APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Sheriff Principal C G B Nicholson CBE, QC Sheriff Principal B A Lockhart	[2009] HCJAC 30 Appeal No: INFO OPINION OF THE COURT delivered by LADY PATON in NOTE OF APPEAL AGAINST CONVICTION by THOMAS WILSON Appellant; against THE PROCURATOR FISCAL, ABERDEEN Respondent: _______

Appellant: C. M. Mitchell, Advocate; McClure Collins (for Aberdein Considine & Co, Aberdeen)

Respondent: D. Young, Advocate Depute; Crown Agent

28 November 2008

Introduction

[1] The appellant was born on 21 May 1987. On 2 July 2008, he was convicted in the district court of being in premises with the intention to commit theft contrary to section 57(1) of the Civic Government (Scotland) Act 1982. He subsequently appealed, contending that there was insufficient evidence. At the appeal hearing, this court quashed the conviction. We now give our reasons.

The Stated Case: findings-in-fact and additional information

[2] In the Stated Case, the Justice of the Peace puts the following questions:

"On the facts stated, was it reasonable for me to infer that the appellant had entered the premises intending to commit theft?

On the facts stated, was I entitled to convict the appellant?"

[3] The findings-in-fact are noted as follows:

"1. Optimax Laser Eye Clinic, 2 Golden Square, Aberdeen is a Laser Eye Surgery within a terraced building. It is situated on 2 floors there. At approximately 1700 hours on Wednesday, 12 March 2008, witness Mary Fear who is employed as a Clinic Manager at the locus secured the locus and switched on the alarm system. The sash window of the second floor staffroom was closed by her although not locked.

2. At 0317 hours on Thursday, 13 March 2008, witnesses Police Constable Shaun Fowler and Gavin Ash, both of Grampian Police, were on uniformed mobile patrol when they were directed to attend the locus where the security alarm for Optimax Laser Eye Clinic had been activated. On attendance they were met by witness Frederick Lord who is a security guard whose duties include attending alarm activations at the locus. Witness Frederick Lord pointed out that a small sash window on the second floor was open.

3. Witnesses Lord and Constables Fowler and Ash made a search of the locus and on entering the staffroom on the second floor, noted that the window there appeared undamaged but that there were traces of dirt on the window sill. On opening a cupboard below the window, the witnesses found the appellant lying down within a gap between the floor and shelving.

4. The appellant was later cautioned and charged as libelled in the complaint. He intimated that he understood and replied, 'I really did not intend to steal anything.'

5. No items had been moved or disturbed within the locus.

6. The appellant had no lawful authority for being on the premises and from the circumstances, I inferred that he had entered the building intending to commit theft."

[4] Additional information relating to the circumstances surrounding the alleged offence can be found elsewhere in the Stated Case. For example, the justice records some of the evidence which he heard at the trial. He notes that Constable Fowler stated that it was obvious that the appellant had entered the building through the second floor dormer window, and that the appellant must have come over the spiked railings at the front of the building, then scaled the wall by means of a drainpipe before crossing five to six feet along the roof-top at a height of some sixty feet above the ground. The justice further notes that the appellant gave evidence, and told the court that he was aged 20, and was a student of marine biology. He had no previous convictions, and considered himself to be of good character. On the night in question, he had been drinking since about 5 pm and could recall nothing after walking into town at approximately 10 pm. He was woken by the police opening the cupboard and was still quite drunk when he was cautioned and interviewed. He stated that he was an experienced climber and had climbed buildings before, but he admitted that when he sobered up he was very worried. (The justice understood him to mean that he was worried by the fact that he had endangered himself by undertaking such a climb when drunk.) The appellant was surprised to be charged, because he had no intention of stealing anything.

[5] Yet more information was contained in a Joint Minute agreed between the Crown and the defence, which was quoted in full in the Stated Case. That Joint Minute contained inter alia the following paragraphs:

" ... 3. At 0345 hours on Thursday, 12 March 2008, at the locus, the accused was cautioned and detained in terms of Section 14 of the Criminal Procedure (Scotland) Act 1995 regarding theft by housebreaking. He intimated that he understood and replied, 'I surrender'.

