Scottish High Court of Justiciary Decisons

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Cite as: 2007 GWD 13-264, [2007] ScotHC HCJAC_11, 2007 SCCR 106, 2007 JC 111, [2007] HCJAC 11

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Johnston

[2007] HCJAC 11

Appeal No: XC833/05

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL AGAINST CONVICTION and SENTENCE

USMAN WALI

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Miss A. Ogg, Sol. Adv.; Capital Defence Lawyers, Edinburgh

Alt: K. Stewart, A.D.; Crown Agent

2 February 2007

The background circumstances

[1] On 7 October 2005 at Glasgow Sheriff Court the appellant was found guilty as libelled by a majority verdict on the following charges:

"(1) on 4 February 2005 at Flat 2/R, 47 Melville Street, Glasgow you did have in your possession without the authority of the Defence Council or the Scottish Ministers a prohibited weapon, namely a CS aerosol spray canister, being a weapon designed or adapted for the discharge of any liquid, gas or other thing; CONTRARY to the Firearms Act 1968, section 5(1)(b) as amended by the Transfer of Functions (Prohibited Weapons) Order 1968; you did commit this offence while on bail, having been granted bail on 16 July 2004; 1 September 2004 and 2 November 2004, all at Glasgow Sheriff Court;

(2) on 4 February 2005 at Flat 2/R, 47 Melville Street, Glasgow you did have in your possession a firearm, namely a CS aerosol spray canister, to which Section 1 of the aftermentioned Act applies without holding a firearms certificate in force at the time; CONTRARY to section 1(1)(a) of the Firearms Act 1968 as amended by the Firearms Amendment Act 1988; you did commit this offence while on bail having been granted bail on 16 July 2004; 1 September 2004 and 2 November 2004, all at Glasgow Sheriff Court;

(3) on 4 February 2005 at Flat 2/R, 47 Melville Street, Glasgow you did have in your possession without the authority of the Defence Council or the Scottish Ministers a prohibited weapon, namely a CS aerosol spray canister, being a weapon designed or adapted for the discharge of any liquid, gas or other thing; CONTRARY to the Firearms Act 1968, section 5(1)(b) as amended by the Transfer of Functions (Prohibited Weapons) Order 1968; you did commit this offence while on bail having been granted bail on 16 July 2004; 1 September 2004 and 2 November 2004, all at Glasgow Sheriff Court; and

(4) on 4 February 2005 at Flat 2/R, 47 Melville Street, Glasgow you did have in your possession a firearm, namely a CS aerosol spray canister, to which Section 1 of the aftermentioned Act applies without holding a firearms certificate in force at the time; CONTRARY to section 1(1)(a) of the Firearms Act 1968 as amended by the Firearms Amendment Act 1988; USMAN WALI did commit this offence while on bail, having been granted bail on 16 July 2004; 1 September 2004 and 2 November 2004, all at Glasgow Sheriff Court."

On 28 October 2005, the presiding sheriff, Deirdre M. MacNeill, Q.C., sentenced the appellant to three years detention on each of the foregoing charges, said sentences being ordered to run concurrently and to commence from 7 October 2005.

[2 ] The circumstances of these offences, as described in the sheriff's Report, were as follows. Certain police officers, in particular Detective Sergeant Mason and Detective Constable Kyle, attended Flat 2/R, 47 Melville Street, Glasgow on the date in question, along with other officers in an attempt to execute a warrant in respect of the appellant's brother Ballal Ali. The appellant answered the door. Detective Sergeant Mason testified that he thought that the appellant was Ballal Ali. The police officers were admitted to the flat by the appellant. Thinking that the appellant was indeed Ballal Ali, Detective Sergeant Mason asked the appellant if he had any identification. The appellant told him that he had a bank card in the livingroom. Detective Sergeant Mason asked if anyone else lived in the flat, to which the appellant replied "No just me." They then went into the livingroom where the appellant took a bank card with his name on it from the mantelpiece. The police officer's evidence was that the flat appeared to be unoccupied. There were no ornaments or photographs in it. It was bereft of personal property. In the livingroom a rucksack was lying on the floor next to a chair which was next to the television set. Detective Sergeant Mason asked the appellant if the rucksack was his. The appellant replied "Aye - oh, I don't know." Detective Sergeant Mason testified that the appellant appeared hesitant, which raised his suspicions. He then asked if the appellant had a passport or driving licence in the rucksack. The appellant replied "I don't know what is in the rucksack. Look at it if you want." The police officer opened the rucksack and found within it a number of items including two CS gas canisters, a gas mask, a box of handcuffs, latex gloves and a folding knife which could be used as a saw, items which the officer described in evidence as "an abduction kit". The appellant was asked about the contents of the rucksack by the police officers, but made no comment. He was then detained. The remainder of the flat was then searched for Ballal Ali. The only things within the flat were denim jeans on a bed, put on by the appellant over his boxer shorts to go with the police officers, a partly consumed can of Coke, cigarettes and lighter, both of which were taken by the appellant with him.

