Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 133

(1) XC563/13

(2) XC554/13

Lord Eassie

Lady Clark of Calton

Lord Wheatley

OPINION OF THE COURT

delivered by LORD EASSIE

in

APPEALS AGAINST CONVICTION

by

(1) STEPHEN ALAN RODGER and

(2) DUNCAN STANULIS

Appellants;

against

HER MAJESTY’S ADVOCATE

Respondent:

First Appellant:  Bradley, Sol Adv; Capital Defence, Edinburgh for Philip Rooney & Co, Glasgow

Second Appellant:  Collins, Sol Adv;  Capital Defence, Edinburgh for McGeehan & Co, Paisley

Respondent:  A Prentice, QC; Sol Adv, AD; Crown Agent

9 December 2014

[1]        The appellants were convicted on 12 September 2013 in the sheriff court in Glasgow of two of the charges on the indictment, namely a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and a contravention of section 16A of the Firearms Act 1968. The sheriff sentenced the appellants to concurrent terms of imprisonment, the sentence on the second charge being the longer of the two terms. The charges on which the jury returned a verdict of guilty were worded, after amendment, as follows:

“(001)  on 29 April 2013 at Haugh Road, Glasgow you STEPHEN ALAN RODGER also known as BRIAN ROBERTSON and DUNCAN STANULIS did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear and alarm in that you did enter motor vehicle displaying the registered number YE06 VKB and follow Eryn McKechnie, Louise Gallacher and Sam Nesbit […] then within a motor vehicle being driven by the said Louise Gallacher and thereafter drive said vehicle along behind the vehicle being driven by said Louise Gallacher and did whilst one of you had your face masked present a handgun or imitation hand gun at them;

CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010;

(002)  on 29 April 2013 at Haugh Road, Glasgow you STEPHEN ALAN RODGER also known as BRIAN ROBERTSON and DUNCAN STANULIS did have in your possession a firearm or imitation firearm with intent to cause a person, namely Louise Gallacher, Sam Nisbet and Eryn McKechnie […] to believe that unlawful violence would be used against them;

CONTRARY to the Firearms Act 1968 Section 16A as amended by the Firearms (Amendment) Act 1988 and the Firearms (Amendment) Act 1994.”

[2]        The circumstances of the case are summarised by the presiding sheriff in his report to this court in these terms:

“The background to this case is that in the middle of a Sunday afternoon, on 29 April 2013, a flat near Hampden Park in Glasgow was broken into and items stolen.  The householder, witness Robert McKechnie returned to the flat with his girlfriend, Louise Gallacher, his daughter, Eryn McKechnie and her boyfriend, Sam Nesbit, to find upheaval.  One of the items stolen was Mr McKechnie’s iPhone.  By use of technology, Eryn was able to track the whereabouts of the phone and against the wishes of her father, she, Sam and Louise got into Louise’s car and ‘followed’ the phone to the West End of Glasgow.  They ascertained the phone was at a particular block of flats at Blackie Street and they stayed in the vicinity for some hours making observations, watching people coming and going with items and getting in and out of cars.  In time, the appellant and his co-accused became aware that they were being watched and at around 10.00pm, they followed the three ‘observers’ by car and the offences as detained in charges (001) and (002) took place at the junction of Haugh Road and Argyle Street.”

[3]        From other passages in that report, and a supplementary report by the sheriff, it appears that the first appellant was identified as the driver of the car by Ms McKechnie and Mr Nesbit.  The second appellant was identified by those witnesses as the passenger in the car who presented what the Crown witnesses described as a gun.  They made that identification both on the basis of observations which they made in Haugh Road and on earlier observations in Blackie Street.  Ms Gallacher also identified the second appellant as being with the individual identified as the first appellant by Ms McKechnie.  There was no recovery of any firearm or imitation firearm.  In the cross-examination of these Crown witnesses the defence advanced the contention that the article which the witnesses had seen was a mobile telephone.  Neither appellant gave evidence. 

[4]        In his note of appeal, the first appellant tendered a number of grounds of appeal of which only the following was granted leave to appeal:

“[ii] Esto, on the evidence, the Sheriff erred in law in rejecting the Appellant’s submissions that leaving both charges before the jury would give rise to double jeopardy, the same evidence being founded upon by the Crown in support of both charges libelled;” [sic]

All of the grounds of appeal tendered by the second appellant were refused leave; but in refusing leave to argue those grounds the Court allowed the second appellant to adopt the single ground in respect of which leave to appeal had been granted in the appeal by the first of the appellants. 

