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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Johnston
Lord Reed
C.G.B.
Nicholson, CBE, QC,
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[2008HCJAC25]
Appeal No: XJ 63/08
OPINION OF THE COURT
delivered by C.G.B.
NICHOLSON, CBE, QC
in
APPEAL BY STATED CASE
in causa
KATE FRAME
Procurator Fiscal, Aberdeen
Appellant;
against
STUART MITCHELL KENNEDY
Respondent:
_______
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Appellant: McConnachie,
QC, AD; Crown Agent
Respondent: No appearance
25
April 2008
Background
[1] This
is an appeal at the instance of the Crown against the acquittal of the
respondent at Aberdeen Sheriff Court in respect of three charges under section
47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. That acquittal
followed when the sheriff, at the conclusion of the Crown case, upheld a
defence submission of no case to answer.
[2] The
charges against the respondent were that, on 17 March 2007, at Bon Accord Street,
Aberdeen, he did without lawful authority or reasonable excuse have with him in
a public place an offensive weapon, namely, in respect of charge 1, a side
handled baton; in respect of charge 2, a friction lock baton; and, in respect
of charge 3, a spray; all contrary to section 47(1) of the above mentioned Act.
The circumstances giving rise to those charges are somewhat unusual but, as the
sheriff has observed in the Stated Case, the salient facts were not the subject
of dispute. These facts, as spoken to by three police officers who gave
evidence on behalf of the Crown, were as follows.
[3] Shortly
before 9.30 pm on the
date in question, two police officers in plain clothes, PC Fiona Duncan and PC
Amanda Lawson, had been involved in an unrelated inquiry at flats above
licensed premises known as the Paramount Bar in Bon
Accord Street, Aberdeen. In the
course of returning to their vehicle they came across the respondent standing
close to the Paramount Bar. He was wearing the uniform of a police sergeant,
and he appeared to both police officers to be a genuine police officer. They
greeted the respondent informally, and he immediately volunteered that he was
not a real policeman. He explained that he was a male stripper who had been
hired to perform a stripogram at the Paramount Bar that evening. The uniform
worn by the respondent and the equipment carried by him were substantially
identical to that worn and carried by a genuine serving officer. He was wearing
black combat trousers, black shoes and a white shirt. He had black body armour
and was displaying a sergeant's stripes. His uniform carried the serial number
'0069'. He was also wearing a black tie; and a police badge was pinned to his
body armour and to the back of his uniform. He wore a black police hat with the
motto of the Scottish Police thereon - 'semper vigilo'. He wore a utility belt
with attachments. There was a cuff holder and a set of rigid handcuffs. On his
utility belt there were two baton holders each of which carried a baton, namely
a side-handled baton (charge 1) and a friction lock baton (charge 2). In
addition, he had a radio holder and radio with telephone apparatus and a
microphone. On the utility belt there was also a spray holder and a canister
inside (charge 3). The only exception to current Grampian police issue uniform
was that he was wearing a white shirt as opposed to the now standard black
shirt.
[4] Having
volunteered that he was not a genuine police officer, the respondent explained
that he was booked to go into the Paramount Bar to perform a stripogram at 9.30
that evening, which was a few minutes later. He did not wish to be late. He was
asked his name and he provided it. The police officers decided to allow him to
enter the premises. Neither officer was sure what action, if any, to take. PC
Duncan was concerned throughout that he looked exactly like a police officer,
and she had little or no concern initially about any potentially offensive
weapons. However, PC Lawson was more concerned with the items carried in the
respondent's utility belt worn around his waist. Both officers decided to seek
guidance from their supervising officer, the Duty Inspector at Queen
Street, Aberdeen. Following
upon a conversation with that officer they decided that they would speak to the
respondent after he had finished his act. Both officers were of the view that
it was important to ascertain the truth or otherwise of the respondent's stated
purpose of attendance at the premises. They, accordingly, attended within the
Paramount Bar and saw part of his performance. Both officers were satisfied
that what they had been told by the respondent was true and genuine. When the
respondent came out of the premises the officers approached him and invited him
to attend police headquarters, and he agreed to do so. He was not cautioned at
that stage.
[5] At
the police office PC Duncan again sought guidance from the Duty Inspector and
as a result of advice given decided to caution and interview the respondent.
