For the appellant: Scott QC, sol adv; Capital Defence Lawyers

For the Crown: Ferguson QC, AD; Crown Agent

3 April 2012

Introduction

[1] On 6 September 2011 at Haddington Sheriff Court the appellant was found guilty of being in possession of a knife in a public place without reasonable excuse or lawful authority, contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995.

[2] If the accused should raise the defence of reasonable excuse in such a case, the onus of proof rests with him to establish the defence on a balance of probabilities (Glancy v HM Adv 2012 SCCR 52). Two questions are raised in this appeal; namely whether in such circumstances the trial judge must direct the jury as to the meaning of balance of probabilities; and in any event whether he must direct them that that is a lower standard of proof than proof beyond reasonable doubt.

The evidence

[3] The appellant was detained by police officers in a car park in Musselburgh at the rear of the premises of a veterinary surgeon. At that time the appellant was standing in the car park smoking a cigarette. He had a carrier bag in which there was a golf club.

[4] When the police officers asked the appellant to empty his pockets, he produced from the inside pocket of his jacket a double-edged serrated knife.

[5] The appellant told the officers that he had borrowed the knife from his mother when he had moved house some weeks before, and was now on his way to her house to return it. After leaving his home he had interrupted his journey for some golf practice. He had his dog with him. Then he had gone to the vet for advice about his dog. He had tethered the dog outside. When he came back from the vet, the dog had gone.

[6] The appellant expanded on this account when interviewed at Dalkeith Police Station.

The directions to the jury

[7] The sheriff directed the jury about the burden of proof and the standard of proof that applied when the defence of reasonable excuse was pled. He explained that the evidence led for the accused need not be corroborated. These directions were accurate and appropriate. However, the sheriff did not explain what was meant by the expression balance of probabilities; nor did he say that the standard of proof on a balance of probabilities was a lower standard than that of proof beyond reasonable doubt.

[8] The sheriff also directed the jury that they had to assess whether the appellant's excuse was truthful and whether it was reasonable. The sheriff comments in his report that as the appellant was not making a direct journey to his mother's home, it was open to the jury to convict even if they found that he had taken the knife to return it to her.

The authorities

[9] The short points in this appeal have arisen in two cases. In Agar v HM Adv (2000 GWD 12-421), a prosecution for possession of drugs, this court rejected an appeal taken on the ground that in the charge to the jury the trial judge had failed to define the expression "balance of probabilities." Speaking of that expression Lord Marnoch, who delivered the Opinion of the Court, said

" ... these are simple words and it is difficult to see how their meaning could be improved upon, particularly when it was emphasised - as it was emphasised - that the standard of proof was lower than that applicable to the Crown" (at para [8]).

[10] The same ground of appeal was taken in Glancy v HM Adv (supra), a prosecution for possession of a knife. In that case too the sheriff had not defined balance of probabilities in his charge. Neither the solicitor advocate for the appellant nor the advocate depute in that case cited Agar v HM Adv in argument. This court "initially thought that there might be something to be said" in support of the ground of appeal, but, having come upon the decision in Agar v HM Adv after the hearing, it rejected it (para [13]).

[11] The court in Glancy did not discuss the fact that the sheriff had not told the jury that the standard of proof on a balance of probabilities was a lower standard than that of proof beyond reasonable doubt.

The submission for the appellant

[12] The solicitor advocate for the appellant told us at the outset that he did not propose to argue that in a case like this it is a misdirection to fail to define balance of probabilities. He confined his argument to the proposition that it is a misdirection to fail to tell the jury that proof on a balance of probabilities is a lower standard than the standard that is required of the Crown.

Conclusions

[13] In my opinion, the solicitor advocate for the appellant was right in accepting that a trial judge or sheriff need not attempt to define the expression "balance of probabilities." I agree with Lord Marnoch (Agar v HM Adv, supra, at para [8]) that that expression is a matter of plain English and need not be further defined. It is nonetheless open to the trial judge to observe, as is usually done in England, that the defence will have proved a fact if the jury conclude that it is "more probable than not" or "more likely than not" that the fact existed (cf Archbold, Criminal Pleading, Evidence and Practice (2012), s 4-448).

[14] But I consider that if that is not said, the jury should be told, as is the practice in England, that the standard of proof on a balance of probabilities is lower than the standard of proof beyond reasonable doubt (cf R v Carr-Briant [1943] 1 KB 607, at p 612).

[15] Nevertheless, I am of the opinion that the failure of the sheriff to give this direction did not constitute a miscarriage of justice. The appellant was plainly in possession of the knife. He did not give evidence. His mother confirmed that the knife belonged to her. At the locus and at his interview the appellant gave a detailed account of his movements after he left his home. The substance of that account was accepted by the Crown to be true. I agree with the sheriff that there were two fundamental questions for the jury to consider, namely (1) whether they accepted the appellant's explanation for his being in possession of the knife and (2) whether, if they did, they were satisfied that in the circumstances the explanation constituted a reasonable excuse. I agree with the sheriff that the first issue was primarily one of assessment of the appellant's statements to the police. The facts set out in the appellant's account were not in dispute to any material extent. The jury had to draw inferences from those facts and to assess the appellant's credibility rather than to consider whether those facts were proved on a balance of probabilities. On the second issue, I agree with the sheriff that the question of there being a reasonable excuse had little to do with the standard of proof. In the circumstances I conclude that there was no miscarriage of justice.

Disposal

[16] I propose to your Lordships that we should refuse the appeal.

For the appellant: Scott QC, sol adv; Capital Defence Lawyers

For the Crown: Ferguson QC, AD; Crown Agent

3 April 2012

[17] I agree entirely with your Lordship in the chair and would refuse the appeal.

For the appellant: Scott QC, sol adv; Capital Defence Lawyers

For the Crown: Ferguson QC, AD; Crown Agent

3 April 2012

[18] I agree entirely with your Lordship in the chair and would refuse the appeal.