4. At 0535 hours on Thursday, 13 March 2008, at Police Headquarters, Queen Street, Aberdeen, the accused was cautioned and interviewed by witness Constable Fowler in the presence of witness Constable Ash as follows:-

Q: I am making enquiries into an incident that occurred at Optimax, 2 Golden Square, Aberdeen, earlier this morning. Do you understand?

A: Yes, I understand.

Q: Can you confirm for me that you were found lying down within a cupboard in a room on the second floor of the building at 2 Golden Square, Aberdeen, earlier this morning?

A: Unfortunately, yes.

Q: Can you tell me what [sic] you were there?

A: I believe it was some sort of short cut.

Q: Can you explain this?

A: I was just wandering around not entirely in my right mind, with no malicious intent.

Q: Have you been drinking alcohol?

A: Yes.

Q: How much have you drunk tonight?

A: No idea but I had been drinking since about five pm yesterday.

Q: How did you get into the building where we found you?

A: I honestly can't remember.

Q: Can you remember anything at all about getting into the building?

A: No.

Q: What is the last thing you remember?

A: The last thing I remember is walking into town about ten pm yesterday.

Q: Once within the building what did you do?

A: I think I wandered around in the building.

Q: What were you doing in the cupboard when we found you?

A: Sleeping I think.

Q: Did you enter the building for any purpose?

A: Nope.

Q: Did you move any items within the building?

A: None.

Q: Can you remember what rooms you went into?

A: No, I think I was just in the room you found me in.

Q: So what you are saying is that you did not leave that room?

A: Not that I know of.

Q: Did you hear the alarm system go off?

A: No.

Q: The alarm system was activated at the building. There are no sensors within the room you were found in. In order for the alarm system to activate the sensors outwith that room must be triggered. Can you explain this?

A: No.

Q: Did you enter the locus alone?

A: Yes.

Q: Did you steal anything from within the locus?

A: No.

Q: Was it your intention to steal from within the building?

A: Nope.

Q: So what were you doing there?

A: I think it was my intention to find somewhere to sleep.

Q: So you cannot remember how you got into the building?

A: No, actually, no.

Q: Are you adept at climbing?

A: I am. It's one of my favourite hobbies. I free-climb.

Q: How long have you been doing this for?

A: As long as I can remember.

Q: So climbing sixty feet up a vertical drainpipe would not be a problem for you?

A: No.

Q: Apart from alcohol have you taken anything else recently?

A: No.

Q: Have you ever wakened up in any other buildings before?

A: No.

Q: Do you have any knowledge of doing something similar before?

A: Yes, I have climbed up buildings before.

Q: Have you come to the attention of Police for similar activities before?

A: No.

Q: Have you ever been within the building we found you in before?

A: No.

Q: Do you wish to add anything?

A: No.

Q: The cupboard that you were found within. When we arrived the doors were shut. Why did you close the doors?

A: Only to sleep. I had no idea you were even within the building.

At 0605 hours on Thursday, 13 March 2008, at Police Headquarters, Queen Street, Aberdeen, the accused was cautioned and charged with housebreaking with intent to steal. He intimated that he understood that charge and replied, 'I did not intend to steal anything'.

At 0606 hours, same day, the accused was then cautioned and charged as libelled in the complaint. Again he intimated that he understood and replied, 'I really did not intend to steal anything'...."

Submissions for the appellant

[6] Counsel for the appellant submitted that the findings-in-fact did not support an inference of intention to steal. The justice had failed to take into account all the circumstances surrounding the appellant's presence in the building, including the fact that he was a young man without previous convictions, a university student with climbing experience, very drunk, who had climbed sixty feet up the outside of a building, and who had been found in the staff-room of an optometrist's clinic (and not, for example, in an area where merchandise was available to be stolen). Had the appellant intended to steal, there were many easier ways of committing theft. The whole circumstances surrounding the appellant's presence tended to negate the inference of an intention to steal. Even if the justice did not accept any of the appellant's explanations, the circumstances were insufficient to permit an inference of intention to steal to be drawn. The appeal should be allowed, the questions in the Stated Case answered in the negative, and the conviction quashed.

