"30. On 11 July 2002, in Broomhouse Road, Edinburgh, you ...did abduct Stephen Ogilvie ...seize hold of him, compel him to enter motor vehicle registered number L784 TSR and convey him therein against his will to 27/5 Murrayburn Place, Edinburgh ... and place him in a state of fear and alarm for his safety ...

31. On 11 July 2002, at 27/5 Murrayburn Place, Edinburgh, you ... did have in your possession a firearm to which section 1 of the Act aftermentioned applies, namely a rifle, without holding a firearm certificate in force at the time; contrary to the Firearms Act 1968 section 1(1)(a) ...

33. On 11 July 2002, in the carpark of the Hilton Edinburgh Airport Hotel ... whilst being interviewed by ... Lothian and Borders Police, you ... did pretend that your name was James Campbell ... with intent to conceal your true identity ... and did thus attempt to pervert the course of justice."

Application for leave to appeal against conviction

"Charge 31: The appellant was convicted of possession of a firearm (charge 31). At the close of the Crown case, the appellant made a submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 that there was insufficient evidence to support this charge. The firearm was found concealed in a cupboard in a house to which the appellant had access (and in which house he had been the day before the firearm was found), but to which others also had access, and of which the appellant was not the householder. The evidence in support of this charge consisted of a single finger and palm print of the accused on a plastic bag in which the firearm was wrapped. There was no evidence as to the time that the fingerprint was affixed, nor of the location of the bag when it was so affixed. Other fingerprints were found on the bag, although these could not be identified. The bag was a domestic rubbish bag. Accordingly, there was insufficient evidence to permit the jury to infer that the appellant had had knowledge and control of the firearm. The judge erred in repelling the submission."

"The evidence, so far as relevant to this charge, disclosed that at about 5.45 pm on 11 July 2002 police officers attended at 27/5 Murrayburn Place, Edinburgh in connection with the abduction of Stephen Ogilvie. They discovered Ogilvie there along with three of the appellant's co-accused, including Louise Susan Denny, who was the girlfriend of the appellant. Later that evening at about 9.50 pm other police officers went to that address along with the co-accused Louise Susan Denny, who was then in custody in connection with the alleged abduction. She had been identified as the occupier of the flat and prior to leaving the police station in the company of police officers had given her consent to a search of the flat. The flat was thoroughly searched and a number of items were recovered from different parts of it. In the hallway there were three cupboards, one of which stored the water tank. Detective Constable Stephen Rafferty (Crown Witness 112) searched this cupboard. Within the cupboard the water tank was positioned on a plinth. Standing in the hallway and looking into the cupboard Detective Constable Rafferty could only see the plinth and the water tank. However when he stood on the plinth and looked behind the water tank he could see a black bag. He took hold of the bag and pulled it out. When he did so he noted that the black bag was in fact two black polythene bags, commonly used for refuse disposal, which were wrapped round a rifle (label 104). The finding by DC Rafferty of the rifle wrapped in black bags and its concealment behind the water tank were corroborated by DS Alan Goar (Crown Witness 111). The search also revealed various items, including body armour [some contained in a black plastic rubbish bag label 102], stun guns, diamorphine, letters addressed to Gordon Fyfe (Crown Witness number 3) and a receipt in the name of the first accused, McLeave. Fingerprint examination of the plastic bags which had been wrapped round the rifle disclosed a number of unidentified fingerprints but also disclosed the right thumb print and the right fore finger and right palm print of the appellant.

Gordon Fyfe (Crown Witness number 3) testified that he obtained the tenancy of 27/5 Murrayburn Place, Edinburgh from the local authority in November 2000. In October 2001 he met his present girlfriend and went to live with her at that time. He retained the tenancy of his flat at 27/5 Murrayburn Place but he had never resided there since October 2001 although he went there occasionally to collect mail which was delivered there. He allowed others to use his flat including someone called Tony, Craig Wilson and the first accused. Each of them had keys for his flat. He realised that the appellant was living there with the co-accused, Louise Denny, in or about April 2002 when he went there to collect a giro. At the date of the arrest of the appellant and his co-accused on 11 July 2002 Louise Denny told the police that she was the occupier of the flat.