She carried out the interview with PC Lawson acting as corroborating officer
until a point when PC Lawson was called away to other duties whereupon PC Morag
Campbell was called in to corroborate the remaining part of the interview.
[6] The sheriff has set out the relevant parts of the interview
which were referred to in evidence. The first passages which he has quoted
indicate, putting it shortly, that all of the respondent's uniform and
equipment had been genuine police issue which he had acquired for his work as a
professional stripper from various legitimate sources, including through the
internet. He was then asked about the CS holder, and the following questions
and answers have been recorded:
"Q What is in the CS holder?
A A defence dye, it doesn't get used in
the act.
Q Why do you have it?
A In case I was to be assaulted. I had my
jaw broken in an unprovoked attack years ago, 2004. Drunk guys get very jealous
of male strippers. I've never had to use it.
Q How would you use it if you had to?
A If someone assaulted me, I would spray
them in the face with it and try to get away. It's more for self defence to
disorientate someone to get away."
[7] At
the conclusion of the interview the officers took possession of various items
of equipment including the two batons and the spray. Neither of the batons was
a toy. Once again, PC Duncan spoke to a superior officer to obtain guidance,
and she then made further inquiries, including checking the authenticity of the
company that the respondent claimed to work for. After these inquiries were
concluded she was completely satisfied that the respondent was telling the
truth and that the three items referred to in the charges were indeed used by
him in his act as a stripper.
[8] Shortly
thereafter PC Duncan contacted the respondent and asked him to attend the
police office again which he did on a voluntary basis on 22 March 2007. He was
cautioned and interviewed again. In the course of that interview he was asked
how he had travelled to Bon Accord Street on the
date in question. He replied that he had done so by bus. He was then asked
where the police uniform had been when he was travelling, to which he replied
that it was underneath a coat "obviously without the hat". The hat, he said,
was "in the bag". He was then asked whether it was part of his act to be
standing in Bon Accord Street near to
the Paramount Bar at the time when seen by the Police Constables to which he
replied in the negative, saying that "I was standing off the street, in an
alcove just out of sight".
[9] In
cross-examination PC Duncan explained that, during the respondent's performance
in the Paramount Bar, he took off several items of clothing. She said that the
premises were busy, and the audience seemed to enjoy the act; but she did not
see the whole performance. PC Duncan also explained that, throughout the whole
matter, she had been primarily concerned with the question whether the
respondent was committing an offence by dressing as a police officer. She was
little concerned about the question of offensive weapons. PC Lawson, on the
other hand, had been more concerned about the alleged offensive weapons. She
said that she was satisfied that the respondent was a bona fide stripper, but
was concerned about his having offensive weapons with him.
The submission of no case to answer
[10] At the conclusion of the evidence for the Crown the solicitor
for the respondent submitted, under section 160 of the Criminal Procedure (Scotland) Act 1995,
that there was no case to answer. Putting it shortly, he submitted that "there
was no evidence from any source that the [respondent] was in possession of [the
items in question] other than as props in his act". He also submitted that it
had not been established that the batons were per se offensive. In
response, the procurator fiscal depute submitted that those items were capable
of being used for offensive purposes, and suggested that, if they were merely
cosmetic and carried for effect, it was not clear why the respondent required
to use real batons instead of replica toys.
The sheriff's decision
[11] In sustaining the defence submission of no case to answer the
sheriff began, correctly in our view, by rejecting the submission that the
batons referred to in charges 1 and 2, were not offensive weapons per se.
However, he went on to conclude that, in the circumstances of the present case,
there was no evidence even to hint at the suggestion that the respondent had
any intention of causing harm and injury to other persons, and he expressed
himself as being satisfied that the Crown evidence clearly established that the
respondent had the batons for no other purpose than as props in his act. In
that situation the sheriff concluded that the Crown evidence established that
the respondent had reasonable excuse for being in possession of the batons. For
somewhat different reasons the sheriff also upheld the defence submission in
relation to charge 3. It is now unnecessary to examine those reasons since,
before this Court, the advocate depute ultimately abandoned the appeal in
respect of charge 3. In the result we are now concerned solely with charges 1
and 2 (the batons), and with the question whether the sheriff was entitled to
hold, on the basis of the evidence led for the Crown, that on the night in
question the respondent had a reasonable excuse for having those items with him
on Bon Accord Street, Aberdeen. Questions of 'lawful authority' do not, of
course, arise in this case.
