Inmate loses conviction appeal after prison officers found improvised blade in cell

About this case:

• Citation:
  [2026] HCJAC 8
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

David Cuthill was convicted by a jury of an offence under section 49C(1)(b) of the Criminal Law (Consolidation) (Scotland) Act 1995 after being found in possession of a bladed article in his cell. In his appeal he contended that the sheriff caused irretrievable prejudice by directing the jury under a different offence under section 49C(1)(a) of the Act, of having an offensive weapon in prison as opposed to any other bladed or pointed article, and gave an inappropriate example in illustrating what was meant by the phrase “having with him”.

The appeal was heard in the High Court of Justiciary by the Lord Justice Clerk, Lord Beckett, with Lord Matthews and Lord Clark. Cox, advocate, appeared for the appellant and Cameron KC, advocate depute, for the Crown.

More serious than it was

It was agreed by joint minute that on 25 June 2023 the appellant was allocated to cell A2/18 at HMP Perth. The relevant bladed article, designated as Crown label 1, was a sharp pointed article consisting of a metal point with red tape wrapped around the opposite end to form a grip. Evidence was given by two prison officers who searched the appellant’s cell on that date, one of whom, Mr Crooks, found the article in a box under the appellant’s bed.

Mr Crooks’ evidence was that the appellant had told him that he didn’t know anything about the article he had found. The second prison officer, Mr Costello, recalled that when Mr Crooks asked the appellant about the article, he said that he had it to clean his nails. When the statement by Mr Crooks was put to him, he insisted that on his evidence has he recalled the appellant’s statement as unusual. It was accepted in cross-examination that there was a period of roughly 30 minutes before the search in which any prisoner could have obtained access to the cell.

In the defence speech to the jury, the appellant’s solicitor argued that the issue was whether the words “had with him” had to be construed literally, given that the article was not about the appellant’s person, and the jury had to be satisfied the appellant had knowledge of the item. The trial judge in her directions said to the jury that having an article with the appellant should be understood according to the ordinary meaning of those words, including a close physical link or degree of immediate control. At the conclusion of her directions, the defence solicitor pointed out that she had erroneously given a direction relevant to section 49C(1)(a) and invited her to give the correct direction under section 49C(1)(b), which she did.

For the appellant it was submitted that the initial erroneous direction was liable to make the jury think the charge facing the appellant was more serious than it was, exposing him to grave prejudice which was not cured by the subsequent correct direction. The example the sheriff gave of “having with him”, of a person with a bag on a train, misdirected the jury where the defence had founded on the importance of the appellant’s knowledge in the circumstances of the case.

The Crown submitted that the complaint about the erroneous reference to the wrong offence was groundless as the sheriff had made clear that the jury should disregard her earlier direction. The example given was appropriate to demonstrate that having something with a person does not require it to be on the person physically.

Left open to the jury

Delivering the opinion of the court, Lord Beckett briefly dealt with the first ground of appeal: “There is no merit in the first ground of appeal. Having directed on the wrong offence, the sheriff corrected herself and gave the correct direction on the offence under s 49C(1)(b). There is no possible prejudice and, viewing the charge as a whole, there was no misdirection, far less a miscarriage of justice.”

Considering the merits of the example she gave, he added: “Judges frequently give examples removed from the particular circumstances of a case to illustrate a legal principle. There is nothing wrong in the illustration given by the sheriff. She was responding to a submission to the jury that implied that the appellant required to have the article on his person to have it with him. That was wrong and the sheriff’s illustration was an appropriate one.”

Turning to the effect of the evidence given by the prison officers and the appellant’s alleged remarks, Lord Beckett said: “Mr Costello testified that the appellant said that he used the article for cleaning his nails. That would fix him with knowledge. Whilst this was the subject of criticism in cross-examination and defence submissions, there was no evidence from the appellant to contradict it, and Mr Crooks was not asked about it. Mr Crooks’ evidence of the appellant saying that the article did not belong to him did not advance the appellant’s position. It did not need to belong to him for him to be guilty of the offence. He must have had no awareness of its presence to even begin to allow him a defence of reasonable excuse.”

He concluded: “There was very little evidence of what the appellant had said but it included Mr Crooks’ report of him saying something to the effect that he knew nothing about the article. Had the sheriff introduced the statutory defence there would have been a formal obstacle to acquittal: the requirement for the jury to be satisfied on a balance of probability that the appellant had a reasonable excuse based on his not knowing that the article was in his cell. Instead, the sheriff’s directions left it open to the jury to acquit on an evidential burden only. This was favourable to the appellant. Accordingly, there has been no miscarriage of justice.”

The appeal was accordingly refused.