Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 30

HCA/2015/001902/XC

Lady Smith

Lord Brodie

Lord Bracadale

OPINION OF THE COURT

delivered by LADY SMITH

in

APPEAL AGAINST CONVICTION

by

WILLIAM NEIL LAUDER

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Dow; Wardlaw, Stephenson & Allan

Respondent: Prentice QC, Sol Adv; Crown Agent

9 March 2016

[1]        On 1 May 2015 the appellant was convicted at Edinburgh Sheriff Court, by a majority verdict of the jury, of a single charge of theft in which it was alleged that he had, over a period of eight and a half years, between September 2004 and March 2013, stolen a quantity of jeans, jackets, other clothing, badges, labels and patches for attaching to clothing, books, bags, trousers, folders and miscellaneous items and accessories, of a total value of £194,825 or thereby.

[2]        The items were said to have been stolen from a company, Aero Leather Clothing Limited.  Aero specialises in the manufacture and retail of exclusive and expensive leather clothing in classic styles including American and British military style   It also retails vintage style denim jeans and various associated accessories and books.

[3]        The appellant who, by 2004, was aged 38 years, had been employed by Aero and its predecessor Transatlantic Trading Company since he was a young man.  He had been appointed managing director of Aero in 2004 when the majority shareholder, Mr Ken Calder and his wife retired.  The appellant had a shareholding amounting to about 21% of its total issued share capital.

[4]        In 2012 the Calders discovered that the appellant had an Ebay account.  It had been operating for about eight and a half years and the appellant had been selling Aero items on it.  As a result his Paypal account had been credited with £10,184.56.  The retail value of the items was £51,994.

[5]        On 4 March 2013, a search under warrant was made at the appellant’s home and a substantial number of Aero items were discovered there.  The value of the items uncovered in the search, when added to the goods found to have been sold on Ebay, brought out a total value amounting to the sum referred to in the charge.  

[6]        The Calders had gone to the business premises to challenge the appellant in September 2012 after their discovery of his Ebay account.  An emotional meeting ensued in the course of which he said he hadn’t done anything wrong.  His position then and at trial was that it was a perk of the job, that everybody took things from the factory all the time and that it was no big deal.  It was agreed at the meeting that if the appellant resigned as director and handed back his Aero shares for transfer to employee shareholders, then the Calders would not report the matter to the police.  However, the appellant did not hand back his shares and Mr Calder thereafter contacted the police.

[7]        When the current allegations were made, the appellant did not dispute that he had sold the items that were identified via his Ebay account or that, so far as the items found in his house were concerned, he had removed them from Aero’s premises.  He said that the Calders knew he had an Ebay account and knew he was selling items which had formerly belonged to the company.  He said that Mr Calder had told him that he could take Aero property as or in lieu of overtime.  When cross examined about that , after having been recalled, Mr Calder denied that he had done so.  Mr & Mrs Calder and their daughter, Holly, also sold items through Ebay.   Holly had sold one item of Aero clothing.  Her mother had sold one item of clothing and some Women’s Land Army patches which she had ordered through Aero.  Mr Calder had sold some 30 items that could be identified as having a possible link with Aero.

[8]        In his charge to the jury, the sheriff gave directions on the nature of the crime of theft. At pages 5 to 6, he said:

“Theft is appropriating the property of another without the owner’s consent and with the intention of depriving the owner of it permanently.”

At page 8 he said:

“What is material for the purposes of a charge of theft is that the property didn’t belong to the accused and that he took it without the owner’s consent and with the intention of depriving the owner of it permanently.”

Then, at pages 23 to 24, after having referred to the evidence about the September 2012 meeting, he

said:

“In terms of the evidence of the accused the meeting was effectively a charade.  The Calders knew that the accused had an Ebay account and knew that he was selling items which had belonged to Aero.  Amongst other things in terms of the accused’s evidence Mr Calder had specifically told him that he could take items from Aero as or in lieu of overtime payment.  You will remember that that was an allegation that wasn’t specifically put to Mr Calder when he first gave evidence so he was allowed to give further evidence on the point and denied that there was ever such an arrangement.”

[9]        In her speech to the jury, counsel for the appellant had invited the jury to consider whether the appellant had authority, whether tacit or implied, to take the items for his collection or to sell on Ebay since if that was correct, they should acquit.  Equally if they considered that he did not have such authority but honestly and reasonably believed that he did then in that event they should also acquit.