The submissions for the Crown at
the appeal hearing
[12] In opening his submissions the advocate depute began by
reminding us that, at the time when this case was disposed of at first
instance, there had been a considerable amount of publicity in the media, some
of which had been critical of the Crown for ever having brought the prosecution
in the first place. He sought to reassure us that considerable thought had been
given to the matter, and that the prosecution was proceeded with only because
the Crown was satisfied that the carrying by the respondent of the items in
question did indeed amount to a contravention of section 47(1) of the 1995 Act.
We, of course, accept without hesitation that the Crown acted in good faith and
after careful consideration. However, it remains our task to determine whether
the Crown or, alternatively, the sheriff at Aberdeen took the
correct view in the particular circumstances of this case.
[13] The advocate depute accepted, as we do, that the sheriff had
been correct to conclude that the batons were offensive weapons per se,
and in that situation he submitted that the sheriff had fallen into error when,
as recorded at page 10 of the Stated Case, he commented that there "is no
evidence at all which even hints at the suggestion that [the respondent] had
any intention of causing harm and injury to other persons". That, it was
submitted, is an irrelevant consideration in respect of weapons which are
offensive per se. In any event, it was further submitted, the
respondent's statements in respect of the spray in the course of his first
interview with the police (see para. [6] above) indicated that he foresaw that
there was at least the possibility of trouble arising in the course of his act.
That, it was submitted, must colour the position in respect of the batons.
[14] The advocate depute then went on to refer to an English case
which at first sight, as he conceded, is against the Crown position in the
present appeal. That is the case of Houghton v. Chief Constable of
Greater Manchester (1987) 84 Cr. App. R. 319. That case was in effect an
action for unlawful arrest, but the arrest in question had been in respect of
an alleged breach of section 1 of the Prevention of Crime Act 1953 which is in
virtually identical terms to section 47 of the 1995 Act. The plaintiff, a
former airport police officer, went to a fancy dress party dressed in a police
constable's uniform and wore, as part of that uniform, a police truncheon. On
his way home from the party he was stopped by two police officers who asked him
if he was a member of the police force. The plaintiff at first replied in the
affirmative, then explained that he was a former police officer. He was
arrested and taken to a police station where he was detained and charged with
carrying an offensive weapon contrary to section 1 of the 1953 Act. After
committal for trial, the prosecution offered no evidence against him and the
plaintiff was acquitted.
[15] Dealing with the matter of reasonable excuse, May L.J. said
this (at p. 323):
"On the
facts as I have outlined them, it is quite clear why [the plaintiff] had it on
him, namely as a theatrical prop to support the verisimilitude of his fancy
dress. [Counsel for the respondent] submits that that is not enough, that that
cannot be said to be a reasonable excuse for carrying an offensive weapon per
se in a public place, particularly at one
o'clock in the morning in the middle of an urban area. In the
course of argument he canvassed the situation of someone who, for instance,
goes to a fancy dress party dressed as an ancient Briton, carrying with him a
club into the head of which nails have been knocked so that, if used, it will
cause substantial damage to the person against whom it is used. Clearly that
would be an offensive weapon per se. But if the facts are merely that a
person, somewhat inadequately clad in a goatskin, is walking along a street
carrying such a weapon as part of his fancy dress, is that a reasonable excuse
for him to have it in his possession? I stress that the only facts which are
proved are that it is being carried as a prop for his fancy dress. The
situation would be different if there was any other evidence, for instance as
to the amount of drink taken, or as to the presence of opposing factions at the
particular party to which the accused had been, or that the weapon had been
used in a threatening way. But where the weapon, offensive per se, is
carried merely as a theatrical property, as part and parcel of a fancy dress
worn by a person going to a fancy dress party, I think that that does
constitute a reasonable excuse for carrying that particular prop. I ask myself
rhetorically, what other reason has he got for carrying that particular article
at that time? The only answer that one can give is that he has it to add, as I
say, verisimilitude to his fancy dress. That, as I think, is a reasonable
excuse in itself. Nevertheless I wish to stress that to wear fancy dress with appropriate
props should not be used as an excuse unlawfully to carry through urban areas
articles which are per se, or can very rapidly be turned into, offensive
weapons. I am dealing with the facts as found in this particular case and which
I have outlined. No others were deposed [sic] to in evidence nor found
by the learned judge. Consequently I have reached the conclusion that the
truncheon was an offensive weapon per se but that the plaintiff had a
reasonable excuse at the time for carrying it."
