APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Hardie Lord Osborne	[2011] HCJAC 124 Appeal No: XC139/11 OPINION OF LORD CLARKE in THE APPEAL AGAINST CONVICTION by MARK ASHTON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McCluskey, Advocate

Respondent: Clancy, Q.C. ad Crown Agent

9 December 2011

[1] On 26 January 2011 at Glasgow Sheriff Court, the appellant was found guilty unanimously and by direction of the court of the following charge:-

"(001) On 13 October 2010 at Queen's Square, Pollokshaws Road, Glasgow you MARK ASHTON did without lawful authority or reasonable excuse have with you in a public place an offensive weapon, namely a broken bottle;

CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, section 47(1);

You MARK ASHTON did commit this offence while on bail, having been granted bail on 26 March 2010 at Glasgow Sheriff Court and on 3 April 2010 at Glasgow City Justice of the Peace Court."

[2] On 21 February 2001, Sheriff Cathcart sentenced the appellant to eight months imprisonment to commence from 14 October 2010. The single ground of appeal against conviction relied upon in the appeal hearing before this court (further grounds of appeal having been previously abandoned), was in the following terms:-

"1. The presiding sheriff erred in law by misdirecting the jury that they must convict the appellant.

(a) the presiding sheriff misdirected the jury that the broken bottle which was the offensive weapon referred to in the indictment was per se an item which had been adapted for causing personal injury. In order for the said broken bottle to be assessed as having been adapted for causing personal injury, it required to be shown that it was broken with the intent of being capable of being used to cause personal injury. In the circumstances of this case it is submitted that it was a matter for the jury to consider whether or not the bottle had been broken for the purpose of being capable of being used to cause personal injury or by some other means."

[3] The circumstances of the case as disclosed by the evidence led at the trial, is summarised in the judge's report to this court in the following terms:-

"The Crown lead evidence from two police constables, Emma McKeown and Lynn Caldwell.

Constable McKeown gave evidence, that at about 22.30 on the date libelled she, along with a colleague attended Queen's Square in Pollokshaws Road, Glasgow. This was a residential area. Pollokshaws Road was the main road and was overlooked by tenement flats. On arrival she saw the appellant on the pavement there. He was alone and in a wheelchair. She asked him if he knew of any reason why the police would want to speak to him. He did not reply but unzipped his jacket and removed from the inside of the jacket a broken beer bottle. She described this as the neck of a Budweiser bottle with jagged edges protruding from it. She took possession of this, cautioned the appellant and questioned him. The questions were as follows:-

Question: Why do you have this broken Budweiser bottle in your possession?

Answer: Because I was gonna hit somebody wae it.

Question: Who?

Answer: I don't know.

Question: Why would you hit someone with this?

Answer: They were annoying me.

Question: Who?

Answer: A guy, hink his name is Gary McPhee.

Question: Who is this male?

Answer: I went tae school wae him.

Question: Where did you get this bottle?

Answer: Don't know. Hink I was drinking it.

Question: Did you smash the bottle to use as a weapon?

Answer: Aye.

Question: There was a report of a male in a wheelchair in possession of a knife. Do you know anything about this?

Answer: No.

The appellant was arrested and taken to Cathcart police office. He was there cautioned and charged and made no reply. She (Constable McKeown) identified the appellant. There was no cross-examination of this witness.

Constable Caldwell gave evidence in identical terms, she was not cross-examined.

The appellant gave evidence that he was in Queen's Square because he had family there. He gave evidence of having had his left leg removed about a year earlier due to drug abuse. On the date libelled he was living in his mother's house in Ayrshire. He explained that after he lost his leg, he received treatment for his drug addiction, but had started to use drugs again. He said that on either 12 or 13 October 2010, that is, the day of or the day before his arrest, he had gone to West Street in Glasgow where there was a drug rehabilitation centre, in the hope of obtaining assistance. He did not obtain assistance there and said that he then went to Govan police office in Glasgow, as he wanted to get arrested. He asked to be arrested but the police told him to go away. He then said he had gone to St Vincent Street where he dialled 999 from a phone box and told the police he had an offensive weapon. He said that two police officers arrived, searched him and then told him to go away. According to him they left the scene. From there he went to Queen's Square where he phoned the police, again telling them that there was a guy in a wheelchair with a knife. He sat and waited for the police who eventually arrived. He accepted that constables McKeown and Caldwell had given truthful evidence about what then took place. He accepted that he had a broken bottle with him. He agreed that he had told the police that he was going to hit someone with it, but this was not true. According to him, the information given to the police was designed to result in his arrest so that he could obtain assistance for his drug addiction.

