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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Johnston

Lord Reed

C.G.B. Nicholson, CBE, QC,

[2008HCJAC25]

Appeal No: XJ 63/08

OPINION OF THE COURT

delivered by C.G.B. NICHOLSON, CBE, QC

in

APPEAL BY STATED CASE

in causa

KATE FRAME

Procurator Fiscal, Aberdeen

Appellant;

against

STUART MITCHELL KENNEDY

Respondent:

_______

Appellant: McConnachie, QC, AD; Crown Agent

Respondent: No appearance

25 April 2008

Background

[1] This is an appeal at the instance of the Crown against the acquittal of the respondent at Aberdeen Sheriff Court in respect of three charges under section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. That acquittal followed when the sheriff, at the conclusion of the Crown case, upheld a defence submission of no case to answer.

[2] The charges against the respondent were that, on 17 March 2007, at Bon Accord Street, Aberdeen, he did without lawful authority or reasonable excuse have with him in a public place an offensive weapon, namely, in respect of charge 1, a side handled baton; in respect of charge 2, a friction lock baton; and, in respect of charge 3, a spray; all contrary to section 47(1) of the above mentioned Act. The circumstances giving rise to those charges are somewhat unusual but, as the sheriff has observed in the Stated Case, the salient facts were not the subject of dispute. These facts, as spoken to by three police officers who gave evidence on behalf of the Crown, were as follows.

[3] Shortly before 9.30 pm on the date in question, two police officers in plain clothes, PC Fiona Duncan and PC Amanda Lawson, had been involved in an unrelated inquiry at flats above licensed premises known as the Paramount Bar in Bon Accord Street, Aberdeen. In the course of returning to their vehicle they came across the respondent standing close to the Paramount Bar. He was wearing the uniform of a police sergeant, and he appeared to both police officers to be a genuine police officer. They greeted the respondent informally, and he immediately volunteered that he was not a real policeman. He explained that he was a male stripper who had been hired to perform a stripogram at the Paramount Bar that evening. The uniform worn by the respondent and the equipment carried by him were substantially identical to that worn and carried by a genuine serving officer. He was wearing black combat trousers, black shoes and a white shirt. He had black body armour and was displaying a sergeant's stripes. His uniform carried the serial number '0069'. He was also wearing a black tie; and a police badge was pinned to his body armour and to the back of his uniform. He wore a black police hat with the motto of the Scottish Police thereon – 'semper vigilo'. He wore a utility belt with attachments. There was a cuff holder and a set of rigid handcuffs. On his utility belt there were two baton holders each of which carried a baton, namely a side-handled baton (charge 1) and a friction lock baton (charge 2). In addition, he had a radio holder and radio with telephone apparatus and a microphone. On the utility belt there was also a spray holder and a canister inside (charge 3). The only exception to current Grampian police issue uniform was that he was wearing a white shirt as opposed to the now standard black shirt.

[4] Having volunteered that he was not a genuine police officer, the respondent explained that he was booked to go into the Paramount Bar to perform a stripogram at 9.30 that evening, which was a few minutes later. He did not wish to be late. He was asked his name and he provided it. The police officers decided to allow him to enter the premises. Neither officer was sure what action, if any, to take. PC Duncan was concerned throughout that he looked exactly like a police officer, and she had little or no concern initially about any potentially offensive weapons. However, PC Lawson was more concerned with the items carried in the respondent's utility belt worn around his waist. Both officers decided to seek guidance from their supervising officer, the Duty Inspector at Queen Street, Aberdeen. Following upon a conversation with that officer they decided that they would speak to the respondent after he had finished his act. Both officers were of the view that it was important to ascertain the truth or otherwise of the respondent's stated purpose of attendance at the premises. They, accordingly, attended within the Paramount Bar and saw part of his performance. Both officers were satisfied that what they had been told by the respondent was true and genuine. When the respondent came out of the premises the officers approached him and invited him to attend police headquarters, and he agreed to do so. He was not cautioned at that stage.

[5] At the police office PC Duncan again sought guidance from the Duty Inspector and as a result of advice given decided to caution and interview the respondent. She carried out the interview with PC Lawson acting as corroborating officer until a point when PC Lawson was called away to other duties whereupon PC Morag Campbell was called in to corroborate the remaining part of the interview.