[16] The advocate depute also referred us to three other cases. The
first of these is McCulloch v. Normand which is briefly reported
at 1994 GWD 8-470 but which is reported in full in Shiels, Offensive Weapons,
at page 81. It was a case in which the appellant had been seen by police
officers wearing a plaid and having round his waist a scabbard from which was
protruding the handle of a sword. It transpired that he was a member of the
White Cockade Society and had, on the previous day, been taking part in a mock battle
which had been filmed by the BBC. He had spent the night with a friend and,
when seen by the police, was on his way home. In refusing his appeal against
conviction this Court held that there was no reasonable excuse for having the
sword when seen by the police since at that time he was "going through the
streets wearing the scabbard with the sword in it round his waist".
[17] The next case referred to by the advocate depute is McKee v.
MacDonald 1995 SCCR 513. That case also involved a baton which, in that
instance, was found by police officers on the back seat of the appellant's car.
It was a very light wooden baton in the shape of a police truncheon, and it
was, apparently, a souvenir which had been brought from Spain. This
Court held that, in the circumstances, it could not be said beyond reasonable
doubt that it was an offensive weapon per se.
[18] Finally, the advocate depute referred us to Lister v. Lees
1994 SCCR 548. That was a case which turned on the interpretation to be given
to the words 'good reason' as used in section 1 of the Carrying of Knives etc.
(Scotland) Act 1993.
The facts of the case are not of significance for present purposes. However,
the advocate depute founded on a passage in the Opinion of the Court, delivered
by the Lord Justice Clerk (Ross) where, at page 553, he said:
"Although
'good reason' is a different expression from 'reasonable excuse', in our
opinion the same approach falls to be adopted when the court is considering
whether what has been put forward on behalf of an accused amounts to 'good
reason'. Each case must depend on its own facts and circumstances and, in
determining the issue, the court should have regard to the general purpose of
the legislation, and where the legislation contains a general prohibition, the
court must determine whether the reason advanced appears to constitute a
justifiable exception to the general prohibition contained in the legislation."
[19] Commenting on the foregoing cases, the advocate depute stated
that he was not suggesting that the decision arrived at by May L.J. in the Houghton
case was wrong. However, he submitted that, in the present case, and unlike the
position as established by the facts in Houghton, there was a potential
for trouble and disturbance. In that connection he referred to the respondent's
answers at interview (see para. [6] above) in relation to the possible use that
might be found for the spray which he was carrying. That, it was submitted,
must colour his possession of the batons so as to remove any possibility of
there being a reasonable excuse for having them. The case of McKee was,
it appeared, referred to simply as an example of circumstances at the opposite
end of the spectrum where, having regard to the nature of the article in
question, it could not even be said that it was an offensive weapon. However,
the advocate depute placed considerable reliance on the passage which is quoted
above in the case of Lister v. Lees. While accepting, as did the
Lord Justice Clerk in that case, that each case will depend on its own facts
and circumstances, he submitted that the general purpose of section 47 of the
1995 Act is to ban the carrying of offensive weapons in public places. That
being so, he submitted, the carrying of articles which are per se
offensive weapons cannot be subject to a "justifiable exception to the general
prohibition" simply on account of the fact that they are being used as props
for a stage performance.
Discussion
[20] We readily accept, of course, that the carrying of offensive
weapons in a public place is a serious matter which, in the public interest, is
perfectly properly prohibited by section 47 of the 1995 Act and its various
predecessors in earlier legislation. However, that prohibition has always been
subject to the proviso that the carrying of such an article will not be
unlawful if it is done with lawful authority or reasonable excuse. That, in our
view, must mean that the legislature has consistently foreseen that there may,
from time to time, be circumstances in which a person in possession of an
offensive weapon may have an excuse for doing so which can properly be regarded
as reasonable. Obviously, as was said by the Lord Justice Clerk in Lister v.
Lees, every case will turn on its own facts and circumstances, but that
in turn must mean that one cannot in advance prescribe the circumstances which
will, or will not, amount to a reasonable excuse. In the course of discussion
during the hearing of the present appeal the advocate depute suggested that
there might be reasonable excuse in circumstances where a concerned and
responsible member of the public had found an offensive weapon in a public
place and was merely taking it as quickly as possible to the nearest police
station for safe keeping. We agree that there may well be a reasonable excuse
in such a case, but that does not mean that a reasonable excuse cannot be found
in circumstances of a wholly different kind.
