Res gestae admission of prisoners’ spontaneous denials to prison officers; no automatic need for s 49C(2) “reasonable excuse” directions on a bare evidential footing

1) Introduction

This is an appeal against conviction in David William Roy Cuthill v His Majesty’s Advocate ([2026] HCJAC 8), decided by the Scottish High Court of Justiciary (Appeal Court) on 3 March 2026. The appellant was convicted after trial at Dunfermline Sheriff Court of an offence under section 49C(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995: having “in a prison” an article “which has a blade or is sharply pointed”.

The sharply pointed item (an improvised weapon) was found during a routine cell search in HMP Perth, said to be in a box under the appellant’s bed. The defence position at trial focused on whether the appellant “had with him” the article and emphasised lack of knowledge, given potential (albeit limited) access by others earlier that day.

The appeal raised three main complaints: (i) an initial misdirection on the wrong subsection (s 49C(1)(a), offensive weapon) before correction; (ii) a contested illustrative example used by the sheriff when directing on “having with him”; and (iii) failure to direct on the statutory defence in s 49C(2) (lawful authority/reasonable excuse) once knowledge was put in issue.

2) Summary of the Judgment

  • Wrong-offence direction cured: the sheriff’s initial reference to s 49C(1)(a) was corrected in the charge; read as a whole, there was no misdirection causing prejudice or miscarriage of justice.
  • Illustration of “have with him” approved: the “bag on a train” example was a legitimate way to correct the defence suggestion that the item must be physically “on” the accused.
  • No error (and no miscarriage) in omitting s 49C(2) directions: on the evidence and how the case was run, there was no sufficient basis requiring a reasonable-excuse direction. In any event, the sheriff’s approach was favourable to the appellant: the jury were told that any exculpatory evidence raising reasonable doubt required acquittal, whereas s 49C(2) carries a reverse burden on the accused on the balance of probabilities.
  • Important evidential point: s 261ZA did not apply (prison officers were not “official[s] investigating an offence” and were not investigating an offence), but the appellant’s contemporaneous response when challenged about the freshly discovered item was treated as potentially admissible as res gestae.

Result: Appeal refused.

3) Analysis

3.1 Precedents Cited

(a) Knowledge is not an element of “having with him” under s 49C(1)

The Crown relied on Crowe v Waugh 1999 JC 292 and Hill v HM Advocate [2014] HCJAC 117, 2014 SCCR 659 (at [9]-[11]) to support the proposition that for offences framed as “has with him” a prohibited article, the Crown need not prove knowledge as a constituent element of the actus reus. Knowledge may still be relevant, but typically only through the statutory defence structure.

That shaped the court’s evaluation of the sheriff’s directions: it was proper for her to correct the defence’s drift toward a “possession requires knowledge and control” formulation and to refocus the jury on “ready availability”/immediate control rather than ownership or subjective awareness as a formal ingredient.

(b) Reverse burden for statutory defences: the balance of probabilities

The court accepted the Crown’s reliance on Donnelly v HM Advocate 2009 SCCR 512 and Glancy v HM Advocate [2011] HCJAC 104, 2012 SCCR 52 for the proposition that where a statutory defence is framed as “it is a defence… to show…”, the accused bears a legal burden to establish it on the balance of probabilities.

This mattered in two ways:

  1. It raised the threshold question: was there evidence capable (not merely of raising doubt) of positively persuading a jury that the appellant lacked knowledge and therefore had a “reasonable excuse”?
  2. It underpinned the court’s conclusion that the sheriff’s actual directions were, if anything, more favourable than a correct statutory-defence direction would have been.

(c) Accused’s statements: hearsay limits, s 261ZA, and res gestae

The court applied McCutcheon v HM Advocate 2002 SCCR 101 as the modern statement of the general rule: an accused’s exculpatory out-of-court statement is ordinarily inadmissible as proof of its truth (secondary hearsay), though it may be admissible as primary hearsay to show the statement was made or the accused’s reaction/attitude. McCutcheon also preserves the “mixed statement” exception where the Crown leads incriminatory parts of a statement, allowing the defence to elicit qualifying parts.

The appellant attempted to build a statutory-defence platform on what was said to prison officers. The Crown argued (and the court agreed) that section 261ZA of the Criminal Procedure (Scotland) Act 1995 did not assist: the prison officers were not “official[s] investigating an offence”, and in any event the search and questioning were not part of an offence investigation. The court also noted the regulatory framework (Prisons and Young Offenders Institutions (Scotland) Rules 2011) as not providing for prison officers to investigate criminal offences in the relevant sense.

However, the court then introduced a significant nuance. Drawing on Morrison v HM Advocate 1990 JC 299 (including its discussion of Hume) and the modern res gestae authorities—Lord Advocate's Reference (No 1 of 2023) [2023] HCJAC 40, 2024 JC 140 and Lord Advocate's References (Nos 2 and 3 of 2023) [2024] HCJAC 43, 2025 JC 200—the court reasoned that where the offence is continuing and the utterance is part of “the whole transaction or circumstance”, the res gestae doctrine may permit admission of the statement for its truth.

