Appellant: N Allan, solicitor advocate; George More & Co

Respondent: A F Stewart, QC AD; Crown Agent

25 September 2012

[1] On 28 March 2012, at Edinburgh Sheriff Court, the appellant was convicted of two offences committed at Boswell Parkway, Edinburgh on 23 July 2011. The first was a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, by threatening to assault police officers. No issue is taken with that conviction. The second was a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 by having with him an offensive weapon, namely a screwdriver.

[2] The evidence was in short compass. At about 12.30am, two police officers went to Boswell Parkway to trace certain persons said to have been involved in criminal activity, possibly an assault or a housebreaking. They came across the appellant, who matched the description that they had been given. When the police approached, the appellant told them to "f.. off" and lunged aggressively at them. He was then handcuffed. He was found to have an 8 inch Phillips screwdriver in his pocket. During the course of the subsequent struggle, he said that he would stab one of the police officers with the screwdriver and also enlist the assistance of his father to assault the police further.

[3] The sheriff convicted the appellant of the contravention of section 47(1). In explaining his reasons for doing so, he took into account not only the timing and place of the offence but also the remark made by the appellant to the police after he had, in effect, been restrained. The sheriff took the view that the case was "on all fours" with Normand v Matthews 1993 SCCR 856.

[4] The argument presented, both at the trial and at the appeal, was that there was insufficient evidence to demonstrate that the appellant had the screwdriver for the purpose of causing personal injury. In that regard, of course, the screwdriver could only be classified as offensive if the Crown demonstrated that the appellant had the screwdriver with him with the intention of causing injury to the person; a so-called category 3 item (see Gordon: Criminal Law (3^rd ed) para 30.44). Under reference to R v Jura [1954] 1 QB 503; Ohlson v Hylton [1975] 2 All ER 490 and Glendinning v Gill 1987 SCCR 304, it was submitted that the remark about stabbing the police could not be used as proof of the appellant's purpose at the earlier time, when he had the screwdriver with him and was free to use it. Put another way, the remark made after the appellant had been restrained, could not be used to prove what his purpose had been prior to his restraint.

[5] In response, the Crown supported the reasoning of the sheriff and his reference to Normand v Matthews 1993 SCCR 856. Reference was made also to McKenzie v PF Dundee, High Court, 11 April, unreported.

[6] The circumstances of this offence involved the finding of the appellant in a public place in the early hours of the morning with a screwdriver in his possession. No legitimate reason was advanced for that possession. This distinguishes the case from both R v Jura [1954] 1 QB 503 and Ohlson v Hylton [1975] 2 All ER 490 in which it was established that the accused persons had legitimate reasons for having the relevant items (a fairground air rifle and a carpenter's hammer) immediately prior to their use. Similarly, in Glendinning v Guild 1987 SCCR 13, the appellant was carrying a flail on his way to use it at martial arts class. The court has some sympathy for the view that the case might not be entirely "on all fours" with Normand v Matthews (supra), in which the accused had told the police searching him that he had a knife with him for "protection". However, it is of the view that the sheriff was entitled to take into account what the appellant had said after being restrained in order to draw the appropriate inference about the purpose for which he was carrying the screwdriver in the first place.

[7] In any situation, it will be a matter of facts and circumstances what legitimate inference can be drawn from possession coupled with any associated remark. In this case, having regard to the time and place of the incident, and to the remark, which suggests, at least on one view, that the appellant had in mind that the screwdriver might be used for violence, the court is of the view that the sheriff was entitled to draw the inference which he did. It will accordingly answer the two questions in the affirmative and refuse the appeal.

DL