Appellant: CM Mitchell; Burn & McGregor, Aberdeen

Respondent: Prentice QC (sol adv) AD; the Crown Agent

27 February 2014

General
[1] On 4 June 2013, at Kilmarnock Sheriff Court, the appellant was found guilty of a charge which libelled that:

"on 18 March 2012 at Her Majesty's Prison, Kilmarnock ... being a prison ... you ... did, without lawful authority or reasonable excuse, have with you an article which had a blade or was sharply pointed, namely a sharpened piece of plastic; CONTRARY to section 49C(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995 ...".

He was sentenced to 18 months imprisonment, to run consecutively to an extended sentence of 8 years imprisonment which had been imposed on 2 September 2011 and in which the custodial element was 5 years.

Evidence
[2] The evidence was in short compass. It came from two prison officers. They said that the appellant was a prisoner in the segregation unit, which contains only single occupancy cells Prisoners are searched before going into that unit. The appellant initially occupied cell 10, but had been moved temporarily to cell 13. This was an anti-ligature cell, where the occupant would not be permitted his own property or clothing. That property and clothing was left, in the appellant's case, in cell 10.

[3] On the date of the libel, one of the prison officers thought that he had seen the appellant swallow a razorblade whilst he was in the showers. It was decided that the appellant would be taken to hospital. He was, in advance of that, returned to his original cell 10 to allow him to put on his own clothes, including his trainers. At cell 10 he picked up those trainers. Before he put them on, a decision was made to search them. Hidden under the insole of one of the trainers was a piece of snapped and sharpened plastic cutlery with a makeshift handle composed of rubber bands. The appellant denied that this item was his and maintained that it had been "planted". According to the evidence, no other prisoner would have had access to cell 10 during the appellant's absence in cell 13. The appellant himself did not give evidence.

The appeal
[4] A detailed Note of Appeal was lodged on 7 August 2013. This alleged certain misdirections in connection with the offence and a contention that no reasonable jury could have returned a verdict of guilty. An appeal was also marked against sentence. On 6 September 2013 leave to appeal was granted against sentence. In relation to conviction, the sifting judge determined that the misdirection point was not arguable. No mention was made in connection with the reasonable jury ground, but the following comments were made:

"It is arguable that there was insufficient evidence to entitle a jury to find the appellant had the weapon with him in terms of s 49C(1). In that there was no evidence to entitle a finding that he had a close physical link to the weapon or immediate control over it, or that he had 'ready' access to the weapon at the material time".

[5] An application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 was made, with a view to reinstating both grounds of appeal against conviction. In addition, leave was sought to amend the Note of Appeal to include the ground which the first sift judge had advanced. On 11 October 2013, the court refused the section 107(8) application in respect of both grounds. In relation to the amendment, since the court has no power to reverse a first sift decision, it allowed the Note of Appeal to be amended and expressly (for the avoidance of doubt) granted leave to appeal on the new ground.

Submissions and decision on conviction
[6] The appellant submitted that there was evidence that, when the appellant had been taken to the segregation unit, he had been "thoroughly searched", as it was put in the Note of Appeal. There was evidence that the kind of plastic cutlery used to make the sharpened item had been only available in the general area of the prison. Under reference to Smith v Vannet 1998 SCCR 410, it was contended that there was insufficient evidence of a connection or propinquity, as Steyn LJ put it in R v Pawlicki [1992] 1 WLR 827 at 832, between the appellant and the object in question. There was insufficient evidence therefore that the appellant had the item with him when it was found.

[7] There are two problems with the submission. First, the evidence was not that there was a "thorough" search prior to the introduction of prisoners into the segregation unit. Secondly, there is no narrative in the sheriff's report that this particular type of cutlery was only available in the general area of the prison. This then was a straightforward case in which, upon being returned to the cell in which his property was kept, the appellant picked up his trainer and was about to put it on when it was searched. The item under consideration was then found. Especially in the absence of any testimony from the appellant, the jury were entitled to conclude that he had the item with him, contrary to the terms of the statutory prohibition. The appeal against conviction must therefore be refused.

Sentence
[8] The sheriff describes the appellant as a lifelong recidivist, with a history of very significant violence. This is certainly borne out by his record, which contains, initially, three convictions for assault in consecutive years from 1993 to 1995. In 1999 he was convicted of assault to severe injury, permanent disfigurement and permanent impairment and sentenced to 5 years imprisonment. There is a further conviction for assault in 2004 and convictions for breach of the peace and possession of an offensive weapon in 2009 which attracted a sentence of 12 months imprisonment. The following year there is yet another conviction for assault to injury and a sentence of 6 months. The extended sentence, to which reference has already been made, was imposed in September 2011, in respect of a conviction of assault to severe injury and the danger of life. In between his convictions for violence the appellant has accumulated penalties for an variety of offences of dishonesty, public disorder and road traffic contraventions.

[9] The submission was that the sheriff had failed to have regard to the appellant's personal difficulties at the material time, including his mental health problems, which would have been apparent to the sheriff from the circumstances of his presence in the segregation unit. However, as is recorded, after the delivery of the jury's verdict, the appellant's agent expressly told the sheriff that there was "nothing" that he could say in mitigation. The sheriff considered that, given the maximum available term of 4 years imprisonment, he was inclined to impose a sentence at the upper end of that scale, having regard to the location of the offence and the appellant's record. However, he tempered this, given the cumulative effect of imposing an additional custodial term consecutive to the extended sentence. Even assuming that the appellant's mental health problems had been made a relevant consideration, there is no basis for considering that the sheriff's selection of a custodial term of this length was excessive, having regard to the location of the offence and the appellant's record for, amongst other things, significant serious violence. In these circumstances, the appeal, in respect of sentence, must also be refused.