Cross-examined he accepted that he had not said to either police officer that he wished to be arrested to obtain assistance with his drug addiction. No other evidence was led by the defence".

[4] In his report the Sheriff then advises the court that "having considered the evidence, I regarded the broken bottle as an item which fell into the second category of offensive weapons, namely, one adapted to cause personal injury."

[5] Section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 ("the 1995 Act"), in terms of which the appellant was found guilty, is in the following terms:-

"Any person who has with them in any public place any offensive weapon shall be guilty of an offence, and shall be liable-

(a) On summary conviction, to imprisonment for a term, not exceeding six months or a fine not exceeding the statutory maximum on both;

(b) On conviction on indictment, to imprisonment for a term not exceeding four years or a fine, or both."

Section 47(1A) then provides as follows:-

"It is a defence for a person charged with an offence under subsection (1) to show that the person had a reasonable excuse or lawful authority for having the weapon with the person in the public place."

Section 47(4) is in these terms:-

"In this section -

'Offensive weapon' means any article -

(a) Made or adapted for use for causing injury to a person, or

(b) Intended, by the person having the article, for use for causing injury to a person by -

(i) The person having it, or

(ii) Some other person ..."

[6] The Sheriff, having heard the evidence, took the view that the appellants explanation for having the broken bottle in his possession could not amount to a reasonable excuse within the terms of the statutory provisions. He discussed this matter, outwith the presence of the jury with the Procurator Fiscal and the appellant's representative, and told them that it was his view that, in law, the appellants' explanation, even if believed, could not amount to a reasonable excuse and accordingly that it was his intention to direct the jury to convict. In that situation, the Procurator Fiscal addressed the jury but the appellant's representative, although invited to do so, declined. In his Report to this court at paragraph (13) the Sheriff says:-

"Having considered the evidence, I regarded the broken bottle as an item which fell into the second category of an offensive weapon, namely, one adapted to cause personal injury".

Having also decided, as noted, that the question of lawful authority or reasonable excuse did not arise, he directed the jury to convict, which they proceeded to do.

[7] At pages 3 and 4 of his charge to the jury the Sheriff directed them in the following terms:-

"An offensive weapon is any item made for causing personal injury, or adapted for causing personal injury, or intended by the person who has it with him for causing personal injury. Some weapons, ladies and gentlemen, are clearly made for causing personal injury; things like swords or bayonets. Some weapons have been adapted for causing personal injury; things like broken bottles or a table knife sharpened to a point. With either of these types their intended use is obvious and that is the sort of weapon we are concerned with here: a broken bottle. The Crown does not need to prove that these are weapons of offence. Their design and nature shows that."

Later on, at page 4 of his charge with the jury the Sheriff said this,

"We are dealing here with an item which is adapted for causing personal injury. So you can take it, ladies and gentlemen, the Crown has proved that this broken bottle was an offensive weapon."

[8] The submission made by counsel for the appellant in support of this appeal was shortly stated. The question as to whether, in the circumstances of the case, the broken bottle was an "article made or adapted for use for causing injury to a person" was one of fact which should have been left to the jury to determine. The fact that a bottle was broken did not necessarily mean that it had been either made or adapted for use for causing injury to a person. To assert that, by definition, a broken bottle is such an article would mean for example, that a member of staff in a public bar picking up a broken bottle would be automatically held to be in possession of an offensive weapon for the purposes of section 47 of the 1995 Act. In the English case Alan Williamson (1977) 60 Cr. App. R35, the court of appeal of England and Wales was concerned with Section 1 of the Prevention of Crime Act 1953 which was to the following effect:-

"any person who without lawful authority or reasonable excuse, the proof thereof shall be on him, has with him in any public place any offensive weapon shall be guilty of an offence...(4) in this section... 'offensive weapon' means any article made or adapted for use for causing injury to the person, or intended by the person having it with them for such use by him."