The statutory provisions

[5]        Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 – “the 2010 Act”- is in the following terms:

“38 Threatening or abusive behaviour

(1) A person (‘A’) commits an offence if¾

(a) A behaves in a threatening or abusive manner,

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm. 

Section 16A, as added by section 1(1) of the Firearms (Amendment) Act 1994,  and sections 17 and 18, of the Firearms Act 1968  (as extended by the Firearms Act 1982 and as amended by the Firearms (Amendment) Act 1988) are in the following terms:

“16A. Possession of firearm with intent to cause fear of violence.

It is an offence for a person to have in his possession any firearm or imitation firearm with intent¾

(a) by means thereof to cause, or

(b) to enable another person by means thereof to cause,

any person to believe that unlawful violence will be used against him or another person.

17.¾Use of firearm to resist arrest.

(1) It is an offence for a person to make or attempt to make any use whatsoever of a firearm or imitation firearm with intent to resist or prevent the lawful arrest or detention of himself or another person.

(2) If a person, at the time of his committing or being arrested for an offence specified in Schedule 1 to this Act, has in his possession a firearm or imitation firearm, he shall be guilty of an offence under this subsection unless he shows that he had it in his possession for a lawful object.

[…]

(5) In the application of this section to Scotland, a reference to Schedule 2 to this Act shall be substituted for the reference in subsection (2) to Schedule 1.

18.¾Carrying firearm with criminal intent.

(1) It is an offence for a person to have with him a firearm or imitation firearm with intent to commit an indictable offence, or to resist arrest or prevent the arrest of another, in either case while he has the firearm or imitation firearm with him.

(2) In proceedings for an offence under this section proof that the accused had a firearm or imitation firearm with him and intended to commit an offence, or to resist or prevent arrest, is evidence that he intended to have it with him while doing so. 

(3) In the application of this section to Scotland, for the reference to an indictable offence there shall be substituted a reference to any offence specified in paragraphs 1 to 18 of Schedule 2 to this Act.”

Schedule 2 to the Firearms Act 1968 – we refer to this Act, as amended,  as the “Firearms Act” -  includes assault in the list of offences there specified;  but  the list does not include the offence created by section 38 of the 2010 Act. 

Submissions
[7]        We endeavour to summarise the argument for the first appellant.  Regrettably, this task is not assisted by conflicting passages within the first appellant’s written case and by the unfortunately unstructured nature of the oral submissions advanced to us by his solicitor.  Doing the best we can, we think we can identify the following strands of argument. 

[8]        First, Mr Bradley stressed to us, as he had done to the sheriff, that the act of presenting a firearm or an imitation firearm constituted an assault at common law (such threats of violence being technically assault).  Accordingly, as we understood Mr Bradley, his contention was that, although he readily acknowledged that it was not incompetent for the prosecutor to have libelled a contravention of section 38 of the 2010 Act in the circumstances of this case, the prosecutor had erred in that selection.  The prosecutor should have libelled an assault and a consequent contravention of section 17(2) of the Firearms Act. 

[9]        Secondly, convicting the appellants of both charges resulted in contradictory verdicts.  Underlying this contention was the proposition that the intent to which section 16A of the Firearms Act referred, namely an intent to cause a person to believe that he, or another person, might suffer unlawful violence, was confined to an essentially latent intention to commit some future act.  Once that intention was realised by presenting the weapon (or imitation weapon), thus resulting in conduct within the ambit of section 38 of the 2010 Act, or assault, the temporal scope of section 16A ended and that section could no longer apply.  Since the timescale of the events in the present case was short, the charges could not realistically be temporally separated.  Thus the prosecutor required to elect with which charge to proceed.  The prosecutor could properly have made that election by proceeding only with the charge which he had libelled under section 16A of the Firearms Act. 

[10]      In the third place, reflecting perhaps more closely the terms of the ground of appeal, the conviction of the appellant on both charges resulted in what was described as “double jeopardy”. The double jeopardy arose because for both charges the Crown relied upon the same evidence, namely the evidence of the three complainers respecting their being followed and the display of an object which they took to be a firearm.  Other than a reference to the final sentence commencing on page 481 of the report of the opinion of the court in Dickson v HM Advocate 1994 SCCR 478, Mr Bradley professed himself unable to take the court to any of the other or earlier authorities in the field of cumulative and alternative charges. 

