Scottish High Court of Justiciary Decisons

JAMES ARTHUR MORGAN v. PROCURATOR FISCAL, EDINBURGH [2000] ScotHC 95 (3rd October, 2000)

[1] The appellant James Arthur Morgan stood trial in the Sheriff Court at Edinburgh on a complaint charging that between 1 and 4 August 1998, at a lorry park at South Queensferry, he stole a trailer. The sheriff repelled a submission that there was no case to answer, and thereafter convicted the appellant of theft as libelled. In this appeal by Stated Case, we are asked whether the sheriff was entitled to repel the submission, and whether he was entitled to find the appellant guilty.

[2] The trailer in question was an "Ifor William" flatbed trailer bearing the serial number 176691. The sheriff's finding that it was stolen between the dates specified in the charge, from the place specified in the charge, is not in issue. The submission advanced on behalf of the appellant is that the facts found by the sheriff do not provide a sufficient basis for a finding that the theft was committed by the appellant.

[3] According to the findings in fact, in August 1998 the appellant was a self-employed steel erector, trading under a business name of "J M Construction". The business was based at his home, and he had employees including one John Fox. In the first or second week of August 1998, he became the owner of a Ford Transit van, registration number P663 LSP, the vehicle being purchased by him in his business name. Because the appellant was disqualified from driving at the time, Mr Fox was registered as the registered keeper. The van was used in connection with the business. At some time in August 1998, the appellant approached a Mr Hamilton, who operated a road haulage business with his wife from a large secure yard at Kinglassie. They let parking spaces in the yard to small businesses, and the appellant asked Mr Hamilton for such a space to park a trailer. A space was rented to him, and he placed the trailer 176691 in the yard, some time prior to 4 September 1998. It was used by him or through his employees during the period when it was being parked there. When the trailer was found in the space at the yard on 4 September 1998, it had a vehicle registration plate affixed to it, bearing the number P663 LSP - the number of the appellant's van. There were fingerprints of the appellant on the rear of the registration plate, and the sheriff has held that the appellant handled the plate and fixed it to the trailer or caused it to be fixed to it.

[4] In finding 12, the sheriff goes on to hold that "By fixing or having fixed to the trailer a registration plate bearing the same registration as his transit van, the appellant disguised the true identity of the said trailer." The submissions on behalf of the appellant centred upon this finding, and what the sheriff says in his Note in this connection.

[5] Before turning to the submissions advanced on behalf of the appellant, we should mention finding 13, which deals with a police interview of the appellant, in September 1998. At that interview, the appellant refused to answer whether he had ever had an Ifor William trailer; he said that he did not want to answer whether he ever had any trailer; said "No" when asked whether he had ever used the trailer in question in his business; and said that he did not want to explain why the trailer was in the yard.

[6] Not only is the theft undisputed, but it is now accepted that there was "recent possession" of the trailer by the appellant. The issue came to be whether there was any other "criminative circumstance", which would justify the court in convicting the appellant of theft, in the absence of any explanation indicating the contrary. Having regard to finding 13, it is not suggested that the sheriff would not be entitled to convict, if there was such a criminative circumstance.

[7] On behalf of the appellant it was submitted that there was no such criminative circumstance. The matter which the sheriff had treated as criminative was the fact of the registration plate having been fixed to the trailer, which the sheriff had seen as disguising the true identity of the trailer. In his Note the sheriff says that on a common trailer, which this was, "in much the same way as changing the number plate on a common make of car" this would have the effect of concealing the true identity of the trailer short of an inspection of its serial number. It was accepted that removing a distinguishing number from a vehicle, and perhaps replacing it with a different number, would constitute an attempt to disguise true identity, and would constitute a criminative circumstance. But under reference to the Road Vehicles (Registration and Licensing) Regulations 1971, at Regulation 22, it was submitted that when a trailer was attached to a vehicle, the owner of the vehicle was obliged to ensure that there was displayed on the trailer the registration mark of the vehicle. The presence on the trailer of a plate corresponding to the registration number of the appellant's van was thus mere compliance with the law, if the trailer was to be attached to the van. Leaving the plate on the trailer, at a time when it was not actually attached to the van, carried no criminative implication: one would expect such a plate to be left on a trailer between journeys, if it was used along with a particular vehicle. In fixing the plate to the trailer, and leaving it so fixed, the appellant had done exactly what any innocent person would do, if owning a vehicle and having a trailer which was used with the vehicle. Nothing had been done which could be compared with removing a registration plate from a stolen vehicle and replacing it with a different plate. The serial number had not been deleted or altered. There was quite simply no criminative element or question of "disguise".

[8] On behalf of the Crown, it was suggested that finding 13 could be taken into account, and in particular the appellant's denial that he used the trailer in his business. But neither that apparently false denial, nor the other failures to answer or explain, appears to us to constitute or help to constitute a criminative circumstance: these are matters which would be in point only if there were a criminative circumstance which, taken with proven theft and recent possession, called for an explanation from the accused.

[9] We have come to the view that the sheriff was in error in concluding that the appellant disguised the true identity of the trailer. The comparison with changing a number plate (which involves removal of an existing identification mark) does not appear to us to be valid. The Crown were unable to suggest any way in which the steps taken by the appellant in this respect could be said to differ from the steps which an entirely innocent owner of van and trailer might take.

[10] On the whole matter, we are satisfied that the necessary criminative circumstances was not established. The sheriff should therefore have repelled the submission of no case to answer, and was not entitled to find the appellant guilty. We accordingly answer both questions in the case in the negative.