[10]      We turn then to the submissions for the appellant.  Counsel for the appellant, Miss Dow, relied on both grounds of appeal set out in the note of appeal, namely (first) that the sheriff failed to give adequate directions on the mens rea of theft; and( second) that he failed to direct the jury appropriately not to speculate, the context being certain comments made by the principal crown witness, Mr Calder, in the course of his evidence.  Miss Dow adopted her full and helpful written submissions.  She pointed to that part of her submissions that stressed that mens rea is an essential element of the crime of theft; any failure to direct on that is, she submitted, important.  There was evidence from which it could have been inferred that the appellant’s belief was a mistaken one.  She accepted, however that the evidence to which she referred was also consistent with the appellant’s position being that Mr Calder had told him that he had permission to remove the items.  However, that evidence and the evidence about other people doing the same thing enabled an inference to be drawn that the appellant believed that he had consent, in her submission.  We were referred to the relevant parts of the jury manual to a quotation from McDonald’s text book on Criminal Law, to the case of Kane v Friel [1997] SCCR 207, to Gordon on Criminal Law, 3rd Edition at page 53 and to the case McNee v Her Majesty’s Advocate, C690/02 HCJ.  In summary, the submission for the appellant was that the jury had to be told that they needed to be satisfied that the appellant had a dishonest intention and that involved the sheriff having to make it clear to them that they had to be satisfied that not only did he not in fact have consent but he knew that he did not.

[11]      In support of her second ground of appeal, Miss Dow submitted that the sheriff had failed to tell the jury that they must not speculate.  The context was Mr Calder having repeatedly made reference to evidence that he was aware of matters about which he could not give evidence as his hands were tied and of there being other evidence in existence.  The sheriff had, she said, failed to direct the jury about those matters in his charge and about not speculating.  She accepted that, as explained by the sheriff at page 16 of his report, he had told Mr Calder to stop making these references and that the sheriff advised that Mr Calder stopped doing so once he had been given that direction from the sheriff.  However, in the submission of counsel for the appellant, the jury still required to be directed expressly.  It was not enough simply to tell the witness to stop what he was doing.  Miss Dow also accepted that the sheriff did tell the jury generally to decide the case only on the evidence before them.

[12]      For the Crown, the advocate depute submitted that this was a narrow simple issue. The appellant’s complaint was that the absence of use by the sheriff of the adjectives “dishonest” or “felonious”, amounted to a misdirection.  We were referred by the advocate depute to the case of Mustafa v Elsherkisi [2011] SCCR 735 at paragraph 13, where it is explained that a trial judge’s charge ought to reflect the circumstances of the trial in which the jury are involved.  The issues in the case were narrow.  This was a case of an allegation of a theft of a substantial amount of stock; the defence position was that the accused had the express permission of Mr Calder to remove the stock.  Mr Calder expressly denied that.  There was no basis in evidence for implied permission or for the accused’s position being that whilst he did not have express permission he believed he was entitled to remove the stock, in which case further directions would, the advocate depute accepted, have been called for.  So far as the second ground of appeal was concerned, this was an example of the court requiring to control a witness, that was not uncommon and the way in which the sheriff dealt with matters was appropriate.

[13]      Turning to our decision, it is fair to say that if one was writing a text book definition of the crime of theft, the sheriff’s definition would have been incomplete. Being a common law crime, it requires mens rea and the particular mens rea concerned is that it is not only established that the accused took the items in question without the owner’s consent intending permanently to deprive him of them but also that the accused knew that he did not, when he took the goods, have that consent.  A person who takes the property of another believing they have the latter’s consent to do so, is not guilty of theft.  The sheriff did not provide express directions about that.  However, as the advocate depute submitted, a judge’s charge should not be an academic exposition of the law; rather, it must be tailored to fit the circumstances of the particular case that has been presented to the jury.  Here, the appellant’s clearly stated position was that he had Mr Calder’s express permission to take the items.  This was not a case where the accused’s position was that whilst he did not have express permission, he genuinely interpreted surrounding facts and circumstances as giving him that permission.  Had that been the case then the sheriff would have had to give the sort of directions about mens rea which counsel for the appellant submitted were required.  In the circumstances of this case, for the reasons given by the advocate depute, he did not, however, require to do so.  It was sufficient to direct them as he did.

[14]      Turning to the second ground of appeal, the complaint is that the witness made reference to the possibility of there being incriminating evidence which he was not being allowed to put before the jury.  In those circumstances, it was, we agree, important that it be made clear to the jury that they needed to exclude those references from their considerations and confine their attention to the evidence that was actually placed before them.  How a trial judge addresses such a task is a matter for his judgement.  In particular he needs to have regard to the risk that if the jury are reminded of it by way of specific reference later, when charging them, that may in fact encourage speculation.  There is, accordingly, no rule that such a matter needs to be referred to in his charge.  One way of dealing with the problem is to take action at the time.  In this case the sheriff decided to do that.  We accept that, in the circumstances, that was an option that was open to him.  In addition there was sufficient reference in his charge to the jury requiring them to direct their attention only to the evidence which they had heard.  There was no need for the sheriff to revisit the matter expressly.  That disposes of both grounds of appeal and we accordingly refuse the appeal presented today.