11 March 2014
On 4 June 2013, the Kilmarnock Sheriff Court returned a guilty verdict, ruling that the appellant, David Ingham:
“on 18 March 2012 at Her Majesty’s Prison, Kilmarnock …did, without lawful authority or reasonable excuse, have…an article which had a blade or was sharply pointed, namely a sharpened piece of plastic; CONTRARY to section 49C(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995.”
Two prison officers had discovered the blade hidden under the insole of the appellant’s trainers. At this time, the appellant was segregated and no other prisoner had access to his cell. The appellant nevertheless denied ownership of the item and claimed it had been ‘planted’.
Ingham was sentenced to a further 18 months imprisonment, on top of his 8 years’ extended sentence.
The Note of Appeal, lodged on 7 August 2013, alleged misdirections in connection with the offence and argued that a reasonable jury would have acquitted Ingham. The sifting judge denied an appeal based on these misdirections, but commented:
“It is arguable that there was insufficient evidence to entitle a jury to find the appellant had the weapon with him in terms of s 49C(1). In that there was no evidence to entitle a finding that he had a close physical link to the weapon or immediate control over it, or that he had ‘ready’ access to the weapon at the material time”.
On 11 October 2013, the court allowed an appeal on these new grounds. The appellant’s new appeal rested on two claims: firstly, the appellant had been ‘thoroughly searched’ when moved to the segregation unit; secondly, the plastic cutlery used to fashion the blade could only have come from the general area of the prison. The defence referenced Smith v Vannet 1998 SCCR 410 and R vPawlicki  1 WLR 827 at 832, arguing that there was insufficient evidence of a connection between Ingham and the makeshift blade.
The court found that, in fact, there was no evidence of a ‘thorough’ search of Ingham on his transfer to the segregation unit and that there was nothing to suggest the plastic cutlery was only available in the general area of the prison. Resultantly, the appeal against conviction was refused.