Man convicted of wilful fire-raising charges fails in ‘insufficient evidence’ appeal

The Criminal Appeal Court refused the appeal after upholding a sheriff’s decision to repel a defence submission of “no case to answer” and rejecting the appellant’s claim that the sentence of four years imprisonment was “excessive”.

Lord Brodie, Lord Bracadale and Lady Clark of Calton heard that the appellant Matthew Martin was indicted at Perth Sheriff Court on seven charges and was convicted of each of charges 2-7 after a trial in May 2015.

Charges 2 and 3 libelled a breach of the peace by setting fires to a caravan belonging to him on two separate occasions on the same layby on the A85 Perth to Oban road near St Fillans.

Charge 4, which libelled wilful fire-raising, narrated that the appellant set fire to an armchair in the common close of a building in Crieff causing serious damage to the property and endangering the lives of the occupants.

Charge 5 also libelled wilful fire-raising to a caravan on the same layby on the A85 as libelled in charges 2 and 3.

Charge 6 libelled theft from a lock-fast caravan of a jacket and kettle at a different layby on the A85, while charge 7 again libelled wilful fire-raising by setting fire to the same caravan at the layby on the A85 which was also the locus in charge 6.

The appellant was acquitted of charge 1 libelling wilful fire-raising, which narrated that in premises in Glasgow.

The sheriff had earlier repelled a submission of no case to answer, having applied the principle in Howden v HM Advocate 1994 SCCR 19, stating that it was clear that “there was an adequate weight of circumstantial evidence to implicate the appellant in respect of all the charges”.

He noted the evidence of the fire fighters regarding the presence of the appellant at each of the fires, their observations that they had not been called previously to any fires in that area, and the fact they had also spoken to the appellant’s apparent lack of concern in relation to the fires.

The presence of multiple tins of accelerant, together with evidence that the fires in charges 3 and 4 had been started deliberately, would also permit an inference to be drawn by the jury in relation to charge 1.

The appellant was found in possession of property identified as stolen from the caravan that was set on fire in charges 6 and 7.

The sheriff took the view that these were “all properly matters for the jury properly directed and applying their common sense”.

However, the appellant appealed against conviction on the ground that the sheriff erred in rejecting a submission of no case to answer in respect of charges 2 to 7.

Counsel submitted that presence at the scene did not provide a sufficient basis to conclude that the appellant was the perpetrator of each charge, as there was “no direct eyewitness evidence” that he had started any of the fires and “no forensic evidence”.

It was also argued that there was “no basis” for applying the approach in Howden v HM Advocate, as that approach required there to be at least one charge which was independently proved by corroborated evidence and only then would it be open to a jury to be satisfied that a second and subsequent offences must have been committed by the person who committed the first offence.

The advocate depute submitted that there was sufficient independent evidence to find each of charges 5 and 7 corroborated as a stand-alone charge. Thereafter the approach in Howden v HM Advocate could be applied in relation to the other charges.

The appeal judges observed that the evidence in support of charge 5 was “wholly circumstantial” but accepted the Crown’s argument that when all the strands of circumstantial evidence were taken together they provided a corroborated case identifying the appellant as having set fire to the caravan in charge 5.

The judges also accepted the submissions of counsel on behalf of the appellant that in respect of each of the remaining charges, when looked at individually, there was insufficient evidence to allow it to go to the jury, but they ruled that the approach in Howden was available to the jury in relation to these other charges.

Delivering the opinion of the court, Lord Bracadale said: “Where one offence is proved by corroborated evidence it is open to the jury to look to the circumstantial evidence to examine the question whether it is proved beyond reasonable doubt that it was the same person who committed the proved offence and one or more other offences in respect of which there is insufficient evidence.

“In our opinion it was open to the jury to take this approach in relation to charges 2, 3, 4 and 7. Each of charges 2, 3 and 7 involved the catching fire of caravans in two laybys on the A85 within a mile of each other. The events libelled in charges 2 – 7 occurred over a period between August 2013 and July 2014. None of the offences had any apparent motive. All featured the presence of the appellant.

“While the fire in charge 4 occurred in a building, it happened very soon after the offence in charge 3. It occurred in the same general vicinity, namely, an area of Perthshire. It occurred very soon after the appellant had been rehoused in the building. In addition, in relation to charge 4 there was some circumstantial evidence capable of pointing towards the appellant as being the perpetrator.

“In relation to charge 6, at the stage of the submission under section 97 of the 1995 Act, there was at least sufficient evidence to found a charge of reset of the stolen property. That would be sufficient to allow the sheriff to repel the submission.

“For the above reasons we are satisfied that the sheriff did not err in repelling the submission of no case to answer in relation to each charge and the appeal against conviction must be refused.”