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Introduction and general [1] This appeal raises an issue concerning the circumstances in which a sheriff can decline to accept the basis of a plea in mitigation in the absence of proof.
[2] On 28 January 2015, in the Sheriff Court at Inverness, the appellant pled guilty to charges that on 7 October 2014, at MacKintosh Road, he: (1) had a knife with him, contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49; and (2) assaulted a police officer by pushing her to the ground to her injury. He was sentenced to 1 year’s imprisonment in respect of charge (1) and 23 weeks imprisonment on charge (2).
The evidence of search [3] It should be noted at the outset that the case has an important distinguishing feature. Prior to the plea being tendered, the sheriff had heard testimony in relation to the circumstances in which the police came to be at the locus and recovered the knife in charge (1). This was in the context of an objection to the evidence of the search of the appellant; the legality of which was critical to proof of the charge.
[7] After a short adjournment, the appellant’s agent called the first floor occupier, who confirmed that her female cousin had been staying with her. This cousin had invited the appellant and the others to the flat. The appellant gave evidence on his own behalf. He stated that, on entering the block, he had met the neighbour, who was in an intoxicated state. He had recognised her, but only as a drug addict from the centre of town. She was carrying a knife and behaving in an aggressive fashion. He had taken the knife from her and gone upstairs where he was challenged by the police.
[8] The neighbour was called to give evidence. She said that she knew the appellant to say hello to. She knew his name and he knew hers. She had been concerned about people calling at her door. She had opened it with a view to seeing what was going on. She had taken a knife with her. This had been removed from her by the appellant. She described this knife. When she was shown the knife which had been recovered from the appellant by the police, her immediate reaction was that it was not the same one. She had described her own knife in different terms.
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