[21] In the present case the advocate depute appeared to attach
particular significance to the fact that, in the course of his interview with
police officers, the respondent appeared to envisage the possibility of being
attacked in the course of his act. That, he submitted, must colour the
significance to be attached to his possession of the two batons. For several
reasons we have doubts about the validity of this submission.
[22] In the first place, we consider that it sits somewhat oddly
with the advocate depute's criticism of the sheriff for having taken into
account that there is "no evidence at all which even hints at the suggestion
that [the respondent] had any intention of causing harm and injury to other
persons". The advocate depute did not submit that this comment was wrong as a
matter of fact but, as has been noted above, he maintained that it was an
irrelevant consideration. It is not clear to us why the absence of any
possibility of harm being caused to others should be regarded as irrelevant
while at the same time the existence of such a possibility should be prayed in
aid as negativing any contention that there was a reasonable excuse for having
the weapons in question.
[23] In any event, however, the passage in the interview which was
relied on by the advocate depute related to the spray which was the subject of
charge 3; and the answers which were given by the respondent did no more than
to suggest that, were there to be a problem, he might use the spray in order to
disorientate an attacker so as to facilitate an escape. There is nothing in the
answers to suggest that he envisaged using either, or both, of the batons in
such circumstances. Moreover, given the abandonment of the appeal in respect of
charge 3, we consider that we must now approach what was said by the respondent
at the interview on the basis that the spray referred to there was not an
offensive weapon. That, in our view, reduces still further any sinister
inference that might be attached to what was said by the respondent. We should
also add that, on the occasion when the respondent was seen by the police
officers, their evidence indicates that there was absolutely no trouble in the
Paramount Bar while he was performing. Indeed, Police Officer Duncan is
recorded as having said in evidence that the audience seemed to enjoy the act.
Decision
[24] Having given this matter careful consideration, we have come to
the conclusion that we can detect no error in the decision reached by the
sheriff at first instance. Subject only to the fact that the present case
involved the wearing of police uniform and the carrying of batons for the
purposes of a professional stripogram performance in licensed premises, while
the English case of Houghton involved the wearing of similar attire for
the purposes of a fancy dress party, we do not consider that any distinction
can be drawn between the two cases; and, essentially for the same reasons as
those given by May L.J. in Houghton, we consider that the reason for the
respondent having the batons on his person was to add verisimilitude to his
fancy dress, and that this amounted to a reasonable excuse for having them with
him at the time in question. We say "at the time in question" because, in our
view, the present case can be distinguished from the case of McCulloch v.
Normand which has been referred to earlier. In that case the appellant
was seen with a sword at his belt on the day after he had taken part in a mock
battle. Had he been seen by the police on the previous day, when he was just
about to enter the site where the battle was to take place, it is at least
possible that his intended participation in that event would have been seen as
amounting to a reasonable excuse: but that consideration had no continuing
significance by the following day. In the present case, by contrast, the
respondent was seen by the police officers only minutes before he was scheduled
to give his performance. That, in our opinion, is a significant distinction.
[25] Finally, we should mention that, in the course of his
submissions, the advocate depute appeared to suggest that a question such as
that arising in the present case could not properly be determined at the stage
of a submission of no case to answer. That, presumably, was a reflection of the
fact that the words "the proof whereof shall lie on him" appear in section
47(1) in relation to reasonable excuse, and that, in the majority of cases, evidence
to support the existence of such an excuse will normally come in evidence by
the accused or by others called as witnesses on his behalf. At the end of the
day, the advocate depute did not seek to press this point: but, in any event,
we are satisfied that, in the unusual circumstances of this case, there was
enough in the unchallenged evidence led by the Crown to entitle the sheriff,
and indeed ourselves, to conclude that the respondent had a reasonable excuse
for being in possession of the batons in question on the date, and at the
locus, libelled in the complaint.
[26] Accordingly, we shall answer questions 1, 2, 3, 4, 6 and 7 in
the Stated Case in the affirmative, and refuse this appeal. Given the
abandonment of the appeal in respect of charge 3 on the complaint, it is
unnecessary to answer questions 5 and 8.