[3 ] At the trial, the appellant was led in evidence. He said that he had never seen the rucksack before it was brought to him by the police when they were searching the flat. He denied that it was his. He said that he had been at the flat to clean it. The appellant's brother also gave evidence. He had been at the flat on the previous evening but had left. He had asked his brother to clean the flat for incoming tenants. He said that the previous tenants had left rubbish in the flat, much of which he had tidied up. He had seen the rucksack lying in one of the rooms and had moved it to the hallway and then to the livingroom. He did not look into the rucksack and thought nothing of it.

The grounds of appeal

[4 ] On 7 February 2006 the appellant lodged a Note of Appeal against conviction and sentence. In relation to conviction, the following grounds were stated:

"It is submitted that the learned sheriff mis-interacted (sic) the jury in a response put to the learned sheriff by the foreperson in the jury during the course of their deliberation. The learned sheriff instructed the jury that it was the rucksack and the contents in this case that were vital to the jury's consideration as to whether there was possession of the items contained in the libel. It is submitted that in this case this was the wrong instruction. It is submitted that the learned sheriff was required in the circumstances in this case to instruct the jury that there had to be evidence from which they could infer knowledge of the contents of the rucksack. Those contents being the items referred to in the libel.

This was the case where the appellant faced charges of possession of firearms contrary to section 1(1)(a) of the Firearms Act 1968. The evidence against him was that the rucksack containing these items was found within a room within a flat owned by the accused. This was a flat according to the evidence (sic) but not inhabited by the accused. The evidence was that the accused had been in the property from the preceding night only and had therefore been in the property for a number of hours before the arrival of the police. The rucksack was within a room separate from the belongings of the accused. The rucksack was closed and the contents of the rucksack were not visible without opening the rucksack. There was no forensic evidence linking the accused to the contents of the rucksack. There was no admissions by the accused that he had any knowledge whatsoever of the rucksack itself or indeed its contents. There was no other evidence from the contents of the rucksack that the accused had any link to the rucksack or its contents.

It is submitted that the proper approach had it been taken by the learned sheriff would have been to explain to the jury that they must be satisfied that there was evidence from which they could infer that the accused had knowledge of the contents of the rucksack rather than simply knowledge of the rucksack itself. It is submitted that this is a case very different from a situation where an allegation is made and the accused is guilty of supplying contraband or illegal substances and there is evidence that the accused in fact was aware that he was supplying something. In this particular case there was no evidence whatsoever that the accused had in fact ever had any contact with the rucksack or its contents. The evidence against him was simply that he was in a property, albeit in a different room from the item in question and that he had a connection with the property itself. The jury, after lengthy deliberation, returned with a very clear question namely what was required for possession, was it simply the fact that he stayed in the property or did it require something else. The learned sheriff it is submitted failed to draw the distinction between the rucksack and its contents and given that the jury returned the verdict soon after this direction it may be inferred that they had doubt as to whether the accused had any knowledge of the contents of the rucksack but less doubt about the accused possibly having knowledge of the rucksack itself.

It is submitted that there was no evidence from which an inference could be drawn that the accused had knowledge of the contents of the rucksack and it was therefore crucial that the jury be directed to the effect that the essentials for satisfying the Crown case was establishing that the accused had knowledge of the contents of the rucksack not simply the presence of the rucksack itself."

Submissions for the appellant

[5 ] After explaining the circumstances of the case, Miss Ogg on behalf of the appellant pointed out that the four charges on which the appellant had been convicted involved possession. She then drew our attention to those passages in the sheriff's charge to the jury which dealt with possession. The first of these was at page 10 of the charge where the sheriff had said:

"Well, possession is simply a question in this case, the inference is what you draw from the facts and Mr. (inaudible) is quite correct to say that the essentials of possession are control and knowledge and it is a question for you from the evidence that you have heard whether you believe that the accused in this case had possession of the items referred to."

The body of the charge contained no other guidance on that matter. However, during the course of the deliberations of the jury, further guidance was sought by it. At that stage the following interchange took place:

"THE FOREMAN: We need clarification, my Lady, on possession in terms of the rucksack.

