Man who possessed knife in public for purposes of suicide loses appeal against conviction

About this case:

• Citation:
  [2022] SAC (Crim) 6
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Marysia Lewis

The appellant, AM, was charged by the Procurator Fiscal in Airdrie of having a knife in a public place without a reasonable excuse or lawful authority. He challenged the conviction on the ground that the sheriff had erred in holding that the statutory defence of reasonable excuse was not proved.

The appeal was heard by Sheriffs Principal Marysia Lewis and Nigel Ross, and Appeal Sheriff Alasdair MacFadyen. W Hay, advocate, and R Brown, solicitor advocate, appeared for the appellant and A Edwards QC for the Crown.

English cases 

On the afternoon of 22 February 2020, the appellant, who had a long history of mental health issues, decided to kill himself in Kildrum Woods using a knife. On the way to his destination, he telephoned NHS 24, which led to the police being alerted. The police found the appellant walking along a public footpath next to Cumbernauld High School holding the knife and took him to a hospital. The appellant did not injure or attempt to injure any members of the public with the knife.

The sheriff concluded that the appellant had no reasonable excuse for possession of the knife and admonished him. In doing so he had regard to three English cases: Bryan v Mott (1976), R v Norton (1977), and R v Fleming (1989), with no Scottish authority being available on the point, which led him to determine that the statutory defence of reasonable excuse was not available to an individual contemplating suicide through the use of a knife.

Counsel for the appellant submitted that the sheriff had relied too heavily upon the English cases, which were of considerable antiquity. These were of no relevance to the appropriateness of criminalising those who are suicidal, having regard to modern understandings of trauma and mental health. The purpose of the legislation was to protect the public from risk of injury, which there was no evidence of in this case.

It was submitted for the Crown that the sheriff had not erred in any respect and set out his reasoning clearly. Whether a prosecution ought to have been brought against the appellant at all was a different issue and not one for the Sheriff Appeal Court to consider.

Care and sensitivity

Delivering the opinion of the court, Sheriff Principal Lewis said of the 1995 Act: “We acknowledge that the purpose of the 1995 Act is to protect the public from the risk of injury from those who may use articles to cause injury or to threaten others. Section 49(1) contains a clear prohibition. Subsection (4) provides a statutory defence of reasonable excuse. It was not disputed that the burden of proving the section 49(4) defence rests on the appellant and that the burden of proof is on the balance of probabilities.”

She continued: “The tasks facing the summary sheriff were to consider whether the statutory defence was available and then whether the evidence supports the statutory defence. The summary sheriff, in our view, approached those tasks with care and sensitivity. He had due regard to the legislative regime. He carried out a careful review of the English authorities and in each he considered the facts, the applicable legislation and drew appropriate distinctions.”

Considering the English authorities referred to, the Sheriff Principal said: “We have not found assistance in consideration of the English cases referred to. They are of limited authority, of considerable age, and can readily be distinguished. We consider that the excuse of attempted suicide is inconsistent with the purpose of the 1995 Act, which is to prevent the carrying of knives in a public place. There is nothing inherently inconsistent with an intent to self-harm on the one hand and posing a danger to the public on the other.”

She concluded: “In the present case the appellant was arrested on a public footpath next to a school, walking with his arms outstretched and a knife in his left hand. Whatever his underlying intention, there was no reasonable excuse for his possession of the knife in those circumstances and at that locus. Further, his intended destination was a nearby wooded area, a public place. We are not persuaded that carrying a knife for the purposes of committing suicide in a public place is an inherently reasonable act.”

The court therefore concluded that the sheriff had not erred in considering the defence did not apply and been entitled to convict the appellant of contravening the 1995 Act.