covered the pane of glass had been replaced and a rope had been attached to it so that it could be pulled back into position by someone inside the building. This would conceal the fact that the premises had been entered. The janitor gave evidence to the effect that he had locked and secured the premises on about 10 June and that there had been no damage then. Although the Sheriff does not refer to it, we were informed that there was also evidence from a witness, Douglas Wood, to the effect that he had been in the premises about a week before and had seen no damage. There was evidence that copper piping had been removed at some time before the appellants were found on the premises on 16 June. A building inspector assessed the value of the copper piping and the cost of repairs to the school at £50,000. The Crown led evidence that on the morning of 16 June police officers had taken a dog to the school grounds for training purposes. The dog had found the appellants in a cupboard in the school. The cupboard was adjacent to an area where piping had been stripped from behind the ceiling. In the cupboard were two wrenches, a hacksaw and a packet of blades, all of which would have been suitable for use in removing piping. There was, however, no evidence of the appellants being in possession of any stolen copper piping and indeed there was no evidence that the piping had been recovered.

So far as the individual appellants were concerned, there were certain other adminicles of evidence.

In the case of Mark Birrell, there was evidence that he had keys to a pick-up which was not parked at the school but some distance away in a place where vehicles were not usually parked. In the pick-up was a glove, the matching glove being found outside the school, close to the point of entry. In the pick-up the police found two screw-drivers which were similar to a screw-driver found in the school. There was also evidence that a partial foot print had been found on a piece of roofing or ceiling material on a table below an area where pipes had been removed. The print was similar in size and pattern to the print which would have been made by the trainers which Birrell was wearing. He told the police that the trainers belonged to his brother, but admitted in evidence that he had lied about that. On the other hand, the sheriff tells us that the evidence did not go so far as to show that the trainer had made the footprint.

In the case of Gordon Williamson the only point to be noted is that he admitted lying to the police.

Lawrence Mulligan admitted having a screw-driver and he also admitted lying to the police by denying any knowledge of the pick-up.

Although the appellants gave evidence and gave an explanation as to why they were in the premises, we do not require to examine that evidence since the jury rejected it. The question for us is whether, on the available evidence, the jury were entitled to convict the appellants of the charge as libelled.

As we have explained, it was accepted that the evidence was sufficient to permit the jury to convict the appellants of breaking into the premises and attempting to steal the copper piping. Equally, if the charge had been amended, the jury could undoubtedly have convicted them of breaking into the premises with intent to steal. There was also sufficient evidence to entitle the jury to conclude that someone had stolen copper piping between 10 and 16 June. There was no evidence, however, that the appellants had actually stolen anything on the occasion when they were discovered on the morning of 16 June. Despite this, the jury were in effect directed that they could infer, from the evidence as a whole, that it was the appellants who had stolen the copper piping, at some time or times between 10 June and the occasion when they were discovered on 16 June.

We have decided that it was open to the jury to draw that conclusion on the basis of the evidence. The appellants were discovered in a cupboard which was in the vicinity of an area from which copper piping had been removed over the previous days. In the cupboard, along with the appellants, were two wrenches, a hacksaw and a packet of blades, all of which would have been suitable for use in connexion with the removal of copper piping. Although it was said that there was no evidence that the appellants were aware of the presence of these items, it would have been open to the jury to infer in the circumstances that they were. A footprint, which could have been made by the trainers worn by Birrell, was found on a piece of roofing or ceiling material on a table below an area where piping had been removed from the ceiling. The police found a screw-driver in the school which was similar to two screw-drivers in the pick-up. If the evidence had gone no further, then it might well be that it would not have been open to the jury to infer that the appellants had been involved in the theft of piping over the preceding days. We attach importance, however, to the evidence about the arrangement for replacing the board covering the means of entry. If the jury accepted that evidence, it would entitle them to conclude that the arrangement had been devised to be used not just on a single occasion but for an operation covering more than one occasion. Since the janitor spoke to all being in order on 10 June, the arrangement must have been put in place between 10 June and 16 June. Given that copper piping had been stolen over the same period, the jury would be entitled to infer that those who had stolen the piping had also devised and used the arrangement, to prevent detection. A glove matching the glove in the pick-up, to which Birrell had the keys, was found close to the point of entry. On the morning of 16 June the appellants were inside the school at a time when the board had been pulled up to conceal the entrance. The jury were therefore entitled to conclude that the appellants appreciated the significance of the arrangement for concealing the entry and had made use of it. On that basis the jury would have been entitled to conclude that, when they were discovered on the morning of 16 June, they were on the premises for the latest stage of an operation of stealing copper piping which they had carried out between 10 and 16 June.

We are therefore satisfied that there was sufficient evidence to convict the appellants of the charge as libelled and we reject the relevant ground of appeal advanced for each of the appellants.

On behalf of Lawrence Mulligan Mr. McVicar briefly advanced certain other criticisms of the Sheriff's charge to the jury. He submitted that, although the Sheriff mentioned a number of difficulties with the defence case, he did not draw attention to conflicts in the Crown evidence as to whether tools had been recovered in the pick-up; the Sheriff had said to the jury that the appellant had admitted telling lies to the police, when he had merely admitted telling one lie; the Sheriff had not reminded the jury that the appellant's agent had challenged the suggestion that the appellant was aware of the tools in the cupboard and the Sheriff had not given a sufficiently clear direction to the jury that they should disregard the evidence relating to any of the shoes except those worn by Birrell. We are not impressed by any of these points, whether viewed individually or in combination. In what was a fairly short charge the Sheriff directed the jury in the usual way that the evidence in the case was their province and that anything which he said about it was subject to their correction. He outlined the defence evidence and in particular the evidence of Lawrence Mulligan. He also directed the jury that they should discount the footprint evidence except in the case of Mark Birrell. We consider that the directions given by the Sheriff were adequate and that, in the light of those directions and what was said by the appellant's agent in his address to the jury, they would have understood the relevant issues. We accordingly reject the submission made by Mr. McVicar.

We shall refuse the appeals of all the appellants.