The appellant pleaded not guilty to possessing an offensive weapon, a sheath knife, in a public place contrary to that aforementioned provision. The trial judge ruled that the sheath knife was an offensive weapon per se whereupon the appellant changed his plea to guilty. On appeal it was held that the judges' ruling was incorrect and the conviction fell to be quashed. In giving the judgment of the court, Lane LJ at page 38 said this:-

"It is for the jury to decide whether a weapon held by the defendant was an offensive weapon, bearing in mind the definition in the section which I have just read. Consequently, whether the object in possession of the defendant in any case can properly be described as an offensive weapon is a matter not for the judge but for the jury to decide. The jury must determine whether they feel sure that the object was made or adapted for use in causing injury to the person or was intended by the person having it with them for such use by him."

That case, it was submitted on behalf of the appellant, was directly in point and should be followed and applied in the present case and the conviction quashed. While there was evidence that the appellant had told the police that he had broken the bottle in his possession to hit somebody with it, his own evidence in court was that he had been lying to the police in saying that, and that he had the broken bottle with him to attract the police's attention so that he might be arrested and could obtain assistance with his drug addiction. On this state of the evidence, it was submitted, the matter should have been left to the jury to decide whether, in the circumstances, the broken bottle was an offensive weapon, for the purposes of section 47 of the 1995 Act.

[9] The Advocate depute's response to these submissions was also shortly put. It was submitted by him that if a person is in possession of a broken bottle he is in possession of an offensive weapon for the purposes of section 47 of the 1995 Act. If the person has such an article in a public place he must rely on the defence of reasonable excuse or lawful authority contained in section 47(1A) to avoid committing an offence. Reference was made to Gordon on Criminal Law at para 30. 44(ii) where the following appears:-

"Weapons adapted for use for causing personal injury. This class includes weapons, like broken bottles, razor blades stuck in potatoes, severed pieces of bicycle chain, webbed belts with metal studs placed in them, and domestic or industrial tools or cutlery which have been filed or sharpened for use as weapons. In these cases, too, the Crown need prove only that the accused had with him a weapon of this kind".

That passage in its reference to broken bottles with respect, begs the question raised in the present appeal which is whether the broken bottle in this case, is an article which had been made or adapted for causing injury to a person. The word "adapt" is defined in the Shorter English Dictionary as meaning "to adjust, to make suitable, alter or modify to fit for a new use, new conditions etc." A broken bottle may have become broken by accident or design. If broken by design then the question would be whether it was broken so that it might be used for causing injury. If originally broken by accident by someone, then a case under section 47(4)(b) may possibly arise if there are circumstances, whereby it can be shown that it was intended by the person in possession of it for use for causing injury to a person. But these questions are all questions for the jury. It is true that in the Alan Williamson case Lane LJ at page 38 continued at the passage cited, as follows:-

"That there may perhaps be circumstances in which it is possible to say that there is no evidence to the contrary in a particular case. But that is not the case here. If there is such a case, then in those circumstances the judge might, unobjectionably, direct the jury in those terms, but such cases must be rare."

[10] In the present case there was evidence from the appellant himself, albeit conflicting with what he had said to the police, which raised, on one view of things, the possibility that the article in question did not meet the statutory definition. The short point is that it was not for the judge, however implausible he found the evidence of the appellant to be, (if that was the case), to lay down that as a matter of law a broken bottle must inevitably be regarded as an offensive weapon for the purposes of the statutory provisions. That was a matter of fact for the jury to determine and the judge usurped their function in that respect.

[11] It follows, in my opinion, that there has been a material miscarriage of justice. The appeal against conviction should be allowed and the conviction quashed.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Hardie Lord Osborne	[2011] HCJAC INFO Appeal No: XC139/11 OPINION OF LORD HARDIE in THE APPEAL AGAINST CONVICTION by MARK ASHTON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McCluskey, Advocate

Respondent: Clancy, QC ad Crown Agent

[12] Your Lordship in the chair has helpfully outlined the procedural history, the factual background and the relevant statutory provisions in this case and it is, therefore, unnecessary for me to do so. However, I have reached a different conclusion from your Lordship as to the appropriate disposal of this appeal.