[6] The sheriff has set out the relevant parts of the interview which were referred to in evidence. The first passages which he has quoted indicate, putting it shortly, that all of the respondent's uniform and equipment had been genuine police issue which he had acquired for his work as a professional stripper from various legitimate sources, including through the internet. He was then asked about the CS holder, and the following questions and answers have been recorded:

"Q What is in the CS holder?

A A defence dye, it doesn't get used in the act.

Q Why do you have it?

A In case I was to be assaulted. I had my jaw broken in an unprovoked attack years ago, 2004. Drunk guys get very jealous of male strippers. I've never had to use it.

Q How would you use it if you had to?

A If someone assaulted me, I would spray them in the face with it and try to get away. It's more for self defence to disorientate someone to get away."

[7] At the conclusion of the interview the officers took possession of various items of equipment including the two batons and the spray. Neither of the batons was a toy. Once again, PC Duncan spoke to a superior officer to obtain guidance, and she then made further inquiries, including checking the authenticity of the company that the respondent claimed to work for. After these inquiries were concluded she was completely satisfied that the respondent was telling the truth and that the three items referred to in the charges were indeed used by him in his act as a stripper.

[8] Shortly thereafter PC Duncan contacted the respondent and asked him to attend the police office again which he did on a voluntary basis on 22 March 2007. He was cautioned and interviewed again. In the course of that interview he was asked how he had travelled to Bon Accord Street on the date in question. He replied that he had done so by bus. He was then asked where the police uniform had been when he was travelling, to which he replied that it was underneath a coat "obviously without the hat". The hat, he said, was "in the bag". He was then asked whether it was part of his act to be standing in Bon Accord Street near to the Paramount Bar at the time when seen by the Police Constables to which he replied in the negative, saying that "I was standing off the street, in an alcove just out of sight".

[9] In cross-examination PC Duncan explained that, during the respondent's performance in the Paramount Bar, he took off several items of clothing. She said that the premises were busy, and the audience seemed to enjoy the act; but she did not see the whole performance. PC Duncan also explained that, throughout the whole matter, she had been primarily concerned with the question whether the respondent was committing an offence by dressing as a police officer. She was little concerned about the question of offensive weapons. PC Lawson, on the other hand, had been more concerned about the alleged offensive weapons. She said that she was satisfied that the respondent was a bona fide stripper, but was concerned about his having offensive weapons with him.

The submission of no case to answer

[10] At the conclusion of the evidence for the Crown the solicitor for the respondent submitted, under section 160 of the Criminal Procedure (Scotland) Act 1995, that there was no case to answer. Putting it shortly, he submitted that "there was no evidence from any source that the [respondent] was in possession of [the items in question] other than as props in his act". He also submitted that it had not been established that the batons were per se offensive. In response, the procurator fiscal depute submitted that those items were capable of being used for offensive purposes, and suggested that, if they were merely cosmetic and carried for effect, it was not clear why the respondent required to use real batons instead of replica toys.

The sheriff's decision

[11] In sustaining the defence submission of no case to answer the sheriff began, correctly in our view, by rejecting the submission that the batons referred to in charges 1 and 2, were not offensive weapons per se. However, he went on to conclude that, in the circumstances of the present case, there was no evidence even to hint at the suggestion that the respondent had any intention of causing harm and injury to other persons, and he expressed himself as being satisfied that the Crown evidence clearly established that the respondent had the batons for no other purpose than as props in his act. In that situation the sheriff concluded that the Crown evidence established that the respondent had reasonable excuse for being in possession of the batons. For somewhat different reasons the sheriff also upheld the defence submission in relation to charge 3. It is now unnecessary to examine those reasons since, before this Court, the advocate depute ultimately abandoned the appeal in respect of charge 3. In the result we are now concerned solely with charges 1 and 2 (the batons), and with the question whether the sheriff was entitled to hold, on the basis of the evidence led for the Crown, that on the night in question the respondent had a reasonable excuse for having those items with him on Bon Accord Street, Aberdeen. Questions of 'lawful authority' do not, of course, arise in this case.

