Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 27

HCA/2015/2417/XC

Lord Justice General

Lady Paton

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION

by

PAUL CHALMERS

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Mackintosh; McCusker, McElroy and Gallanagh, Paisley

Respondent: R Goddard, Solicitor Advocate, AD; the Crown Agent

 

24 March 2016

[1]        On 10 June 2015, after a 2 day trial at Paisley Sheriff Court, the appellant was found guilty of a charge which libelled that:

“on 17 May 2014, at Wardrop Street, Paisley being a public place you ... did, without reasonable excuse or lawful authority, have with you an offensive weapon, namely two knives;

CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 47(1) as amended ...”.

 

On 8 July 2015, he was sentenced to 2 years and 6 months imprisonment. 

[2]        The evidence for the Crown came from two residents, a mother and son, who lived in George Street, Paisley.  In the early hours of 17 May, they were woken by a noise coming from outside.  Mr Bell spoke to youths running about Wardrop Street, fighting with each other.  He saw the appellant go into a close and reappear with 2 large kitchen knives with long blades, one in each hand.  He was running up the street as if he were chasing someone.  Sometime later, the appellant put the knives beside a wheelie bin.  Mrs Bell also spoke to seeing youths fighting in the street.  She saw the appellant initially without any knives and then noticed him reappearing in Wardrop Street with 2 large kitchen knives, each with a long blade, carrying one in each hand.  He was either charging about, or looked as if he was going to charge about, with the knives.  People were backing away from him.  He was running about as if he was going to stab someone.  It was, she said, really frightening.  The appellant then concealed the knives beside the wheelie bin before the police arrived.

[3]        When he came to charge the jury, the sheriff explained the nature of the charge of having an offensive weapon.  He said that it was not disputed that the appellant had the knives with him.  On dealing with the concept of a public place, he said:

“Here, in the present case, the accused had the weapons in a public place: in a street.”

 

He continued, as follows:

“You heard something about a weapon, an offensive weapon, an offensive weapon is any item made or adapted for causing injury to a person, or intended by the person who has it with him for that purpose ...

            So you heard something about what the different weapons are.  Some weapons are clearly made for causing personal injury: rifles, swords, bayonets, flick knives, coshes.  Some weapons have been adapted to cause personal injury.  Things liked sharpened bicycle chains, a studded belt, a table knife sharpened to a point.  The third category is the normal use of many items that have nothing to do with causing personal harm, things like hammers, bread knives, scissors, cleavers, kitchen knives, baseball bats.  That’s the sort of weapon we are concerned with here: 2 kitchen knives.  2 large knives.  The Crown has to prove that the accused had this weapon with him with the intention of using it to cause personal injury to someone. 

            What his intention was, is something to be inferred from the proved facts and circumstances.  ...  So you look at the facts, what facts have been proved and can you infer from the facts that the knives were intended to be used to cause personal injury.  So for the Crown to prove the charge you would need to be satisfied that one, the accused had the weapon with him, in the sense I’ve described.  Tick: he had the knives; two, the place where he had it was a public place in the sense I’ve described.  Tick: he was in a public place; and three, the weapons, the 2 knives, were intended to cause injury to a person.  There is no tick there, that’s your decision to make: the weapons, the 2 knives, were intended to cause injury with them to a person”.

 

Much of this phraseology is derived from Chapter 54 of the Jury Manual, including the word “weapon”, as distinct from a more neutral “item” or “article”, when describing the third category of offensive weapon.

[4]        The ground of appeal contains the following contention:

“4        Whilst it is accepted that the language used by the learned sheriff in charging the jury about the appellant’s intention was largely derived from the Jury Manual ... the ... sheriff went further than the Jury Manual suggests and specifically directed that the ‘2 kitchen knives’ were ‘the sort of weapon we are concerned with here’ when it was for the jury to decide whether they were offensive weapons in terms of section 47(4) of the 1995 Act”.

 

[5]        This ground was expanded in submissions, under reference to cases concerned with the limited purpose of the Jury Manual, notably WM v HM Advocate 2010 JC 49; Deeney v HM Advocate 2014 SCL 858 at para [19]; and McGartland v HM Advocate 2015 SCCR 192 at para [31].  It was argued that the sheriff had failed to analyse the true legal issue in the case and had adopted directions using inappropriate language, which did not reflect the terms of the statute (Siddique v HM Advocate 2010 JC 110 at para 81).  Section 47(4) defined offensive weapon.  The question of whether a particular article was offensive was for the jury to determine.  The sheriff had told the jury that the knives which the appellant admittedly carried were “weapons”, whereas that was a matter for the jury to decide for themselves.  An analogous situation had arisen in Ashton v HM Advocate 2012 JC 213 where it was held by a majority that the sheriff had erred in directing a jury that the neck of a broken beer bottle, contained in the accused’s jacket, was a an article adapted for use as a weapon.

[6]        The Crown contended that, either looking at the passages in isolation or in context (Walker v HM Advocate 2014 JC 154), there had been no misdirection.  At the stage of the charge, the jury had already had the indictment in which the knives were described as weapons.  They had heard the speeches in which reference to offensive weapons had been made.  The issues had been defined in those terms by both the procurator fiscal depute and the defence agent.  The effect of the use of the word “weapon” in the charge was no more than a direction that the items were weapons in the third category and proof of an intention to cause injury was required.  Reading the charge as a whole and, in conjunction with the speeches made by the parties, it was clear that there had been no usurping of the jury’s function (Gemmill v HM Advocate 1980 JC 16 at 21). 

[7]        In his charge the sheriff made it clear that, for a conviction to follow, the jury required to be satisfied that the accused had “this weapon with him with the intention of using it to cause personal injury to someone”.  He made it clear that the task which faced the jury was to decide whether the appellant’s purpose was to cause injury to a person.  The use of the noun “weapon” was entirely appropriate in the context of someone running about a public street, in the early hours of the morning, brandishing 2 large kitchen knives.  The sole issue for the jury to determine, and which was clearly focused for them by the sheriff, was to determine whether it had been the intention of the appellant to use the knives to cause injury to a person in these circumstances.  The jury must have been satisfied that this had been the appellant’s intention.

[8]        For these reasons, no misdirection occurred and the appeal against conviction must be refused.