[13] The issue in this appeal is narrow, namely, whether the broken bottle in the possession of the appellant in a public street was obviously a weapon adapted for use for causing personal injury. In that regard your Lordship in the chair has concluded that the answer to the question whether any particular article is an offensive weapon should normally be left to the jury to determine. However, your Lordship also recognises that there will be cases where the answer is obvious and that in such cases it is appropriate for the trial judge to direct the jury to convict an accused unless the accused has relied upon the defence of reasonable excuse or lawful authority for having the weapon (section 47(1A) of the 1995 Act). The question of lawful authority did not arise in this case. Moreover, the sheriff concluded that the explanation given by the appellant in evidence (contrary to what he told the police at the time of his detention), that he had the broken bottle so that he would be arrested and receive assistance for his drug addition, did not amount to a reasonable excuse for his possession of the broken bottle. Although the Note of Appeal contained a ground of appeal challenging the sheriff's decision in that regard, that ground of appeal was abandoned at the procedural hearing prior to the appeal hearing. Accordingly the sheriff's conclusion that the statutory defence was not available to the appellant in this case was unchallenged before this court. For the sake of completeness I wish to record that I agree that the explanation given by the appellant, even if believed by the jury, could not amount to a reasonable excuse for possession of an offensive weapon and that, accordingly, the decision to abandon that particular ground of appeal was correct.

[14] As with any statutory provision it is necessary to consider the language used by Parliament in order to determine what the provision means. Section 47 of the 1995 Act re-enacts and amends the provisions of section 1 of the Prevention of Crime Act 1953 ("the 1953 Act"), the statutory provision which featured in Alan Williamson cited by your Lordship in the chair. The definition of an offensive weapon in section 47(4) categorises offensive weapons into three groups: (i) weapons made for use for causing personal injury; (ii) weapons adapted for such use; and (iii) weapons which are neither so made nor so adapted but which are intended for such use by the person having the weapon or by some other person. The definition in section 1 of the 1953 Act was to the same effect except that in the third category the intended use was restricted to the person having the weapon and was not extended to an intention on the part of the person having the article to its use by a third party. Moreover, the structure of section 47(4) is such that articles in the first two categories are per se offensive weapons whereas articles in the third category depend upon the intention of the person possessing them. This categorisation was acknowledged by Lane LJ in Alan Williamson when he observed at page 38:

"As has been pointed out in numerous cases, [section 1(4) of the 1953 Act] provides three categories of weapons. The first category is the weapon which is made for causing injury to the person. The second type of weapon is one not made for the purpose but adapted for it, such as, ... a potato with a razor blade inserted into it. The third type of weapon is one neither made nor adapted but is one which is intended by the person having it with him for the purpose of causing personal injury to someone. That sort of thing could be any object that one can think of."

The question of intention only arises when one is concerned with articles which are not per se offensive by virtue of having been made or adapted for use for causing personal injury. As with many offences involving intention, the question of intention is clearly a matter for the jury to determine. That did not arise in the present case because the Crown relied upon section 47(4)(a) submitting that the broken bottle was per se an offensive weapon. Whether that question should be left for the determination of the jury will depend upon the particular circumstances of each case. In Alan Williamson, following a discussion between the trial judge and counsel for the appellant and the Crown, the appellant's counsel understood that the judge was of the view that a sheath knife was per se an offensive weapon. Upon returning to court the appellant's counsel explained that his position was that the sheath knife was a category (iii) article and accordingly the Crown had to establish the necessary aggressive intention when the appellant had it in his possession. The judge ruled that the sheath knife "appeared to be" offensive per se, as a result of which the appellant pled guilty. In that situation, it is not difficult to understand why the Court of Appeal considered that the trial judge had erred. There could well be a factual dispute as to the nature and purpose of a sheath knife and any such dispute should be resolved by the jury as judges of fact. In Coull v Guild 1986 SLT 184 the court considered a case in which a sheriff had convicted the appellant of a contravention of section 1 of the 1953 Act for possessing a sheath knife. The opinion of the court discloses that the basis of the conviction was the sheriff's view that the sheath knife was per se an offensive weapon. In allowing the appeal against conviction the court stated at page 185 E-F:

"There is nothing in the findings to suggest that the sheath knife referred to therein was a knife of a type the manufacture of which is prohibited by law. Nor is there any finding that a sheath knife may not be manufactured or used for lawful purposes. Although the sheriff in his note observes that a sheath knife might be of value to a fisherman or a boy scout, there is no finding to that effect. In all the circumstances and in the light of the findings in the case, we do not see how the sheath knife could be said to be per se an offensive weapon. No doubt there are some weapons such as swordsticks, knuckledusters, coshes, bayonets and daggers (as suggested in Gordon) which may be said to be per se offensive weapons; they are made for use for causing injury to the person and all that the prosecution need prove is that an accused had one with him ... there is no finding in the present stated case either that sheath knives in general are made for use for causing injury to the person or that the particular sheath knife was made for such use. In these circumstances the prosecutor would, in our opinion, have had to establish that the sheath knife was adapted for use for causing injury to the person or that it was intended by the accused to be used by him for such purpose."

[15] Apart from distinguishing between articles which are per se offensive weapons and those which depend for their illegality upon the intention of their possessor, the statutory provisions make it clear that a prerequisite of an offensive weapon is the use of an article for causing injury to a person whether the article was made, adapted or intended by its possessor for such use. In this case the undisputed evidence was that the appellant, who was in a public street, removed from inside his zipped jacket the neck of a broken beer bottle with jagged edges protruding from it. As it is now accepted on behalf of the appellant that his explanation in evidence of the reasons for his possession of the broken bottle could not amount to a reasonable excuse for its possession, the appellant's evidence in that regard was only relevant if the sheriff erred in concluding that it was an article within the definition of section 47(4)(a) of the 1995 Act, in which case the issue for the jury would have been the intention of the appellant when he was in possession of the bottle. Thus in determining the narrow issue identified at paragraph [13] there are three distinct questions to be considered. The first is whether the article in possession of the appellant had been adapted from its manufactured state. If so, the second question is whether it had been so adapted for use for any purpose. If so, the third question is whether that purpose was for causing injury to a person.

[16] In considering the first question it seems to me that the most appropriate meanings for "adapted" from those quoted by your Lordship in the chair are "altered" or "modified" having regard to the context in which the word appears in section 47(4). Such a definition would allow for the different circumstances in which a bottle may be broken. The bottle in this case was undoubtedly altered or modified from its manufactured state when it was broken and remained in that altered state when it was in the possession of the appellant. Section 47(4) does not require the Crown to prove who altered the bottle or the circumstances in which it was so altered. In particular there is no requirement to prove that it was the accused who altered the article.

[17] The second question is whether the bottle was adapted for use for any purpose. On one view that might suggest that it was necessary to know the circumstances in which the bottle was broken. That, however, would impose an impossible burden upon the Crown in many cases where an article has been adapted for use; and, as indicated above, the language of the section does not impose such a burden upon the Crown. It is not difficult to understand why Parliament refrained from imposing such a requirement on the Crown. The purpose of the legislation is to prohibit the possession of offensive weapons in a public place, including articles which have been adapted for use to cause personal injury. Sadly the consequences of the possession of such weapons are well known and are equivalent to the scourge of knife crime mentioned by the court in HMA v Boyle 2010 JC 66 at paragraph [16]. The possession in a public street of a broken bottle is, in my view, the type of conduct that Parliament intended to criminalise, irrespective of the intention of the person who has it in his possession to cause personal injury to others. As the court observed in Boyle at paragraph [16]

"We agree that at the present time knife crime is a scourge in the Scottish community and that the court should be acting, and be seen to be acting, in a way which discourages the carrying of sharp weapons, the use of which may lead to needless deaths."