The submissions for the Crown at the appeal hearing

[12] In opening his submissions the advocate depute began by reminding us that, at the time when this case was disposed of at first instance, there had been a considerable amount of publicity in the media, some of which had been critical of the Crown for ever having brought the prosecution in the first place. He sought to reassure us that considerable thought had been given to the matter, and that the prosecution was proceeded with only because the Crown was satisfied that the carrying by the respondent of the items in question did indeed amount to a contravention of section 47(1) of the 1995 Act. We, of course, accept without hesitation that the Crown acted in good faith and after careful consideration. However, it remains our task to determine whether the Crown or, alternatively, the sheriff at Aberdeen took the correct view in the particular circumstances of this case.

[13] The advocate depute accepted, as we do, that the sheriff had been correct to conclude that the batons were offensive weapons per se, and in that situation he submitted that the sheriff had fallen into error when, as recorded at page 10 of the Stated Case, he commented that there "is no evidence at all which even hints at the suggestion that [the respondent] had any intention of causing harm and injury to other persons". That, it was submitted, is an irrelevant consideration in respect of weapons which are offensive per se. In any event, it was further submitted, the respondent's statements in respect of the spray in the course of his first interview with the police (see para. [6] above) indicated that he foresaw that there was at least the possibility of trouble arising in the course of his act. That, it was submitted, must colour the position in respect of the batons.

[14] The advocate depute then went on to refer to an English case which at first sight, as he conceded, is against the Crown position in the present appeal. That is the case of Houghton v. Chief Constable of Greater Manchester (1987) 84 Cr. App. R. 319. That case was in effect an action for unlawful arrest, but the arrest in question had been in respect of an alleged breach of section 1 of the Prevention of Crime Act 1953 which is in virtually identical terms to section 47 of the 1995 Act. The plaintiff, a former airport police officer, went to a fancy dress party dressed in a police constable's uniform and wore, as part of that uniform, a police truncheon. On his way home from the party he was stopped by two police officers who asked him if he was a member of the police force. The plaintiff at first replied in the affirmative, then explained that he was a former police officer. He was arrested and taken to a police station where he was detained and charged with carrying an offensive weapon contrary to section 1 of the 1953 Act. After committal for trial, the prosecution offered no evidence against him and the plaintiff was acquitted.

[15] Dealing with the matter of reasonable excuse, May L.J. said this (at p. 323):

"On the facts as I have outlined them, it is quite clear why [the plaintiff] had it on him, namely as a theatrical prop to support the verisimilitude of his fancy dress. [Counsel for the respondent] submits that that is not enough, that that cannot be said to be a reasonable excuse for carrying an offensive weapon per se in a public place, particularly at one o'clock in the morning in the middle of an urban area. In the course of argument he canvassed the situation of someone who, for instance, goes to a fancy dress party dressed as an ancient Briton, carrying with him a club into the head of which nails have been knocked so that, if used, it will cause substantial damage to the person against whom it is used. Clearly that would be an offensive weapon per se. But if the facts are merely that a person, somewhat inadequately clad in a goatskin, is walking along a street carrying such a weapon as part of his fancy dress, is that a reasonable excuse for him to have it in his possession? I stress that the only facts which are proved are that it is being carried as a prop for his fancy dress. The situation would be different if there was any other evidence, for instance as to the amount of drink taken, or as to the presence of opposing factions at the particular party to which the accused had been, or that the weapon had been used in a threatening way. But where the weapon, offensive per se, is carried merely as a theatrical property, as part and parcel of a fancy dress worn by a person going to a fancy dress party, I think that that does constitute a reasonable excuse for carrying that particular prop. I ask myself rhetorically, what other reason has he got for carrying that particular article at that time? The only answer that one can give is that he has it to add, as I say, verisimilitude to his fancy dress. That, as I think, is a reasonable excuse in itself. Nevertheless I wish to stress that to wear fancy dress with appropriate props should not be used as an excuse unlawfully to carry through urban areas articles which are per se, or can very rapidly be turned into, offensive weapons. I am dealing with the facts as found in this particular case and which I have outlined. No others were deposed [sic] to in evidence nor found by the learned judge. Consequently I have reached the conclusion that the truncheon was an offensive weapon per se but that the plaintiff had a reasonable excuse at the time for carrying it."

