Bruce Smith v HM Advocate

10th April 2014

Background

On 3rd September 2013, Mr Bruce Smith was convicted of of having offensive weapons in his possession without a reasonable excuse.

Since Mr Smith had bought these weapons while on holiday in Cyprus and was bringing them home to keep as souvenirs, the defence submitted a defence of reasonable excuse. Reference was made to McGuire v Higson 2003 SLT 890.

However, the sheriff rejected the defence saying:

“I concluded that the case of McGuire v Higson could be distinguished. In that case the accused had been apprehended in the street immediately outside the shop where the item had been purchased.

“However, the circumstances in the appellant’s case were different. I took the view that possession of weapons in a public place did not fall to be automatically covered by a cloak of “reasonable excuse” simply because at the relevant time the person concerned was in the course of a journey which would end up at home. That would be in effect to grant safe passage through the country for weapons of this kind with no legitimate purpose brought in from abroad.”

Appeal

Mr Smith’s appeal, claimed the sheriff had erred in failing to correctly consider the appropriate time in conjunction with the reasonable excuse defence. The question, posed the appeal, was whether, at the time when Mr Smith was stopped in Aberdeen Railway Station, the appellant had a reasonable excuse.

The defence referred to McGuire v Higson and submitted that the sheriff had incorrectly suggested that the authority of the defence lay in the close temporal connection between purchase and possession. Additionally, he claimed the sheriff was wrong to introduce consideration of offences that may have been committed by bringing items into the UK at Newcastle.

The appeal, therefore, was one of reasonable excuse. The appellant was taking the items home to keep them as souvenirs and this was accepted by the sheriff but the conviction was handed out anyhow.

Conclusion

The judge agreed with the defence regarding potential offences that may have been committed in bringing the items into the country and as such focused solely on the matter of reasonable excuse.

Speaking of the central claim of the appeal, Lady Smith said:

“I consider that the findings in fact show that the appellant had advanced a reason which the sheriff accepted as genuine and credible and which, in all the circumstances, had to be accepted as constituting a reasonable excuse for being found to have the items in his possession in Aberdeen Railway Station. The fact that he had broken his journey the night before or the sheriff’s evident concern – however natural and understandable – about weapons brought in from abroad being given safe passage through the country or about the nature of these particular weapons, were not relevant considerations. They could not assist when determining what was the position, on the particular facts of this case, at the time the appellant was stopped at the railway station.”

Lady Smith concluded that the appeal was valid and claimed she would quash the conviction. Lady Clark of Calton also agreed with the findings of Lady Smith and considered the appeal should be allowed and the conviction quashed.

However, Lord Philip chose to refuse the appeal, stating: “Applying the ordinary meaning of the words “reasonable excuse” I am unable to say that in the circumstance of this case the sheriff erred in finding that none existed.

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