Appellant: Shead; John Pryde & Co, Edinburgh

Respondent: P Ferguson QC AD; Crown Agent

6 October 2011

[1] On 7 April 2010 the appellant was convicted after trial in the High Court of Justiciary sitting in Perth of three charges of contravening the Firearms Act 1968, as amended. The first charge alleged a contravention of section 1(1)(a) of that Act, namely possession of a self-loading pistol firearm without holding a firearms certificate. The second charge on the indictment proceeded under the provisions of section 5(1)(aba) of the Act and libelled possession, without the authority of the Secretary of State or Scottish Ministers, of a prohibited weapon, namely a self loading pistol. The third charge alleged a contravention of section 1(1)(b) of the Act in the respect that the appellant had possession of ammunition, namely five centrefire cartridges, without holding a relevant firearm certificate.

[2] The three offences all took place on the same date, namely 24 August 2008, and charges one and two related to the same weapon. The locations at which the offences took place were also the same in each of the charges and those locations may be summarised as locations in Edinburgh and in Liverpool and roads between the two cities respectively
[1]. A large part of the prosecution evidence consisted of evidence from police officers of a surveillance exercise in which the appellant was observed to drive in a Jaguar motor car accompanied by one passenger, namely Leigh Janet Russell, his partner, from Edinburgh to the locations in the Liverpool area and then return to Edinburgh, the vehicle being halted by the police at Hillend, where it was searched. The firearm and the ammunition were found in a white coloured plastic bag in the boot of the Jaguar car concealed beneath what was described as being the battery shelf of a compartment to which access is obtained via the boot of the car.

[3] The first ground of appeal against conviction as set out in the note of appeal lodged by the appellant is in these terms:

"It is submitted that the learned trial judge erred in repelling a submission of no case to answer. Properly understood there was insufficient to establish that the appellant was in possession of the firearm and ammunition standing the fact that the items recovered were found concealed in the boot of a car driven by the appellant. In particular there was insufficient evidence from which to draw the inference that the appellant had the requisite knowledge".

In his decision of 10 August 2010 the first sift judge granted leave to appeal in respect of that ground of appeal; he also granted leave to appeal against sentence. He refused leave respecting the second and third grounds of appeal against conviction contained in the note of appeal which read thus:

"2. (a) In connection with the allegations against him, the appellant was detained and interviewed by the police. It is understood that he did not have the opportunity to consult with a solicitor before being interviewed, nor was a solicitor present during that interview. Evidence of that interview was led at the trial. It was relied on by the advocate depute in seeking a conviction. Reference is made to page 18 of the charge to the jury. In leading that evidence and seeking conviction, the Lord Advocate was acting incompatibly with the appellant's Convention rights including Article 6(3)(c) & 6(1). Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.

(b) In any event reliance on that evidence by the Crown deprived the appellant of the fair trial to which he was entitled under Article 6(1) and at common law.

3. Separatim. The trial judge ought to have directed the jury to disregard the evidence insofar as it was relied on by the Crown (or was available) for conviction. Reference is made to the preceding paragraphs.

In the circumstances it is submitted that the Sheriff misdirected the jury at page 17 of the charge".

As may readily be seen, grounds 2 and 3 involve what may be described in professional parlance as a "Cadder point". The decision of the first sift judge to refuse leave in respect of those grounds preceded the decision of the Supreme Court of the United Kingdom of 26 October 2010 in Cadder v HM Advocate [2010] UKSC 43; 2011 SC (UKSC) 13. Similarly, an application made on the appellant's behalf under section 107(9A) of the Criminal Procedure (Scotland) Act 1995 for an extension of time within which to lodge an application under section 107(8) of the 1995 Act respecting the refusal of leave which came before and was refused by a single judge on 27 September 2010 preceded that decision of the Supreme Court of the United Kingdom.

[4] Following delivery by the Supreme Court of its judgment in Cadder v HM Advocate, the appellant lodged on 1 February 2011 a further application for extension of time within which to make application under section 107(8) of the 1995 Act to argue the second and third grounds of appeal. This was also placed before a single judge in chambers and refused by him.