These comments could equally apply to the carrying of broken bottles. Those who are in possession of such articles for an innocent purpose, such as their safe disposal, will have available to them the statutory defence of "reasonable excuse". From the examples cited by Gordon in the passage at para 30.44(ii) quoted by your Lordship at paragraph [8] a bicycle chain may have been severed accidentally or domestic, or industrial tools might have been sharpened for use as implements or tools and at a later stage disposed of before being found by the person who ultimately had them in his possession when arrested. In such cases it would be sufficient for the Crown to prove that the accused was in possession of the article and that it had been adapted at some stage in its life. The original purpose of the adaptation is not, in my view, relevant. What is relevant is whether, at the time the article is in the possession of an accused, it can be said to have been altered for use for any purpose. A bottle may be broken in a variety of circumstances. At one end of the scale it may be broken accidentally and thereafter picked up for the purpose of safe disposal. In such circumstances, although the bottle has undoubtedly been adapted, it has not been adapted for any use. Even if I were wrong in that conclusion, it has certainly not been adapted for use for causing injury to a person. That is the short answer to the submission by counsel for the appellant about his concerns for the member of staff in a public house picking up a broken bottle. Moreover, even if, contrary to my views expressed above, such a bottle were deemed to be an offensive weapon, the member of staff in the public house would have a reasonable excuse for its possession if the intention was to dispose of the broken bottle safely. At the other end of the scale is the case where the bottle is broken by design for use for causing injury. These are both instances where the circumstances in which the bottle was broken can be established. What about cases where a bottle is broken accidentally or in unknown circumstances and thereafter picked up by the accused for no lawful purpose? When it is in the possession of the accused has it been adapted for use by him for any purpose? It seems to me that the answer to that question must be in the affirmative. I respectfully disagree with your Lordship in the chair that such cases are to be determined according to the intention of the accused. As I have already observed the question of intention is only relevant when the article can have an innocent use and is not per se an offensive weapon. As Lane LJ stated, articles in the third category desiderated in section 47(4)(b) of the 1995 Act (formerly section 1(4) of the 1953 Act) could be any object that one can think of. In order to ensure that adequate protection is afforded to the public from persons in possession of offensive weapons, Parliament has extended the definition of such weapons to articles having a legitimate use, if the prosecution can prove that the accused's intention for possessing such an article was its use for causing personal injury. If a broken bottle can have no innocent use, the question of the appellant's intention does not arise.

[18] The remaining question is whether the purpose was for causing personal injury. While this would, in many cases, be a question for the determination of the jury, there is, in my view, only one purpose for which a broken bottle can be used and that is to cause injury to a person. Unlike a sheath knife, which can be used for innocent purposes, the neck of a bottle with jagged edges protruding from it has no legitimate use and is similar to the examples of items made for the purpose of causing personal injury cited in Gordon and quoted by the court in Coull v Guild. In these circumstances I have reached the conclusion that this was an appropriate exceptional case for the sheriff to direct the jury to convict the appellant. I am reinforced in my view by the passage quoted by your Lordship in the chair from Gordon in which the author is clearly of the view that broken bottles are weapons adapted for causing personal injury. Moreover, I note that in Alan Williamson the submissions to the trial judge by counsel, who represented the appellant at his trial and at the subsequent appeal, are recorded at page 37 of the opinion of Lane LJ. In dealing with the second category of offensive weapons counsel submitted that these included "a broken bottle". Finally, in this case it appears from the sheriff's report at paragraph [15] that having reached the view that the reason given in evidence by the appellant for possessing the broken bottle did not "constitute a justifiable exception to the general prohibition contained in the legislation", the sheriff decided to raise the matter with the procurator fiscal and the appellant's solicitor. Thereafter the solicitor "confirmed that the appellant's defence was one of reasonable excuse". Unlike defence counsel at the trial of Alan Williamson, the appellant's solicitor made no attempt to suggest that the broken bottle was not per se an offensive weapon. Having been advised that the sheriff considered that the explanation given by the appellant could not amount to reasonable excuse and for that reason the sheriff intended to direct the jury to convict the appellant, the appellant's solicitor did not seek to persuade the sheriff or the jury that the broken bottle was not per se an offensive weapon. As noted by your Lordship at paragraph [6] the solicitor elected not to address the jury. The circumstances of this case differ from Alan Williamson where the basis of the defence was that the article was not per se an offensive weapon. The conduct of the appellant's defence at his trial is indicative of an acceptance that the broken bottle was indeed adapted for use for causing personal injury.

[19] For the foregoing reasons I would refuse this appeal against conviction.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Hardie Lord Osborne	[2011] HCJAC 124 Appeal No: HC139/11 OPINION OF LORD OSBORNE in THE APPEAL AGAINST CONVICTION by MARK ASHTON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McCluskey, Advocate

Respondent: Clancy, Q.C. ad Crown Agent

9 December 2011

[20] I agree with the Opinion of your Lordship in the Chair. There is nothing that I can usefully add.