DC Keith McGowan (Crown Witness 110) testified that on 10 July 2002 he was trying to locate Mr Fyfe and went to the address at 27/5 Murrayburn Place, Edinburgh. The door was answered by the appellant who was in a state of undress, suggesting that he had stayed overnight. The appellant was joined by his brother, the third accused.

Apart from the two black bags which were wrapped round the rifle there was evidence that another black bag was recovered containing certain items. There was no other evidence of such bags in use within the house. I dealt with the absence of evidence about other black bags in my charge to the jury at page 9, line 5 to page 10, line 14 in the context of the address to them by senior counsel for the appellant.

From the evidence it appeared to me that the jury could infer that the appellant was living with the householder, Louise Denny and had been living with her at the address where the rifle was found since April 2002. In any event the jury could infer that he stayed overnight at the address as recently as 9/10 July 2002. Having regard to the concealed location of the rifle, the appellant's fingerprints on the bag covering the rifle, the absence of any evidence about the general availability of such bags within the house, the absence of any explanation for the appellant's fingerprints on the bags containing the rifle and the fact that the householder was the appellant's girlfriend with whom he was known to reside, the jury was entitled to conclude that the appellant had the necessary knowledge and control for him to be in possession of the rifle."

Application to the Scottish Criminal Cases Review Commission

"The above named convicted person appeals against conviction on the following grounds:

1. The appellant was convicted of possession of a firearm (charge 31 on the indictment). The learned trial judge erred in rejecting a submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 that there was insufficient evidence to support this charge. The firearm was found concealed behind a water tank in a cupboard in a flat. The appellant was not the householder. There was evidence [that] the appellant had stayed overnight at the said flat the day before the firearm was found. A number of others also had access to the flat, including at least three others who had keys to access it. The appellant's girlfriend at that time, Louise Susan Denny, was identified as the occupier of the flat. The evidence in support of this charge consisted of a single finger and partial palm print of the appellant on a plastic bag in which the firearm was wrapped. There was no evidence as to the time that the finger and partial palm print were affixed. There was no evidence to link the affixing of the prints at the time the firearm was placed in the bag. There was no evidence to establish that the appellant's fingerprints were deposited on the bag at a time when the firearm was in it. There was no evidence as to where the bag was when the prints were affixed. Seven other unidentified impressions were found on the bag. Accordingly, there was insufficient evidence to permit the jury to infer that the appellant had had knowledge and control of the firearm. The learned trial judge erred in repelling the submission of no case to answer.

2. Esto there was sufficient evidence to establish the charge, the learned trial judge erred in directing the jury that senior counsel for the appellant had advanced a "theory" concerning possible affixing of the appellant's prints on the bag (charge to the jury page 9, line 5 to page 10, line 14). The learned trial judge erred by implying to the jury that, as there was no evidence to support the "theory", this was mere speculation. He directed the jury [that] they were not permitted to indulge in speculation. In view of the fact that the item concerned was a domestic rubbish bag, commonly used for refuse disposal, the learned trial judge erred in removing from the jury's consideration any innocent explanation there may have been for the appellant's contact with the bag, as there had been no evidence before the jury of such innocent explanation. It is respectfully submitted [that] not every such innocent explanation requires to be spoken to in evidence. The jury were entitled to have regard to certain legitimate associations between the appellant and the rubbish bag in the absence of other criminative circumstances, even in the absence of direct evidence of such legitimate associations from any witness."