Submissions for the Crown

[7] The Advocate Depute contended that the magistrate was entitled in the circumstances to draw the necessary inference. The Crown founded upon three particular circumstances (although it had to be conceded that not all of those circumstances were included in the findings-in-fact). First, the appellant must have overcome significant barriers in order to get into the building as he did. Secondly, the appellant had entered the building in a clandestine way: the time and place of entry were particularly significant. Thirdly, the appellant then concealed himself in a cupboard. Reference was made to McBurnie v McGlennan 1991 SCCR 756 at page 759, and Frail v Lees 1997 SCCR 354. The justice was entitled to reject the appellant's explanations. The findings-in-fact, although brief, contained matters sufficient to raise the inference of intention to steal, namely the fact that the building was secured, yet the appellant was found concealed in a cupboard on the second floor of the building in the early hours of the morning. The appeal should be refused.

Discussion

[8] Section 57(1) of the Civic Government (Scotland) Act 1982 provides:

"Any person who, without lawful authority to be there, is found in or on a building or other premises, whether enclosed or not, or in its curtilage or in a vehicle or vessel so that, in all the circumstances, it may reasonably be inferred that he intended to commit theft there shall be guilty of an offence and liable, on summary conviction, to a fine ...or to imprisonment ..."

[9] As Lord Sutherland observed in Frail v Lees 1997 SCCR 354:

"Of course it is true that the locus is of the essence of the charge, in so far as the charge says you were found at a particular place, and obviously the Crown would have to prove that the accused was indeed found at that particular place. But the rest of the charge deals with the matter of inference to be drawn from the presence at the particular locus, and that inference which is referred to is prefaced by the words 'in all the circumstances'. In our view, quite clearly all the circumstances include circumstances which may have taken place some distance away from the locus, but which are circumstances from which an inference may properly be drawn that the appellant intended to commit theft at the particular locus in the charge."

[10] Further, McBurnie v McGlennan 1991 SCCR 756 makes it clear that where an intruder's explanation is not believed, the court must nevertheless examine all the remaining circumstances in order to assess whether they are sufficient to prove beyond reasonable doubt an intention to commit theft.

[11] It was accordingly necessary for the justice to take into account and reach conclusions on all the relevant evidence, whether given orally at the summary trial or contained in the Joint Minute, and to record those conclusions in the findings-in-fact. Importantly, all the facts upon which the court sought to rely when drawing the inference of intention to steal required to be clearly stated in the formal findings-in-facts.

[12] In the present case, the findings-in-fact do not record whether or not the justice accepted any or all of the following facts as proved: the appellant was aged 20 at the time of the alleged offence; he had no previous convictions; he was a marine biology student, studying at university; he was a keen climber who could climb without a safety harness; he had climbed buildings before; he had been drinking since 5 pm the previous evening, and he could recall nothing after walking into town at approximately 10 pm. In our view, it was essential for the justice to make findings-in-fact on at least those matters (and possibly further surrounding circumstances), before attempting to draw any inference to the standard beyond reasonable doubt in terms of section 57(1). In particular it might be thought that additional findings-in-fact relating to the matters mentioned above, taken with the findings-in-fact already made, could give rise to an inference of a drunken, irrational, inexplicable, but ultimately innocent escapade on the part of an inebriated young student of previous good character with considerable climbing skills. It would then be important for the justice to explain why, in all the circumstances, an inference of guilt could nevertheless be drawn. The findings-in-fact do not deal with those matters, and as a result we consider that the factual basis upon which the justice was operating was incomplete and did not represent "all the circumstances" surrounding the appellant's presence in the premises.

[13] In the result therefore we consider that the findings-in-fact do not disclose the whole picture, and are insufficient to support the conviction. It is unnecessary for us to give a view about the possible outcome had the findings-in-fact properly reflected all the circumstances surrounding the appellant's presence in the premises. For the reasons given above we answered the two questions in the negative, allowed the appeal, and quashed the conviction.