[11]      The written argument for the second appellant essentially adopts what is said respecting the third strand which we have summarised in the argument for the first appellant.  By way of a brief oral contribution, Mr Collins submitted the short point that essentially the only evidence was the evidence of the brandishing of the weapon; hence it was difficult to draw any inference that there was earlier possession of the weapon with earlier requisite intent.   Regrettably, Mr Collins was likewise unable to respond positively to the court’s invitation to assist by examining other authorities in the field.

[12]      Regrettably, the written argument for the Crown also omits to consider the Scottish authorities on cumulative and alternative charges, including the jurisprudence relating to what might be said, in the context in which the term is used in this case, “double jeopardy”.  Instead, in a matter ultimately of Scots law of procedure and practice, the written argument turns to a text dealing entirely with English pleading and practice in criminal cases, namely Archbold on Criminal Pleadings Evidence and Practice (2014 edn).  Moreover, in addressing what can only be seen as issues of principle respecting criminal liability, the author of the written argument on behalf of the Crown somewhat surprisingly cites, as purported authorities on those issues of principle, some reported English cases on appeals on severity of sentence following pleas of guilt.  The Advocate depute offered little by way of assistance to the court other than to say that he did not accept that the Crown relied on the “same evidence” or that there was “no additional evidence”; the behaviour in section 38 was such “additional evidence”.  He also indicated that he was unable to assist the court with any discussion or examination of the authorities relating to the cumulative and alternative charges. 

[13]      In consequence, the discussion upon which we are about to embark must be prefaced by the observation that unfortunately we were not greatly assisted by parties’ submissions. Sitting in its appellate capacity, the High Court of Justiciary is (generally) a court of final instance and hence a supreme court; as such, the court should be afforded the assistance of  a commensurately high quality of advocacy from those who undertake the important professional responsibility of presenting appeals to it.

Discussion
[14]      With that preface, we begin with the contention advanced in the ground of appeal, namely that the convictions on both charges gave rise to double jeopardy, the same evidence being founded upon by the Crown on both charges.  In the written arguments tendered in these appeals and in what was advanced orally, the appellants uniformly refer in this context to the Crown relying on “the same evidence”. 

[15]      However, in our view, approaching matters from the standpoint of “the same  evidence” is capable of leading to error.  The principle stated in the founding Scots  authorities in this area – Scott v Anderson (1866) 5 Irv 285; Lauder v Brown (1889) 2 White 348 – is that the Court will not convict a person of more than one offence arising out of the same species facti.  That proposition is essentially a statement of the principle expressed in the Latin maxim ne bis in idem crimen judicetur.  The focus of the principle or proposition is in the identity of the species facti.  That was the proposition described by the Lord Justice General (Hope) in delivering the opinion of the court in Dickson v HM Advocate as being well-established.  In our view, the later references in that opinion to “the same evidence” and “additional evidence” are directed not to whether, viewed as a generality, the prosecutor relies on the same corpus of testimony, but as an aid or help to determining whether the two charges in issue involve the same species facti.  In this context, the Latin term species facti means simply the facts which must necessarily be established to constitute the offence in question.  A body of evidence covering a course of conduct or sequence of activities may well involve the commission of offences with different species facti.  Where two offences are charged there may be a partial overlap in the set of facts which has to be established for each offence.  But in our view a partial overlap does not equiparate with identity in the species facti. 

[16]      In our view, the species facti – or factual ingredients – necessary to constitute the two statutory offences with which the appellants were jointly charged are not the same. 

[17]      In order to found a conviction under section 16A of the Firearms Act there are two factual elements which the prosecutor requires to establish.  These are: (a) possession of a firearm or imitation firearm; and (b) intent to cause a person – in casu the complainers – to believe that unlawful violence would be used against them or another person.  Both of those factual ingredients are no doubt matters which require to be established by the drawing of inferences from other, primary facts established in the general corpus of the prosecution case. 

