First Appellant: M C MacKenzie; Drummond Miller LLP, Edinburgh

Second Appellant: Keenan, Solicitor Advocate; Capital Defence Lawyers, Edinburgh

Respondent: Edwards AD; Crown Agent

11 June 2013

[1] The two appellants were convicted of theft by finding of copper wire. Miss MacKenzie on behalf of the first appellant and Mr Keenan on behalf of the second appellant contended that there was insufficient evidence of dishonest intent, and that a "no case to answer" submission should have been sustained.

[2] Cases such as these are fact-sensitive: see the dicta of Lord Justice General Rodger in Kane v Friel 1997 SCCR 207 at page 210. In our opinion, the following was of particular significance:

1. No report of copper wire "lost" or "stolen" had been made to the police.

2. On responding to a telephone call, the police found the appellants openly stripping the wire in a bin area near residential homes. They were not trying to hide what they were doing.

3. When approached, the appellants explained that they had found the wire in an area beside the beach next to takeaway premises. This was not an area where waste was normally deposited. It was situated about 2 miles from the bin area.

4. There was no evidence as to the condition or value of the wire.

5. The two appellants were forthcoming to the police on their arrival at the bin area and also during interview. They explained where they had found the wire and how they hoped to sell it, once stripped, to a scrap yard although they had no idea of the value.

[3] Against that background, we note that there was no evidence that the wire had been found near premises such as, for example, a works yard gate, that might suggest an inference of ownership by others. There was no evidence whether the wire was in good condition as if about to be used in some installation, or whether it was affected by verdigris and in poor condition. As was pointed out in Macdonald's Criminal Law at pages 31 to 32, the nature of the article as regards form, value or liability to perish, the means at the disposal of the finder for discovering the owner and the use made of these means, the time allowed to elapse before the appropriation, the conduct of the accused from which the appropriation is to be inferred and even the mental qualities and education of the party are all elements which may be of importance in judging intent.

[4] In our opinion, the present case is very different from a case involving the finding of a cheque book and cheque cards (Macmillan v Lowe 1991 SCCR 113) or the finding of a watch (the example used in Kane v Friel cited above) where an obvious inference arises that the property belongs to another and has not purposely been abandoned. Abandoning unwanted items, or fly-tipping, remained a possibility in the present case. Further, in our opinion, the justice was not entitled to draw an inference that the wire was of high value such that it was unlikely to have been thrown away, or that the wire was in a reasonably good state, or that it was unlikely that the wire had been abandoned where it was found.

[5] In the result, we are not persuaded that there was sufficient evidence of dishonest intent. Accordingly, the "no case to answer" submission should, in our view, have been sustained in each case. We shall therefore allow the appeals and quash the convictions.

SAM