Applying that framework, the court treated the appellant’s response when confronted with the freshly discovered item as falling within res gestae, because the offence was continuing while the item was in the cell and at the moment of discovery and immediate questioning.

3.2 Legal Reasoning

(a) Correcting an initial wrong-subsection direction

The court assessed the charge “as a whole”. An initial slip directing on s 49C(1)(a) was immediately corrected after it was highlighted, and the jury were redirected to the correct offence under s 49C(1)(b). The appeal court held there was no realistic risk of juror confusion persisting to verdict and therefore no miscarriage.

(b) The meaning of “have with him” and the permissibility of general illustrations

The sheriff’s “bag on a train” example was upheld as a legitimate illustration that “having with you” does not require literal physical contact with the item. The court stressed that judges may properly use examples removed from the particular facts to communicate a legal concept, especially where necessary to neutralise an erroneous defence submission.

The court’s approach implicitly reinforces that “have with him” in s 49C(1) is directed to ready availability / immediate control rather than (i) ownership, (ii) a “possession” analysis importing knowledge as a required element, or (iii) purely spatial proximity without any meaningful control.

(c) When must a sheriff direct on the s 49C(2) statutory defence?

The court treated the question as contextual: even where a statutory defence exists, a direction is not automatic unless there is a sufficient evidential basis. Here, the appellant did not testify; the defence did not clearly articulate reliance on s 49C(2); and the evidence said to support “no knowledge” was thin—largely an affirmative answer to a leading question, with no clear reproduction of the appellant’s actual words.

The court also weighed contrary evidence: Mr Costello’s account that the appellant said he used the item to clean his nails (which would strongly support knowledge). Against that background, the court was not persuaded that the evidential foundation was capable of meeting the accused’s balance of probabilities burden.

Crucially, even if a statutory-defence direction should have been given, the court held there was no miscarriage because the sheriff’s actual directions made acquittal easier than the statute would: the jury were told they must acquit if any evidence (including anything said by the appellant) left them in reasonable doubt, rather than requiring the appellant to “show” reasonable excuse on balance.

3.3 Impact

  • Res gestae in custodial “continuing offences”: the decision signals that an accused’s immediate response when a prohibited item is discovered in prison may be admissible for its truth as part of the res gestae, even where s 261ZA does not apply. This is likely to influence evidential disputes in prison contraband prosecutions where statements are made contemporaneously with discovery.
  • Limits of s 261ZA: the court’s reasoning narrows the prospects of treating routine prison questioning as “questioning… by… [an] official, investigating an offence”. Unless police (or genuine offence investigators) are involved, s 261ZA will often be unavailable.
  • Statutory defence directions and appellate strategy: the case illustrates a practical appellate hazard: where a statutory defence carries a reverse burden, a failure to direct on it may be non-prejudicial (or beneficial) if the jury were instead directed on a simpler reasonable-doubt route to acquittal.
  • Trial directions on “have with him”: the decision supports clear directions that “having with him” is broader than “on the person”, helping standardise jury charges in weapon-in-prison cases.

4) Complex Concepts Simplified

“Have with him” (s 49C(1))
A practical test focusing on whether the item is with the accused in a way that makes it readily available / within immediate control in the prison—without requiring it to be held, worn, or carried in clothing.
Statutory defence and “reverse burden” (s 49C(2))
Instead of the Crown having to disprove the defence beyond reasonable doubt, the accused must prove the defence on the balance of probabilities (i.e., more likely than not). That is why a statutory-defence direction can sometimes be a higher hurdle for the defence than simply arguing “reasonable doubt”.
Hearsay; primary vs secondary hearsay
Hearsay is evidence of what someone said outside court. An accused’s own denial is generally not admissible to prove it is true (secondary hearsay), but may be admissible to show the denial was made or to show reaction/attitude (primary hearsay), unless a recognised exception applies.
s 261ZA (Statements by accused)
A statutory route allowing certain accused statements to be used as proof of facts within them, but only where made during questioning by police (or an official) who is investigating an offence. Routine prison searches and immediate safety questioning will not necessarily qualify.
Res gestae
An evidential doctrine admitting statements made as part of the event/transaction itself (“the whole transaction or circumstance”), sometimes including utterances closely connected in time and context to an ongoing offence.

5) Conclusion

[2026] HCJAC 8 is significant less for its disposal of routine misdirection complaints and more for its treatment of evidential doctrine in the prison context. The court reaffirmed that knowledge is not an ingredient of the s 49C(1)(b) offence, that s 49C(2) carries a reverse burden on the accused, and that s 261ZA will not readily apply to prison officers acting in routine safety searches.

Most notably, the court indicated that an accused’s immediate response upon discovery of contraband in prison may fall within the res gestae exception and be admissible for its truth—an approach likely to affect how both Crown and defence frame (and evidence) contemporaneous explanations or denials in future prison-contraband prosecutions.