[18]      The elements which the prosecutor requires to establish in order to make good a conviction under section 38 of the 2010 Act are plainly different.  Whereas the offence under section 16A of the Firearms Act involves simply possession with the requisite intent, a cardinal ingredient of section 38 of the 2010 Act is actual behaviour which is not only threatening or abusive, but would also be likely to cause fear and alarm.  The mens rea of the offence is an intention (or recklessness) to cause fear and alarm by that behaviour. 

[19]      Turning to the circumstances of the present case, in practical terms the prosecution evidence as a whole brought out primary facts which enabled the inference to be drawn that the appellants had possession of the object, which the relevant witnesses adduced by the prosecutor believed to be a gun, in the appellants’ motor car prior to that object being revealed to the complainers.  The evidence of primary fact permitted the jury to infer that from the outset of the car journey the appellants not only had possession of the object which the jury held to be a firearm or imitation firearm but had so with the intention of inducing a person that unlawful violence would be used towards that person or another person.  That is all that is necessary to constitute the contravention of section 16A of the Firearms Act. 

[20]      But in order to constitute a contravention of section 38 of the 2010 Act, further steps were required. Those steps required engaging in actual behaviour towards the complainers, the behaviour being threatening or abusive, with the appellants having the intention of causing fear and alarm (or being reckless in that respect). 

[21]      As we understood him, Mr Bradley accepted that, where an offensive weapon was used in an assault, and the evidence demonstrated possession of the weapon in a public place in the time leading up to its actual use, there was nothing inept in a charge of assault being accompanied by a charge of possession of the weapon in issue.  Again as we understood him, this acceptance was offered because it was recognised that the crime of using the weapon was different in its factual constituents from the possessory offence; and in time it preceded the former.  The only basis upon which Mr Bradley suggested the present case might be distinguished was that the time involved was “short”.  In our view that is plainly not a relevant distinction.

[22]      We turn to the second strand to which we referred above in paragraph [9], namely that convicting the appellants on both charges was contradictory.  We observe first that the contention so advanced proceeds upon the view, which we reject,  that matters must be tested at a single point in time.  The events spoken to in the evidence adduced by the prosecution covered a period of time, with the appellants having possession of the object, believed to be a gun, in their car for a material space of time prior to its being displayed to the complainers.  That apart, while the solicitor advocate for the first appellant made much of the distinction in the language of the Firearms Act as discussed in R v Kelt [1977] 1 WLR 1365 between “possession” and “having with”, he rightly recognised that the latter concept was a narrower one which was encompassed within the former, wider concept of possession.  That being so we can see no reason wherefore an intention on the part of the possessor to cause a person to believe that unlawful violence will be used against that person or another person ceases to exist when the possessor takes the further step of displaying or brandishing the firearm, or imitation firearm, to the person when his foremost intention must be to cause that person to whom the weapon is displayed or brandished to have that very belief.  In our view there is no logic in Mr Bradley’s proposition; we think it is misplaced.

[23]      Proceeding, in reverse order, we come next to the first strand which we identify in paragraph [8] above.  This was seemingly at the forefront of Mr Bradley’s submission to the sheriff.  Despite our endeavours to obtain elucidation, we remain unclear, if not perplexed, as to the relevance of this submission.  He volunteered – in our view rightly – that the prosecutor was entitled to charge a contravention of section 38 of the 2010 Act.  But, as we understood him,  since the actual display or brandishing of the alleged firearm or imitation firearm constituted at common law an assault, the prosecutor could have charged, instead of the contravention of section 38 of the 2010 Act, a common law charge of assault and, in addition, a contravention of section 17 of the Firearms Act.  As Mr Bradley also volunteered, had the prosecutor adopted that approach to the prosecution, the maximum penalties available to the sentencer would have been substantially greater than those available to the sentencer on the indictment which his client faced.  The criticism thus advanced in the first strand of what we understood to be Mr Bradley’s argument is that, while accepting that it was perfectly proper for the prosecutor to have proceeded to indict as the prosecutor did, the prosecutor could – and implicitly should – have taken a different decision involving exposure of the appellants to higher penalties.  As a submission advanced on behalf of the appellant its logic is hard to follow; we reject it.

[24]      In these circumstances, and having given wider,  careful consideration to the legal authorities and principles in issue, and recognising that the sentencing implications of convictions under the Firearms Act is a matter for the legislature,  we have come to the conclusion that these appeals must be refused.