[5] When the case came before us for a hearing, counsel for the appellant moved us, as a triumvirate bench, to allow argument on the grounds of appeal in respect of which leave had been refused by the first sift judge. In summary, counsel pointed to the fact that the initial refusal of leave, and the refusal of the first application for extension of time, preceded the Supreme Court decision in Cadder v HM Advocate and were thus a reflexion of the law as it then stood; the second, single judge, decision was reached in advance of the decision of this court in Jude v HM Advocate [2011] HCJAC 46; 2011 SLT 722; 2011 SCCR 300; and counsel submitted that the grounds of appeal in question were, in certain respects, linked with the first ground of appeal.

[6] In opposing the application, made out of time, for leave to argue the second and third grounds of appeal, the submission advanced by the Advocate depute was, in its essence, that those grounds failed to meet the test of arguability since the circumstances of the present case were such that exclusion of the terms of the statements made by the appellant to the police, of which evidence was led before the jury, could not have led to a different result, favourable to the appellant. The Advocate depute did not suggest that the Crown would be in any practical respect prejudiced were the appellant to be granted leave to argue the two grounds in issue other than that, were the grounds otherwise to find favour with the Court, the Crown would wish to advance a plea of waiver. The issue of waiver was pending in the Crown appeals to the Supreme Court in Jude v H M Advocate and related cases.

[7] Having considered matters, we came to the view that, given the developing state of the law since the decision of the first sift judge, culminating in the recent decision in Jude v HM Advocate, it could be said that cause existed for allowing the grounds to be heard. It was also to be noted - apart from waiver - that the basis of the Crown's opposition was, in effect, that in the particular circumstances of this case the argument flowing from the Cadder point was essentially irrelevant. In these circumstances we concluded that it was expedient, and in accordance with justice, at least to allow the point to be ventilated more fully. We accordingly granted leave also to argue the grounds in question, reserving, if need be, to the Crown leave to argue waiver in the event of its appeals to the UK Supreme Court being successful.

[8] It is convenient now to summarise the evidence led by the prosecutor, so far as pertinent to the grounds of appeal. As already indicated, a number of police officers gave evidence of the surveillance exercise in which the appellant was observed to drive the Jaguar car from Edinburgh south to the Liverpool area, with Ms Russell as the only passenger, and to return to Edinburgh where the vehicle was stopped and searched, the results of the search including the finding of the white coloured plastic bag containing the firearm and the ammunition under the battery shelf. In addition, there was important evidence from a police officer, Detective Constable Harrison, of her observations of the appellant and the car while the car was parked within the car park of a large retail park in the Liverpool area, namely the Aintree Racecourse Retail Park. She deponed that she saw the appellant, who had got out of the car, open the nearside rear passenger door of the car and take a white plastic bag from within the back of the car saloon. The appellant then proceeded with the bag, which contained some item, to the boot of the car. Detective Constable Harrison then described the appellant as leaning into the open boot at the right hand side (which was the side at which the battery shelf was situated). There was no suggestion that when the car was later searched by the police there was within the boot any white coloured plastic bag other than that in which the firearm and ammunition was contained.

[9] In addition, as the trial judge reports, there was some evidence respecting who owned and kept the Jaguar car. Although not expressly mentioned by the trial judge in her report, the Crown led unchallenged evidence from two police officers (other than those engaged in the surveillance exercise) respecting a form - "HORT 1" - given to the appellant in response to which the appellant accepted that he was the keeper of the vehicle and had insured it. There was, of course, also the evidence of what the appellant said to the police in his tape-recorded interview. In summary, and so far as pertinent to this appeal, what was said by the appellant was to the effect that he had bought the car from a person who had earlier been his landlord, some three to four weeks prior to the date of the offences; that he and Ms Russell were insured to drive it; and that he was the usual driver, but Ms Russell also drove it on occasions.

[10] The essence of the submission of no case to answer which was advanced to the trial judge was that the evidence demonstrated that two people, namely the appellant and Ms Russell, had access to the vehicle both before the journey began and during the journey. The appellant thus did not have exclusive access and control of the vehicle. The items were not on open view and there was no evidence of dissociation on the part of Ms Russell. In the discussion before the trial judge reference was made to White v HM Advocate 1991 SCCR 555; Bath v HM Advocate 1995 SCCR 323 and McAllan v HM Advocate 1997 JC 28. Some reference was also made to these authorities in the course of the submissions advanced in this appeal. However, counsel for the appellant indicated that he and the Advocate depute shared the view that nothing of importance for the present appeal turned on a close consideration of those authorities; the issue was, rather, related to the particular facts and circumstances of this case.

