Mark Ashton v. Her Majesty's Advocate [2011] HCJAC 124

Criminal Note of Appeal Against Conviction:- On 26 January 2011 at Glasgow Sheriff Court, the appellant was found guilty unanimously and by direction of the trial sheriff of a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, namely, having with him an offensive weapon, a broken bottle, in a public place without lawful authority or reasonable excuse whilst on bail. On 21 February 2011, the appellant was sentenced to eight months imprisonment from 14 October 2010. The appellant appealed against his conviction on the grounds that the sheriff misdirected the jury that the broken bottle which was the offensive weapon referred to was per se an item which had been adapted for causing personal injury, and, further, that it was a matter for the jury to consider whether or not the bottle had been broken for the purpose of being capable of being used to cause personal injury. Here it was submitted on behalf of the appellant that the question as to whether the broken bottle was an article made or adapted for use for causing injury to a person was one of fact which should have been left to the jury to determine. It was further submitted that simply because a bottle was broken did not necessarily mean that it had been either made or adapted for use for causing injury to a person, because, for example, if a member of staff in a public bar picked up a broken bottle it would automatically be held to be an offensive weapon. On behalf of the Crown it was submitted that if a person is in possession of a broken bottle he is in possession of an offensive weapon for the purposes of section 47 of the 1995 Act and if the person has such an article in a public place he must rely on the defence of reasonable excuse or lawful authority contained in section 47(1A) to avoid committing an offence. Here the court considered whether the broken bottle in the possession of the appellant in a public street was obviously a weapon adapted for use for causing personal injury.