WILLIAM MARKLOW v. PROCURATOR FISCAL, CUMBERNAULD

October 2012 [1] On 16 March 2012, the appellant was convicted at the Justice of the Peace Court in Cumbernauld on a charge of reset. He appeals against that conviction by way of stated case. The charge of which the appellant was convicted libelled that he had:

"On 30 September 2011 at the wooded area near the Auchenkillins junction on the A73 road Cumbernauld reset a quantity of copper cable being the property of British Telecom the same having been dishonestly appropriated by theft."

[2] The prosecution arose out of the following events. On 30 September 2011 around 9 am, David Thomson, an employee of British Telecom and a member of that company's Metal Theft Task Force, was travelling along the A80 road. When he reached the junction of that road and the A73 road, he saw smoke rising from a wooded area near the junction. From his past experience with British Telecom, Mr Thomson was aware that the wooded area had previously been used by individuals involved in metal thefts.

[7] At the conclusion of the Crown case, the appellant's solicitor made a submission of no case to answer in terms of section 160 of the Criminal Procedure (Scotland) Act 1995. It was argued that the Crown had led no evidence to establish that the property found at the locus had been dishonestly misappropriated by theft. It was submitted that that was fatal to the charge of reset that had been libelled. That submission was repelled by the Justice of the Peace. The appellant did not give evidence and was convicted of the charge as libelled.

[12] In the whole circumstances therefore, we are quite satisfied that the Justice of the Peace was entitled to convict. We accordingly answer the first question in the stated case in the negative, the second question in the affirmative and refuse the appeal.