[11] In considering the sufficiency of the Crown case, and in particular whether there was sufficient evidence to allow the jury to infer that the appellant had knowledge and control of the firearm and the ammunition, the trial judge had of course to take as available to the jury the content of the appellant's police interview. But for present purposes it is convenient, as counsel for the appellant invited us to do, to consider the question of sufficiency on the assumption that the evidence of that interview was open to objection as inadmissible.

[12] Counsel for the appellant submitted that, on that assumption, there was no evidence that the appellant was the owner of the motor car. Ownership, said counsel, was not a trivial matter as a circumstance to which the jury might have regard in deciding whether to infer that the appellant had possession and control of what was found in the vehicle. Without that factual element, it was submitted, the evidence could be said to be insufficient.

[13] In our opinion this submission is unsound. As the Advocate depute pointed out in his submissions to us, the evidence of Detective Constable Harrison was important and significant. If accepted by the jury, that evidence plainly implicated the appellant as having placed a white coloured plastic bag containing some item into the boot of the Jaguar motor car at the Aintree Racecourse Retail Park. As already narrated, the firearm and the ammunition were found in a plastic bag of that colour in the battery compartment of the car to which access was gained through the boot of the car. That evidence gave rise to a strong inference that the appellant had placed the bag and contents in that compartment and that he therefore had the requisite knowledge and control. That evidence was further supported, first, by the surveillance evidence of the appellant being the driver of the car during its return journey from Edinburgh to Liverpool and back and, secondly, by the evidence from other police officers of the appellant's having responded to the HORT 1 form by stating that he was the keeper of, and held a policy of insurance for, the Jaguar on the day in question. In our view, the evidence of Police Constable Harrison, taken in conjunction with those other elements, was sufficient to allow the case to go to the jury. Whether in terms of civil law property in the vehicle had passed to the appellant was of no material importance for those purposes. Accordingly, even treating the evidence of the police interview as inadmissible, there was in our view sufficient evidence, if accepted by the jury, to demonstrate the requisite knowledge and control.

[14] Counsel for the appellant further submitted that the court required to consider whether, absent the evidence of the appellant's interview, the test set out in McInnes v HM Advocate [2010] UKSC 7; 2010 SLT 266 was met. Counsel formulated that test in casu as whether, without the terms of the appellant's police interview being before the jury, there was a reasonable chance that the jury would have acquitted the appellant.

[15] In our view the answer to the question so formulated is in the negative. In terms of its possible incriminating elements, the content of the police interview added little, if anything, to the other incriminatory elements of the Crown case which we have already discussed. The trial judge made plain in her charge to the jury that the evidence of Detective Constable Harrison was a central element in the case. The other surveillance evidence was largely uncontroversial as was the evidence respecting the HORT 1 response. There is, in our view, no reasonable prospect that the jury would have acquitted the appellant had the evidence of that interview not been adduced. We would add that much of what was said by the appellant in the interview was potentially helpful to the defence in, for example, the respects that it indicated that the appellant had only recently acquired the car from another individual and that others had access to and were insured to drive the vehicle.

[16] Finally, in so far as it was submitted that the trial judge misdirected the jury by not informing them that they should not have regard to the terms of the police interview, we consider this argument to be misconceived. Insofar as the leading of evidence of what was said in the interview might now be open to objection in light of the decision of the Supreme Court in Cadder v HM Advocate, that is a matter which goes to the admissibility of the evidence. For no doubt understandable reasons, no objection was taken at the trial. There was accordingly no basis upon which it would have been incumbent, or indeed proper, for the trial judge to have directed the jury to ignore the terms of the police interview.

[17] For these reasons we have come to the view that none of the grounds of appeal against conviction is sound and that the appeal against conviction must be refused, irrespective whether there be any merit in the plea of waiver which the Crown would wish to take by way of further opposition were that course to be given sanction by the United Kingdom Supreme Court in the appeals in Jude v H M Advocate and related cases currently pending before that court. The case will be continued to a later date for consideration of the appeal against sentence.