In response, the trial judge prepared a second report, which contained the following passage:

"In his submissions [in terms of section 97 of the Criminal Procedure (Scotland) Act 1995], senior counsel for the appellant referred me to Reilly v HMA 1986 SCCR 417, Slater v Vannet, 1997 JC 226 and MacDonald v HMA 1998 SLT 37. I considered that each case depended upon its particular circumstances. The cases referred to could be distinguished upon their facts. In Reilly the fingerprint was found on the back of false number plates and the Court considered that the nature of false number plates was such that they had been in someone's possession for some time prior to the theft of the vehicle to which the false number plate was subsequently attached. It was not possible in those circumstances to establish whether the fingerprints had been placed on the number plate before or after the theft of the vehicle. In Slater the appellant's fingerprints were found on a bag within a market where there had been a break-in but there was no evidence directed to the bag being associated with the unit at which the break-in had occurred, nor was there evidence as to where the bag had actually been found. In MacDonald the Advocate Depute acknowledged that he could not establish that the appellant's fingerprint had been deposited on the car after it had been stolen. In that regard the case was not dissimilar to Reilly v HMA. By contrast in the present case there was no evidence of other plastic bags within the house apart from the plastic bag containing body armour which was found under the settee. The appellant was living at the house at or about the date of the search. The rifle was concealed behind the water tank. It respectfully seemed to me that in the circumstances of this case the finding of the appellant's fingerprints on the bags containing the rifle called for an explanation.

The second ground of appeal relates to my direction to the jury at page 9, line 5 to page 10, line 14. The passage referred to accurately reflects the absence of evidence of any black bags other than those recovered by the police and introduced into evidence. I have already referred your Lordships to evidence about those bags. In particular there was no evidence that the belongings of the appellant or anyone else was contained in such black bags nor was there any evidence of the existence of a roll or rolls of black bags within the house. In referring to such matters, senior counsel for the appellant acknowledged that he was indulging in speculation. While it is true that the item containing the appellant's fingerprints was a domestic rubbish bag commonly used by some people for refuse disposal, as I have already observed, there was no evidence of such bags within the house apart from the two bags containing the rifle and the one bag containing the body armour. There was no legitimate association between the appellant and the rubbish bags containing the rifle in the circumstances of this case."

The appeal hearing took place on 4 June 2008.

Submissions for the appellant

"... Now, following on from that, ladies and gentlemen, it is also not legitimate for you to base your decision upon theories advanced by counsel unless these theories have some basis in the evidence. For example, there is an example of this, when he was addressing you in respect of charge no.31, Mr Ogg, senior counsel for the second accused, described how Barry Campbell's fingerprints might have been deposited upon one of the black bags covering up the rifle which was recovered on 11^th July from 27/5 Murrayburn Place, Edinburgh. As I understood the theory, it started with the proposition that black bin bags were common and were used by students and others who were dossing, as it was put, in different houses to move their belongings in such bags. The theory also assumed that the bags were torn from a roll of bags and that in tearing a bag from a roll for a legitimate purpose the accused might deposit a finger and palm print on the rest of the roll or the next bag on the roll. Ladies and gentlemen, there is no evidence before you that there were any black bags in 27/5 Murrayburn Place other than those recovered by the police and spoken to in evidence. In particular, there is no evidence of the general availability of black bags within the house, far less a roll of black bags, nor was there any evidence that the second accused at any time ever handled a roll of bags and pulled a bag off. In fairness to Mr Ogg, he prefaced his theoretical comments to you by acknowledging that this was speculation. Ladies and gentlemen, I must advise you that you are not permitted to indulge in speculation. In reaching your verdict you must confine yourself to an assessment of the evidence and to determining what facts you find have been established and that has to be based upon evidence ..."

Submissions for the Crown

1. There was evidence that the co-accused Louise Denny was a de facto occupier of the flat.

2. There was evidence that the appellant had been living with Louise since April 2002.

3. More particularly, there was evidence that on 10 July 2002 (the day before the date on which the rifle was found), the appellant was present in the flat, and answered the door in a state of undress. The inference was that he had stayed in the flat overnight during 9/10 July 2002, a matter he had admitted at police interview. That was a fact upon which the trial depute had relied when answering the submission of no case to answer.

4. The Crown witness Fyfe gave evidence that a number of people had access to the flat, and that some had keys, including Craig Wilson, David McLeave (the first accused), and someone called Tony. It was accepted that the appellant did not have keys.

