APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Mackay of Drumadoon Lord Bonomy	[2011] HCJAC 34 Appeal No: XJ973/10 OPINION OF THE COURT delivered by LORD REED in the Appeal under section 174 of the Criminal Procedure (Scotland) Act 1995 by PAUL JOSEPH THOMSON Appellant; against PROCURATOR FISCAL, ABERDEEN Respondent: _______

Appellant: Shead; George Mathers & Co

Respondent: Brodie QC, AD; Crown Agent

16 March 2011

Background

[1] The appellant has been charged by a summary complaint at the instance of the respondent with a contravention of section 58(1) of the Civic Government (Scotland) Act 1982. In advance of trial, the appellant lodged a devolution minute, in which he submitted that section 58(1) was incompatible with Convention rights, and that the prosecution was therefore incompetent by reason of section 57(2) of the Scotland Act 1998. At the subsequent hearing before the Sheriff, it was common ground that section 58(1) imposed a legal burden upon the person accused to demonstrate satisfactorily that his possession of the tool or object in question was not for the purposes of committing theft. The submission on behalf of the appellant was that section 58(1) was therefore incompatible with the presumption of innocence and the right of silence guaranteed by Article 6 of the European Convention on Human Rights. It could however be "read down", in accordance with section 3 of the Human Rights Act, so as to impose only an evidential burden upon the accused. If the provision could not be so interpreted, then the complaint should be dismissed. The submission on behalf of the Crown was that the legal burden imposed by section 58(1) was proportionate and justified, in view of the nature of the offence in question. The Sheriff, proceeding on the basis that the provision imposed a legal burden upon the accused to demonstrate satisfactorily that his possession of the object was not for the purposes of committing theft, held that the imposition of that burden was justified and proportionate. He accordingly refused to dismiss the complaint. The appellant has appealed against that decision.

The relevant law

[2] Section 58 of the 1982 Act as amended provides:

"(1) Any person who, being a person to whom this section applies -

(a) has or has recently had in his possession any tool or other object from the possession of which it may reasonably be inferred that he intended to commit theft or has committed theft; and

(b) is unable to demonstrate satisfactorily that his possession of such tool or other object is or was not for the purposes of committing theft

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale or to imprisonment for a period not exceeding 3 months or to both.

....

(4) This section applies to a person who has two or more convictions for theft which are not, for the purposes of the Rehabilitation of Offenders Act 1974, spent convictions."

[3] In Mathieson v Crowe 1993 SCCR 1100, this court stated, at pages 1103-1104:

"Having regard to these provisions, it is plain that for a successful prosecution under section 58(1) the Crown have to establish three separate things. First, they must show that the accused has the necessary two or more convictions for theft; next they must show that he has or has recently had in his possession any tool or other object in circumstances from which it can reasonably be inferred that he intended to commit theft or had committed theft; and finally it must be shown that the accused was unable to demonstrate satisfactorily that his possession of such tool or other object was not for the purposes of committing theft."

That dictum was treated as an accurate statement of the law in the subsequent cases of Phillips v Macleod 1995 SCCR 319 and Docherty v Normand 1996 SCCR 701. In the latter case, the court reiterated (at page 707B) that the accused's inability to demonstrate satisfactorily that his possession of the tool or other object is or was not for the purposes of committing theft was "one of the three things that must be established to show that he was guilty of the offence."

Discussion

[4] It follows from these authorities, as was submitted on behalf of the appellant and conceded on behalf of the Crown, that the accused's inability to demonstrate satisfactorily that his possession of the tool or other object is or was not for the purposes of committing theft is one of the three essential elements of an offence under section 58(1). It follows that it is a matter which must be proved beyond reasonable doubt by the Crown. If there is a reasonable doubt in relation to that matter, whether it arises from the evidence led by the Crown or from any evidence led by the defence, it follows that the accused must be acquitted. There is no legal or evidential burden on the accused.

[5] Against that background, it is apparent that the discussion before the Sheriff proceeded on a basis which was misconceived. The Sheriff's decision to refuse to dismiss the complaint was correct, but was reached on an erroneous basis. In these circumstances, we shall refuse the appeal and remit to the Sheriff to proceed in accordance with the present opinion.