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Appeal against Conviction by David William Roy Cuthill against His Majesty's Advocate (High Court of Justiciary)
Factual and Procedural Background
The Appellant was tried before a jury at The Court after a short trial and was convicted and sentenced to 8 months' imprisonment for an offence under section 49C(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995, namely having in a prison an article which had a blade or was sharply pointed on 25 June 2023. A joint minute recorded that the article was a sharply pointed metal point about three inches long with red tape on the opposite end and that the Appellant was the only prisoner occupying the cell at the time the article was found. Two prison officers, Witness Crooks and Witness Costello, gave evidence that the article was found in a box under the Appellant's bed (the bed in use) during a routine cell search. Witness Crooks reported the Appellant said he did not know about the item; Witness Costello recalled the Appellant said he used it to clean his nails.
The Appellant appealed against conviction. Leave to appeal was granted on two grounds: (1) that the sheriff caused irretrievable prejudice by initially directing the jury on the wrong offence (s 49C(1)(a) rather than s 49C(1)(b)); and (2) complaints that (i) the sheriff gave an inappropriate illustrative example when explaining the phrase "having with him" and (ii) the sheriff failed to direct the jury on the statutory defence in s 49C(2) where that defence was said to arise on the evidence.
Legal Issues Presented
- Whether the sheriff's initial direction to the jury on s 49C(1)(a) (offensive weapon) before correcting to s 49C(1)(b) (article with a blade or sharply pointed) caused irretrievable prejudice and a miscarriage of justice.
- Whether the sheriff erred by:
- giving an illustrative example (a passenger putting a bag in an overhead rack on a train) when explaining "having with him", and
- failing to direct the jury on the statutory defence in s 49C(2) (reasonable excuse or lawful authority) where the defence was said to be raised by the evidence.
Arguments of the Parties
Appellant's Arguments
- The initial erroneous direction on s 49C(1)(a) was liable to make the jury think the charge was more serious, causing prejudice not cured by the later correction.
- The sheriff's illustrative example (train/overhead rack) was inappropriate because the defence relied on absence of knowledge given the article was in a covered box under the bed; any illustration should have been tied to these facts.
- The sheriff should have directed the jury on the statutory defence in s 49C(2) because the Appellant had put his knowledge in issue (evidence that he said he did not know about the article) and that defence therefore arose on the evidence.
Respondent's Arguments
- The initial misdirection was corrected by the sheriff and caused no prejudice; if anything the initial direction required more to be proved and thus favoured the Appellant.
- The illustrative example was an appropriate response to the defence submission that "have with him" required the item to be on the person; the example demonstrated that "have with him" can include items not physically on the person.
- The statutory defence was not properly founded. There was a reverse (legal) burden on the Appellant to prove reasonable excuse on the balance of probabilities (authorities cited). The evidence did not raise a proper basis for that defence; the prison officers were not officials "investigating an offence" for the purposes of s 261ZA, so reported exculpatory statements could not generally be used to prove the truth of their contents. There was no misdirection or miscarriage of justice.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Crowe v Waugh 1999 JC 292 | That knowledge is not an ingredient of the offence and, if relevant, it arises only in the context of the statutory defence. | Relied on to show the defence's submission that knowledge was an element was incorrect and to support the need for the sheriff to explain "have with him" rather than possession. |
| Hill v HM Advocate [2014] HCJAC 117, 2014 SCCR 659 | Authorities on the ingredients of the offence and the role of knowledge in relation to statutory defences. | Cited with Crowe to support that knowledge is not an element and to justify the sheriff's corrective direction. |
| Donnelly v HM Advocate 2009 SCCR 512 | Principles concerning the legal (reverse) burden on an accused to prove a statutory defence on the balance of probabilities. | Applied to conclude the Appellant bore a legal burden to establish the statutory defence and had not discharged it. |
| Glancy v HM Advocate [2011] HCJAC 104, 2012 SCCR 52 | Authorities on evidential and legal burdens regarding statutory defences. | Used to support the position that an accused must persuade the jury on balance of probabilities to establish the statutory defence. |
| McCutcheon v HM Advocate 2002 SCCR 101 | Law on admissibility of reported statements by an accused (hearsay) and the limited exceptions, including s 261ZA. | Referred to in assessing whether reports of the Appellant's words could be relied on to prove their truth; the court considered McCutcheon binding except for s 261ZA exceptions. |
| Morrison v HM Advocate 1990 JC 299 | Discussion of the res gestae exception to hearsay exclusion. | Referred to in the historical context of res gestae and its continued relevance to admissibility of exculpatory reports. |
| Lord Advocate's Reference (No 1 of 2023) [2023] HCJAC 40, 2024 JC 140 | Authoritative consideration of the meaning and scope of "res gestae". | Cited to explain the concept of res gestae and that it extends beyond the actus reus; used to assess whether the Appellant's reported words fell within that exception. |
| Lord Advocate's References (Nos 2 and 3 of 2023) [2024] HCJAC 43, 2025 JC 200 | Further full-bench authority on res gestae and its limits. | Relied upon in construing res gestae and in considering whether Witness Crooks' report of the Appellant's words on discovery of the item was admissible as evidence to prove fact. |
Court's Reasoning and Analysis
The court began by setting out s 49C(1)–(2). It held that the sheriff's initial direction on s 49C(1)(a) was corrected during the charge and, viewed in context, the correction removed any possibility of prejudice; there was therefore no misdirection or miscarriage of justice on that point.
The court addressed the illustrative example used by the sheriff (the train/overhead luggage example). The court accepted that judges may give examples removed from the precise facts to explain legal principles and concluded the example was an appropriate response to the defence submission that "have with him" required the item to be physically on the person; the illustration therefore did not mislead the jury.
On the statutory defence, the court analysed admissibility of reported statements by the accused. It noted s 261ZA permits certain statements made to officials investigating an offence to be admissible; the court accepted argument that prison officers in this case were not officers "investigating an offence" and thus s 261ZA did not apply. It reviewed McCutcheon and the res gestae authorities and observed that, notwithstanding the general hearsay rule, the report of what the Appellant said on immediate discovery could fall within the res gestae exception and be admissible. The court considered this point but concluded that, even if Witness Crooks' report were admissible as res gestae, the evidence before the jury did not provide a sufficient foundation to require a direction on the statutory defence.
The court emphasised that the statutory defence carries a reverse legal burden on the accused to prove reasonable excuse on the balance of probabilities (citing Donnelly and Glancy). The Appellant had not given evidence, the defence solicitor had not clearly relied on the statutory defence, and the available evidence (including Witness Costello's account that the Appellant said he used the item to clean his nails) tended to fix the Appellant with knowledge. The court concluded there was no proper evidential basis to oblige the sheriff to direct the jury on the statutory defence; and, in any event, the sheriff's directions were overall favourable to the Appellant because she told the jury that any piece of evidence leaving them in reasonable doubt required acquittal.
Holding and Implications
APPEAL REFUSED
Holding: The appeal against conviction was refused. The court found no miscarriage of justice: the initial misdirection was corrected without prejudice; the illustrative example was appropriate; the statutory defence did not arise on the evidence such that omission to direct on it produced a miscarriage.
Implications: The Appellant's conviction and sentence were upheld. The court noted that no new legal principle was established beyond application of existing authorities on "have with him", hearsay/res gestae and the allocation of burdens for statutory defences.
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