[16] The advocate depute also referred us to three other cases. The first of these is McCulloch v. Normand which is briefly reported at 1994 GWD 8-470 but which is reported in full in Shiels, Offensive Weapons, at page 81. It was a case in which the appellant had been seen by police officers wearing a plaid and having round his waist a scabbard from which was protruding the handle of a sword. It transpired that he was a member of the White Cockade Society and had, on the previous day, been taking part in a mock battle which had been filmed by the BBC. He had spent the night with a friend and, when seen by the police, was on his way home. In refusing his appeal against conviction this Court held that there was no reasonable excuse for having the sword when seen by the police since at that time he was "going through the streets wearing the scabbard with the sword in it round his waist".

[17] The next case referred to by the advocate depute is McKee v. MacDonald 1995 SCCR 513. That case also involved a baton which, in that instance, was found by police officers on the back seat of the appellant's car. It was a very light wooden baton in the shape of a police truncheon, and it was, apparently, a souvenir which had been brought from Spain. This Court held that, in the circumstances, it could not be said beyond reasonable doubt that it was an offensive weapon per se.

[18] Finally, the advocate depute referred us to Lister v. Lees 1994 SCCR 548. That was a case which turned on the interpretation to be given to the words 'good reason' as used in section 1 of the Carrying of Knives etc. (Scotland) Act 1993. The facts of the case are not of significance for present purposes. However, the advocate depute founded on a passage in the Opinion of the Court, delivered by the Lord Justice Clerk (Ross) where, at page 553, he said:

"Although 'good reason' is a different expression from 'reasonable excuse', in our opinion the same approach falls to be adopted when the court is considering whether what has been put forward on behalf of an accused amounts to 'good reason'. Each case must depend on its own facts and circumstances and, in determining the issue, the court should have regard to the general purpose of the legislation, and where the legislation contains a general prohibition, the court must determine whether the reason advanced appears to constitute a justifiable exception to the general prohibition contained in the legislation."

[19] Commenting on the foregoing cases, the advocate depute stated that he was not suggesting that the decision arrived at by May L.J. in the Houghton case was wrong. However, he submitted that, in the present case, and unlike the position as established by the facts in Houghton, there was a potential for trouble and disturbance. In that connection he referred to the respondent's answers at interview (see para. [6] above) in relation to the possible use that might be found for the spray which he was carrying. That, it was submitted, must colour his possession of the batons so as to remove any possibility of there being a reasonable excuse for having them. The case of McKee was, it appeared, referred to simply as an example of circumstances at the opposite end of the spectrum where, having regard to the nature of the article in question, it could not even be said that it was an offensive weapon. However, the advocate depute placed considerable reliance on the passage which is quoted above in the case of Lister v. Lees. While accepting, as did the Lord Justice Clerk in that case, that each case will depend on its own facts and circumstances, he submitted that the general purpose of section 47 of the 1995 Act is to ban the carrying of offensive weapons in public places. That being so, he submitted, the carrying of articles which are per se offensive weapons cannot be subject to a "justifiable exception to the general prohibition" simply on account of the fact that they are being used as props for a stage performance.

Discussion

[20] We readily accept, of course, that the carrying of offensive weapons in a public place is a serious matter which, in the public interest, is perfectly properly prohibited by section 47 of the 1995 Act and its various predecessors in earlier legislation. However, that prohibition has always been subject to the proviso that the carrying of such an article will not be unlawful if it is done with lawful authority or reasonable excuse. That, in our view, must mean that the legislature has consistently foreseen that there may, from time to time, be circumstances in which a person in possession of an offensive weapon may have an excuse for doing so which can properly be regarded as reasonable. Obviously, as was said by the Lord Justice Clerk in Lister v. Lees, every case will turn on its own facts and circumstances, but that in turn must mean that one cannot in advance prescribe the circumstances which will, or will not, amount to a reasonable excuse. In the course of discussion during the hearing of the present appeal the advocate depute suggested that there might be reasonable excuse in circumstances where a concerned and responsible member of the public had found an offensive weapon in a public place and was merely taking it as quickly as possible to the nearest police station for safe keeping. We agree that there may well be a reasonable excuse in such a case, but that does not mean that a reasonable excuse cannot be found in circumstances of a wholly different kind.