THE COURT: Yes, okay then. Now, possession is a word that features in ... Do sit down. Possession is a word that features in all of the charges so it is critical to all the charges and the verdict that you understand what that means. Just to elaborate on that, you will see that the first charge is within section 5(1)(b). Now, what the Act actually says is a person commits an offence if, without the authority of the Secretary of State or the Scottish Ministers by virtue of a provision made under the Scotland Act 1998, he has in his possession or purchases or acquires or manufactures, sells or transfers (b) any weapon of whatsoever description designed. So that is the possession that is there in charges 1 and 3 and for charges 2 and 4 the wording is subject to any exemption under this Act it is an offence for a person (b) to have in his possession or to purchase or acquire a firearm without a certificate. So that is paraphrasing that. So far as possession is concerned, what I can say to you is this: the term possession in the context of the firearms legislation involves proof of two separate elements, knowledge and control. The Crown does not need to prove that the accused knew that he had a pistol or a firearm or whatever it is. What the Crown does require to prove is that the accused knew that he had some object, whatever it was, and that he has some control over the object to the extent that he had a meaningful say in what was to be done with it. Now, the illustration, if I can give you an illustration, is a case which is called Smith and it is reported in the 1996 Criminal Case Reports. Now, this was a case where the appellant was tried for offences under section 1 of the Firearms Act, and that is one of the charges here, with having in his possession a firearm or ammunition without being the holder of a firearms certificate and what we are told is that in his charge to the jury the sheriff, that is obviously the person in my position, told the jury that the Crown did not need to prove that the appellant knew that what he had was a firearm and that it was enough for them to prove that he knew he had some object in his hand and in fact he had control over it. The appellant was convicted and appealed to the High Court and the High Court approved the sheriff's direction so essentially possession is control and knowledge, not of the firearm necessarily but of the thing. Now, does that clarify your query?

THE FOREMAN: Yes, except, my Lady, could I ask then whether control of the flat in itself and knowledge of the rucksack within the flat constitutes possession?

THE COURT: Well, the item, the matters which we are concerned about, the flat and the ownership of a flat is background information as it were. It is all part of the whole picture but I think what you have to do is concentrate on possession of the item which I think is the rucksack.

THE FOREMAN: Thank you.

THE COURT: And the question is then of control and knowledge of the rucksack and its contents. ... ".

Having quoted these passages, Miss Ogg submitted that they did not provide for the jury adequate directions in relation to the matter of possession. It was obvious from the fact that the jury had sought further directions following their retiral that they were unclear as to what was required in that regard. The problem was that the sheriff had made no distinction between the rucksack and the issue of its contents. In connection with her submission Miss Ogg referred to several authorities, which she contended supported her position. These were Smith v H.M. Advocate 1996 S.C.C.R. 49, at pages 51 to 52, a case which did not involve a container; McKenzie v Skeen 1983 S.L.T. 121, a case concerned with section 5(2) of the Misuse of Drugs Act 1971; and Salmond v H.M. Advocate 1998 S.C.C.R. 740. What emerged from these authorities was that, in order to establish possession of a firearm, or controlled drugs, as the case might be, in the context of a container being involved, it was necessary for the Crown to show that the accused knew that the container in question contained something and that the accused had control over that, and that the contents of the container were in fact the firearm, or the controlled drugs. The difficulty here was that the sheriff had not given directions to the jury concerning the matter of the contents of the rucksack, if any. They should have been told that, for them to find the charges proved they had to be satisfied that the appellant had known that the rucksack contained something and that its contents were in fact the items referred to in the charges. It was plain from the way in which the jury had reacted to the charge that they had been confused, otherwise they would not have sought further directions. In response to the request for further directions, the sheriff had failed to give the appropriate directions. She had indicated that knowledge of and control of the rucksack was enough. That was an erroneous direction.

[6 ] Turning to the issue of sufficiency of evidence, Miss Ogg submitted that there had in fact been insufficient evidence to entitle the jury to convict. She acknowledged that no submission of no case to answer had been made to the sheriff, but that did not matter, as appeared from the case of Farmer v Guild 1991 S.C.C.R. 174. It might be that there had been sufficient evidence that the appellant had been in possession of the rucksack, but there was not sufficient evidence that had been in possession of its contents. His reply to the police indicated ignorance. In all these circumstances, the appeal ought to be allowed.

Submissions of the Crown

[7 ] The Advocate depute submitted that the insuperable obstacle to the success of the appeal was the appellant's statement to the police that the rucksack was his, although he almost immediately sought to retract that admission. That took the case into the category of cases represented by McKenzie v Skeen. Possession of a container would normally infer possession of its contents. The rucksack had been in plain view in the livingroom of the flat, of which the appellant was the owner and occupier. No belongings of another person were found there. The jury had been well entitled to have regard to that admission. Thus there was no substance in the submission of the appellant that there had been insufficient evidence of possession.