5. There was evidence that the rifle was found on 11 July 2002, concealed behind a water tank in a cupboard in the hallway. The rifle was wrapped in two refuse bags.

6. There was evidence that the rifle was not visible from the hallway. The Advocate Depute conceded that such evidence was open to a number of interpretations. But it was a circumstance which might tell against the appellant, whose prints had been found on one of the bags wrapping the rifle.

7. On one bag had been found the finger and palm prints of the appellant. It was accepted that a further seven unidentified prints had been found. It was not possible to say whether those were the prints of seven other persons, but what was clear was that the prints were not referable to the appellant or to the co-accused.

8. There was evidence that a third bin-bag was found concealed under the settee in the living-room. The bag contained a number of items, including body armour.

"Charge 31 is the alleged possession of the rifle. Again, ladies and gentlemen, as far as I understand the position, the Crown rely upon the fact that this accused was in control in the sense that he was one of a number of people in the house. There was evidence I think that he had stayed the night before or may have stayed the night before. He was certainly there. So if you accept that he was there then you could conclude that he was one of a number of people from that house who were in control. But the issue really, ladies and gentlemen, as I understand it is one of knowledge because you have not only to have control but also knowledge and you will bear in mind that the rifle was concealed behind the water tank in a cupboard and, as I understand it, the Crown invite you to attribute knowledge to the accused because of the finger and palm impression on the black bag or one of the black bags which was wrapped round the gun. Mr Ogg on the other hand says that the Crown hasn't excluded an innocent explanation for the fingerprint. If you are satisfied beyond reasonable doubt that he was in possession of the rifle, it is agreed that he did not have the requisite certificate and you would convict. On the other hand, if you're not satisfied you would obviously acquit ..."

Thus the judge had expressly reminded the jury that the Crown might not have excluded an innocent explanation for the prints on the bag. The judge had done so at a stage later in his charge than the passage about speculation (quoted in paragraph [9] above). The question of an innocent explanation had therefore been left before the jury. The charge, construed as a whole, could not be said to have led to a miscarriage of justice. The second ground of appeal should be refused.

Discussion

Ground 1

" ... open to more than one interpretation and ... it is precisely the role of the jury to decide which interpretation to adopt ..." (Lord Rodger of Earlsferry in Fox v HM Advocate 1998 S.C.C.R. 115 at page 126F).

It would be for the jury, examining the circumstantial evidence as a whole, to decide what inferences to draw. It would not be necessary that each piece of circumstantial evidence was incriminating in itself, rather that the pieces, when looked at as a whole, gave rise to an inference of guilt such that there was sufficient corroborated evidence of guilt providing a case to answer, even if there was conflicting evidence inconsistent with the accused's guilt (which the jury might choose to reject): cf. Al Megrahi v HM Advocate, paragraphs [31] to [36]. However in our view the evidence in the present case did not reach the stage or attain the level at which a jury would be entitled in law to consider competing interpretations including one of guilt on the part of the appellant of the offence libelled in Charge 31.

"... Much will depend on the nature of the item on which the fingerprint or other identifying link was found and its association in time and place with the crime. The readiness with which the accused may innocently have come to be in contact with such an item may be such that, even in the absence of an explanation from him, no inference of sufficient association between him and the crime can legitimately be drawn."

Further the complainer in Maguire had recognised the robber who discarded the mask as a "local boy", and had given a description of that person. The appellant did in fact live in the neighbourhood, and the complainer's description was consistent with his appearance. The jury were entitled to prefer that evidence to the complainer's evidence in court when he maintained that he could not see any of the robbers in the court-room. Finally there was the evidence relating to the appellant's interview with the police. When shown the woollen sleeve made into a mask, he stated that he did not recognise it and that he had never had contact with it. The jury were entitled to weigh up the appellant's response with all the other circumstances, including the fact that the sleeve was a distinctive multi-coloured one, and that it bore the appellant's DNA on the inner surface, giving rise to an inference that he had come into contact with the inner surface of the sleeve, as one would when, for example, wearing it.

Ground 2

Decision