His Majesty’s Advocate v. Michael Docherty [2023] HCJAC 41

Crown Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The respondent was indicted to the Greenock Sheriff Court on two charges including a charge of contravening section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, namely, having with him in a public place without reasonable excuse or lawful authority an article which had a blade or was sharply pointed, namely, a screwdriver. A preliminary plea was taken on behalf of the respondent in which it was contended that the item recovered from the respondent did not have a blade, nor was it sharply pointed and accordingly the charge was irrelevant as having the article did not contravene section 49(1). The Crown argued against that submitting to the sheriff that the item recovered did have a blade, or a sharp point, or both and, in any event, was the type of item that Parliament intended to prohibit, and using a purposive construction was caught by the relevant section. Following debate the sheriff sustained the plea having viewed the article concerned. The Crown appealed against the decision. Here the court allowed the appeal. The court noted that a preliminary plea to the relevancy focuses on legal issues, the issue being whether the charge must necessarily fail even when sufficient evidence is led to prove the disputed matter. The court stated that the charge was clearly relevant in that it reflected the wording of the relevant section and given some screwdrivers could be caught by the provision the “necessarily fail” test was not satisfied and the case was remitted back to the sheriff to proceed.