[8 ] Turning to the issue of the directions given by the sheriff, the Advocate depute submitted that they were sufficient. At page 19 of the charge, which recorded the interchange between the sheriff and the jury following upon their retiral, the sheriff had referred to "the rucksack and its contents". The Advocate depute relied on what had been said in Smith v H.M. Advocate and McKenzie v Skeen. In all the circumstances, the appeal ought to be refused.

The decision

[9 ] Dealing first with the matter of sufficiency of evidence, that issue plainly remains live albeit that no submission of no case to answer was made during the course of the trial. That is a consequence of what was said in Farmer v Guild, with which we respectfully agree. However, as we see it, there were two sources of evidence which were capable of demonstrating the knowledge and control necessary for possession of the items referred to in the four charges. These items were, of course, found in the rucksack upon its examination by the police. The two sources of evidence were these. First, there was the evidence of the police witnesses as to what happened when they entered the flat. The rucksack was observed to be in the livingroom into which the police had gone in pursuit of evidence of the identification of the appellant. The appellant was asked if the rucksack belonged to him, to which he gave the reply, already quoted, "Aye - oh, I don't know". Plainly the first part of that statement amounts to an admission by the appellant that the rucksack was his. It appears to us to be a reasonable inference from such an admission that the appellant was aware that the rucksack had contents, over which he had control. The other source of evidence which we see as existing here is derived from the background circumstances. The rucksack was found in the flat of which the appellant said he was the sole occupant. We consider that it could properly be inferred from those circumstances that the appellant had knowledge and control of any items that it might have contained. For these reasons, we consider that the appellant's submission that there was insufficient evidence to entitle the jury to convict is without substance.

[10 ] We turn now to the appellant's submission that the jury were misdirected in relation to the matter of possession. Plainly possession was an essential ingredient in both of the crimes charged in the indictment. Prior to the retiral of the jury to consider their verdict the only direction given to them in relation to possession is to be found at page 10 of the transcript of the charge, which we have already quoted. No doubt the direction to the effect that "the essentials of possession are control and knowledge" is correct so far as it goes. However, that direction does not appear to us to deal with a situation in which the items which were alleged to be in the possession of the appellant were in fact within a container of a nature which did not allow its contents to be seen unless it was opened. In Smith v H.M. Advocate at pages 51G to 52B, Lord Morison said this:

"In our opinion the law as laid down in these English cases is one which applies equally in Scotland and accordingly the sheriff was correct in giving the direction which he did during his charge that the Crown does not require to prove that the accused knew that he had a firearm. What the Crown did prove in this case to the jury's satisfaction was that the accused handed to somebody else an object which in fact was a firearm. It is difficult in the circumstances of this case to conceive that he did not know that it was a firearm, but whether or not he knew that to be the case was not something which arose for determination by the jury."

What the sheriff here did not say to the jury was that, before they could hold the charges proved, they required to be satisfied that the appellant knew that the rucksack contained something and that that something was in fact the items referred to in the charges.

[11 ] It is clear from the way in which the jury proceeded following their retiral, that the directions which the sheriff had given to them initially on the issue of possession had left them in a state of uncertainty as regards this aspect of the case. We have already quoted what transpired when the jury made its request for further directions. At page 19 of the transcript of these proceedings, the foreman of the jury asked a penetrating question as to whether control of the flat in itself and knowledge of the rucksack within the flat constituted possession. The reply which the sheriff gave, in our opinion, did not provide the elucidation which the jury ought to have received. All that she said was that the ownership of the flat was background information but that the jury should concentrate on "possession of the item which I think is the rucksack". As an afterthought, the sheriff added "And the question is then of control and knowledge of the rucksack and its contents." We do not consider that what the sheriff said at that stage of the proceedings amounted to adequate guidance to the jury as to the important matter of possession. In our view, she should have told the jury that they had to be satisfied that the appellant had knowledge of the fact that the rucksack contained something and had control of that something. Such a direction would have been in conformity with what was said in Smith v H.M. Advocate. In these circumstances, we are satisfied that adequate directions on the important matter of possession were not given to the jury.

[12 ] The issue now arises of whether, in the circumstances that we have described, a miscarriage of justice has occurred. In our opinion, it has. It is quite plain from the interchange between the jury and the sheriff that the jury were contemplating that control of the flat in itself and knowledge of the existence of the rucksack within it might constitute possession for the purposes of the four charges. It appears to us that nothing which the sheriff subsequently said disabused the jury of that notion. In these circumstances we cannot be satisfied that they addressed the appropriate question in reaching their guilty verdicts. In this situation we shall allow the appeal on this ground and quash the appellant's convictions and the sentences imposed in consequence of them.