[21] In the present case the advocate depute appeared to attach particular significance to the fact that, in the course of his interview with police officers, the respondent appeared to envisage the possibility of being attacked in the course of his act. That, he submitted, must colour the significance to be attached to his possession of the two batons. For several reasons we have doubts about the validity of this submission.

[22] In the first place, we consider that it sits somewhat oddly with the advocate depute's criticism of the sheriff for having taken into account that there is "no evidence at all which even hints at the suggestion that [the respondent] had any intention of causing harm and injury to other persons". The advocate depute did not submit that this comment was wrong as a matter of fact but, as has been noted above, he maintained that it was an irrelevant consideration. It is not clear to us why the absence of any possibility of harm being caused to others should be regarded as irrelevant while at the same time the existence of such a possibility should be prayed in aid as negativing any contention that there was a reasonable excuse for having the weapons in question.

[23] In any event, however, the passage in the interview which was relied on by the advocate depute related to the spray which was the subject of charge 3; and the answers which were given by the respondent did no more than to suggest that, were there to be a problem, he might use the spray in order to disorientate an attacker so as to facilitate an escape. There is nothing in the answers to suggest that he envisaged using either, or both, of the batons in such circumstances. Moreover, given the abandonment of the appeal in respect of charge 3, we consider that we must now approach what was said by the respondent at the interview on the basis that the spray referred to there was not an offensive weapon. That, in our view, reduces still further any sinister inference that might be attached to what was said by the respondent. We should also add that, on the occasion when the respondent was seen by the police officers, their evidence indicates that there was absolutely no trouble in the Paramount Bar while he was performing. Indeed, Police Officer Duncan is recorded as having said in evidence that the audience seemed to enjoy the act.

Decision

[24] Having given this matter careful consideration, we have come to the conclusion that we can detect no error in the decision reached by the sheriff at first instance. Subject only to the fact that the present case involved the wearing of police uniform and the carrying of batons for the purposes of a professional stripogram performance in licensed premises, while the English case of Houghton involved the wearing of similar attire for the purposes of a fancy dress party, we do not consider that any distinction can be drawn between the two cases; and, essentially for the same reasons as those given by May L.J. in Houghton, we consider that the reason for the respondent having the batons on his person was to add verisimilitude to his fancy dress, and that this amounted to a reasonable excuse for having them with him at the time in question. We say "at the time in question" because, in our view, the present case can be distinguished from the case of McCulloch v. Normand which has been referred to earlier. In that case the appellant was seen with a sword at his belt on the day after he had taken part in a mock battle. Had he been seen by the police on the previous day, when he was just about to enter the site where the battle was to take place, it is at least possible that his intended participation in that event would have been seen as amounting to a reasonable excuse: but that consideration had no continuing significance by the following day. In the present case, by contrast, the respondent was seen by the police officers only minutes before he was scheduled to give his performance. That, in our opinion, is a significant distinction.

[25] Finally, we should mention that, in the course of his submissions, the advocate depute appeared to suggest that a question such as that arising in the present case could not properly be determined at the stage of a submission of no case to answer. That, presumably, was a reflection of the fact that the words "the proof whereof shall lie on him" appear in section 47(1) in relation to reasonable excuse, and that, in the majority of cases, evidence to support the existence of such an excuse will normally come in evidence by the accused or by others called as witnesses on his behalf. At the end of the day, the advocate depute did not seek to press this point: but, in any event, we are satisfied that, in the unusual circumstances of this case, there was enough in the unchallenged evidence led by the Crown to entitle the sheriff, and indeed ourselves, to conclude that the respondent had a reasonable excuse for being in possession of the batons in question on the date, and at the locus, libelled in the complaint.

[26] Accordingly, we shall answer questions 1, 2, 3, 4, 6 and 7 in the Stated Case in the affirmative, and refuse this appeal. Given the abandonment of the appeal in respect of charge 3 on the complaint, it is unnecessary to answer questions 5 and 8.