Appellant: MacKenzie; Drummond Miller (for Dunipace Brown, Cumbernauld)

Respondent: Scullion, AD; Crown Agent

11 October 2012
[1] On 16 March 2012, the appellant was convicted at the Justice of the Peace Court in Cumbernauld on a charge of reset. He appeals against that conviction by way of stated case. The charge of which the appellant was convicted libelled that he had:

"On 30 September 2011 at the wooded area near the Auchenkillins junction on the A73 road Cumbernauld reset a quantity of copper cable being the property of British Telecom the same having been dishonestly appropriated by theft."

[2] The prosecution arose out of the following events. On 30 September 2011 around 9 am, David Thomson, an employee of British Telecom and a member of that company's Metal Theft Task Force, was travelling along the A80 road. When he reached the junction of that road and the A73 road, he saw smoke rising from a wooded area near the junction. From his past experience with British Telecom, Mr Thomson was aware that the wooded area had previously been used by individuals involved in metal thefts.

[3] Mr Thomson contacted the police. Shortly thereafter he was joined by two police officers at the edge of the wooded area, from which smoke was rising. Mr Thomson and the two police officers entered the wooded area together. Having walked a short distance, they came across a male burning copper cabling in a fire. The fire was still burning and smoke was rising from it. When Mr Thomson and the police officers arrived, the male, who was established to be the appellant, was standing a few metres away from the fire. Situated close to the appellant and the fire was a substantial quantity of copper cabling. This was identified by Mr Thomson as being British Telecom copper cabling. Between the appellant and the fire, lay two hessian bags. One contained a quantity of copper, which appeared to have been extracted from British Telecom cabling. That copper was still warm to the touch. The other bag contained a substantial quantity of burnt plastic that appeared to have come from British Telecom cabling.

[4] During the course of his evidence, Mr Thomson provided further information about the copper cabling used by British Telecom. He explained that it is formed of a weave of copper and insulation material, which is contained within the outer plastic sheeting. The outer plastic sheeting has British Telecom's markings on it. Mr Thomson gave evidence that all of the cabling found at the locus was British Telecom copper cabling, which he explained was unique to that company. It was used exclusively by British Telecom and their authorised agents. It was not available for sale on the open market, nor was it made available to members of the public. Mr Thomson went on to explain that if any British Telecom copper cabling required to be scrapped, it was disposed of by British Telecom to scrap dealers appointed by them. To avoid the risk of prosecution, scrap yards which were not appointed by British Telecom did not accept British Telecom copper cabling from other sources. Mr Thomson explained that there had been no reason for the copper cabling to have been found anywhere near where it had been found lying, other than that it had been stolen. He described what had been found as being consistent with the outer sheeting of some of the cabling having been burnt off in the fire, resulting in the copper in the cabling becoming separated from the insulation material and the outer sheeting.

[5] Two police officers, Constables Brown and Kelly, gave evidence of having met up with Mr Thomson and having walked with him into the wooded area until they came upon the appellant. They both described finding the appellant near to what they referred to as a fire pit, with a fire burning within it. They confirmed seeing the two bags, one containing a quantity of copper and the other a substantial amount of plastic sheeting. Remnants of plastic sheeting were also to be seen lying on the ground. Both officers gave evidence that the appellant had been the only other person present. They had seen nobody else in the wooded area.

[6] One of the officers described the appellant as having been covered from head to toe in smoke, with black residue on his hands. When detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995, on suspicion of the theft of the cabling and the extracted copper metal found at the locus, the appellant made no response and provided no explanation as to why he was in the wooded area. Two other police officers gave evidence and spoke to searching the appellant later on that day, whilst he was under detention at Cumbernauld police station. They found that he was in possession of what was described as a Stanley blade or knife.

[7] At the conclusion of the Crown case, the appellant's solicitor made a submission of no case to answer in terms of section 160 of the Criminal Procedure (Scotland) Act 1995. It was argued that the Crown had led no evidence to establish that the property found at the locus had been dishonestly misappropriated by theft. It was submitted that that was fatal to the charge of reset that had been libelled. That submission was repelled by the Justice of the Peace. The appellant did not give evidence and was convicted of the charge as libelled.

[8] Before this court Miss MacKenzie has argued that there had been two questions which the Crown had required to address in the evidence they led. The first was whether it could be established that the copper cabling had been stolen from British Telecom and secondly whether it could be inferred from the evidence placed before the Justice of the Peace that the accused was aware the cabling was stolen. It was accepted that clear evidence had been given by David Thomson that the cabling recovered was of the type used exclusively by British Telecom. However it was argued that there had been no other evidence that provided corroboration of his evidence that the cabling was stolen, that being an essential matter for the Crown to prove. It was submitted that the evidence of the police officers did not provide corroboration on that first issue. Whilst the evidence the Justice of the Peace had heard from the police officers might have given rise to suspicion, it did not constitute sufficient corroboration that the cabling and copper recovered in the wooded area had been stolen.

[9] Likewise, it was argued that the evidence that the Justice of the Peace had heard about what had been going on in the wooded area, when Mr Thomson and the two police officers arrived at the scene, had not been sufficient to infer that the appellant had guilty knowledge in the sense that he was aware that the property he was working with had been stolen. Indeed, Miss MacKenzie went further and argued that on the basis of the evidence the Justice of the Peace had heard, it was not open to her to hold as a matter of fact that the appellant had been actively engaged in working with the copper cabling and seeking to strip the copper out of the plastic sheeting when Mr Thomson and the officers found him in the wooded area.

[10] In reply, the Advocate depute argued that given the very clear and detailed evidence from Mr Thomson about the source of the cabling and British Telecom's procedures for scrapping, it required very little by way of corroboration to establish that the cabling had been stolen. That corroboration was to be found in the evidence given by the police officers. The only possible explanation for what the appellant had been doing, when the police came upon him, was that the appellant was working with stolen property and property he knew to be stolen property. Accordingly it had been open to the Justice of the Peace to hold that the appellant had been in possession of copper cabling, which had been stolen and which he knew was stolen.

Discussion
[11] In our opinion, it was open to the Justice of the Peace to hold on the basis of the evidence of Mr David Thomson and the police officers, Constables Brown and Kelly, that the appellant had been found in possession of the copper cabling and that he was working with it when they came upon him. It was also open to the Justice of the Peace to infer from the evidence of Mr Thomson, as corroborated by the two police officers, that the property had been stolen. In our opinion it was also open to the Justice of the Peace to hold that when the three witnesses came upon the appellant he was taking advantage of the concealment that the wooded area offered and was in the process of stripping out the copper core from the cabling. In our opinion, what Mr Thomson and the police officers came upon was eloquent of the appellant being in possession of stolen property and being well aware that he was in possession of and working with stolen property. The evidence given by those three witnesses warranted the inference of guilty knowledge on the part of the appellant being drawn.

[12] In the whole circumstances therefore, we are quite satisfied that the Justice of the Peace was entitled to convict. We accordingly answer the first question in the stated case in the negative, the second question in the affirmative and refuse the appeal.