The judge should have acceded to a submission of no case to answer as there was only tenuous evidence of the theft of a hat from a store showing nothing more than a weak circumstantial case.Appeal with leave of the single judge against a conviction for theft imposed at Teesside Crown Court on 5 December 2002 before HH Judge Bryant. The defendant ('D') was fined ?50 and ordered to pay £200 of the prosecution's costs. D, who was a serving police officer of ten years' standing, was charged with stealing a hat from Marks and Spencer on 23 November 2001. The prosecution's case was based on two CCTV recordings that showed D entering the store carrying a bag but not wearing a hat. Later, D was seen at the checkout carrying an object that may have been a hat. There was a gap between the two recordings. D left the store and went to another nearby store. Security staff from Marks and Spencer, who had been watching D, spoke to staff in the other store, who then watched D. She went into a changing room that had three cubicles. Staff could not be certain which cubicle D had gone into; however, an assistant found a hanger and tag belonging to a hat of the relevant type in one of the cubicles. D was arrested outside the store. The hat was forensically tested and a hair, some skin and a make-up smear were found in the hat. In interview D said she had bought the hat some weeks previously and had taken it out of her bag whilst in Marks and Spencer. She could not identify where she had bought the hat and did not have a receipt. At trial D submitted there was no case to answer as there was no proof of appropriation. Whilst the prosecution could show suspicious circumstances, there was no direct evidence that D had taken the hat. The presence of skin and hair, coupled with the evidence that D had not worn the hat that day, gave rise to an inference that it had been worn on an earlier occasion. The judge held that there was a case to answer and the prosecution was not obliged to obtain every conceivable piece of evidence: they could rely on the video evidence and the coincidence of the hanger and tag in the other store. On this appeal, D contended that her conviction was unsafe as the judge should have upheld the submission of no case to answer.HELD: Guidance on the approach to take on a submission of no case to answer could be found in R v Galbraith (1981) 73 CAR 124. In the present case much, if not all, of the evidence was uncontroversial. Put at its highest, the evidence on which the prosecution relied was tenuous. It was a weak circumstantial case. There was no basis on which a jury, properly directed, could properly convict. The evidence established a degree of suspicion and the judge was under a duty to accede to the submission of no case to answer.Appeal allowed.

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