England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		22nd October 1997

1. LORD JUSTICE HENRY: On 21st February 1997 in the Crown Court at Wood Green before His Honour Judge Winstanley the appellant was convicted of having an article with a blade or sharp point in a public place contrary to section 139 of the Criminal Justice Act 1988 (count 2 on the indictment). He was fined £400 with 14 days' imprisonment in default and ordered to pay £200 towards the costs of the prosecution. He was found not guilty by direction under section 17 of the Criminal Justice Act of having an offensive weapon. He now appeals against conviction by the leave of the single judge.
2. This was a short and simple case. On 1st August 1996 police officers stopped the appellant as he was driving his car because he was not wearing a seat belt. When he got out of his vehicle he was asked whether he had anything on him which he should not have. He patted his pockets and then indicated that he had a knife in his trouser pocket and that he had used it to fix his car radiator. The knife in question was a knife to which section 139 applies, in that it was a silver-bladed penknife with a 4-inch blade or, in the words of the statute, "a folding pocketknife if the cutting edge of its blade exceeds 3 inches".
3. Section 139 reads:

"(1) Subject to subsections (4) and (5) below [they set out the defences that a defendant can rely on if he satisfies the jury as to them], any person who has an article to which this section applies with him in a public place shall be guilty of an offence.

(2) Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocketknife.

(3) This section applies to a folding pocketknife if the cutting edge of its blade exceeds 3 inches."

Then one comes to the defences:

"(4) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place.

(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him---

(a) for use at work;

(b) for religious reasons; or

(c) as part of any national costume."

4. What had happened here was that the appellant was an unemployed mechanic. He was working on his car outside a shop called Floyd's and he was doing some repairs to it. It seems that he and his friends were accustomed to working on their motor vehicles by the pavement outside that shop. He had used the knife to cut his radiator hose. He then lent it to others, received it back, put the knife back in his pocket and so it was that it was in his pocket when he was found driving his motorcar.
5. In cross-examination he was asked why he had not put it back in the tool box and he said, "I don't think I even thought about it."
6. He was cross-examined on his reason for having the knife in his pocket. He said that he had no reason to have the knife on him: he had finished the work on his car. Despite that answer, the judge left both defences to the jury, leaving them two issues: 'Was he in possession of the knife for use at work?' and 'Had he a good reason for having the knife with him?' .
7. In his summing-up in relation to these points, dealing with the phrase 'for use at work', the judge said that what that meant was very much a matter for them. He pointed out that it could mean "paid employment" and it could mean "working on cars in the street", and it was for the jury to decide whether the knife was on his possession "for use at work".
8. In relation to 'good reason', he said that "just forgetfulness on its own was no reason". He said that in the context of the facts in this case.
9. We agree with that statement of law on these facts. When you are found in a public place with a prohibited knife on your person, it is no defence to just say 'I forgot I had it'. As McCowan LJ said in DPP v Gregson [1996] Cr App R 240 at 243:

"In my judgment forgetfulness may be an explanation. It cannot be a good reason."

He was speaking there, as we are in this case, in context of the facts before him. As a general rule, and in this case, but not invariably, that proposition stands true: it all depends on the facts of the case.

10. But the judge then went on to say, perhaps charitably to the defendant in all the circumstances, that forgetfulness combined with another reason might afford a good reason. He went on to say that, if he had the knife on him for some further work, it would be a defence to say 'I'd forgotten it was there but it was there for further work on the car'.
11. He therefore left both defences to the jury. If anything, in so doing he was being too favourable to the defendant, particularly, it may be thought, with reference to the 'good reason' point.
12. That summing-up is attacked by Miss Knight for the appellant on three grounds. She said:

(1) The learned judge erred in that he directed the jury that they were entitled to apply their own definition to the phrase 'for use at work'.

(2) The learned judge erred in failing to direct the jury that the phrase 'for use at work' included being at work for oneself.

(3) The judge erred in that he failed to give adequate direction to the jury in respect of what could or could not constitute 'good reason'. It is said that he wrongly applied Gregson's case.

13. Dealing with the first of those grounds of appeal: where the statute in question uses ordinary everyday language the House of Lords have said on many occasions that judges should not put their own gloss on the language but leave it to the jury.
14. The leading authority on that is the case of Brutus v Cozens (1972) 56 Cr App R 799. There the question was whether staging an anti-apartheid demonstration on Court 2 at Wimbledon in the middle of a match in the annual championship there was 'insulting' behaviour. The justices had dismissed information on the basis that the behaviour was not insulting. There was an appeal by the prosecutor by way of Case Stated on what was said to be a point of law and on that appeal the Divisional Court set aside the judgment of the justices. That in its turn was appealed to the House of Lords, where the decision of the justices was restored. Lord Reid said at page 803:

"It is not clear to me what precisely is the point of law which we have to decide. The question in the Case Stated for the opinion of the court is: 'Whether, on the above statement of facts, we came to a correct determination and decision in point of law.' This seems to assume that the meaning of the word 'insulting' in section 5 is a matter of law. And the Divisional Court appear to have proceeded on that footing.

In my judgment, that is not right. The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense, the court will determine in other words what that unusual sense is. But here there is, in my opinion, no question of the word 'insulting' being used in any unusual sense."

15. Nor is it contended by Miss Knight in this case that the words that we are dealing with, 'good reasons' and 'for use at work', are used in any unusual sense.

"It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case [that in our case is the jury] to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not cover as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision."

16. In another speech allowing the appeal Lord Kilbrandon said:

"It would be unwise, in my opinion, to attempt to lay down any positive rules for the recognition of insulting behaviour as such, since the circumstances in which the application of the rules would be called for are almost infinitely variable; the most that can be done is to lay down limits, as was done in Bryan v Robinson, in order to ensure that the statute is not interpreted more widely that its terms will bear."

17. Blackstone's Criminal Practice (1997) Part F1.19 deals with the many instances in which construction of ordinary words have been said to be a question for the tribunal of fact: the meaning of 'a building' under the Malicious Damage Act; 'disorderly behaviour' under the Public Order Act 1956; 'dishonestly' under the Theft Act 1968, 'armed' under the Customs and Excise Management Act 1979; 'menaces' under the Theft Act 1968; 'an immoral purpose' under the Sexual Offences Act 1956; and an 'explosive substance' under the Offences Against the Person Act 1861. Then they say this:

"Thus, although a judge is perfectly at liberty to direct a jury that it is not open to them to give to a word a particular meaning (being a meaning so unreasonable that if it were adopted and the accused convicted, the Court of Appeal would treat the verdict as perverse), normally he should not direct the jury as to the meaning of an ordinary word. The exception to this rule is where the word has been used in a context which indicates that it is being used in an unusual sense or has acquired a special meaning as a result of the authorities, as happened in relation to the word 'fraudulently' under the Larceny Act 1916: see Lawton LJ, Feely [1973] QB 530."

Then there is the citation of the passage from Brutus v Cozens [1973] AC 854.

18. Having regard to that authority, the judge was entitled to leave the matter to the jury and tell them that it was for them to decide what that phrase meant in the context of the case.
19. In our judgment it would have been better and perhaps clearer if he had restricted himself to that rather than giving the two extremes in relation to each of the examples. But the fact that he gave both the prosecution and the defence's contentions in relation to this does not make the conviction unsafe in our view.
20. Ground 2, that the learned judge erred in failing to direct the jury that the phrase 'use at work' included being at work for oneself, is not made out on the facts because a reading of the summing-up shows that the jury were told in terms that they could, if they thought it right, embrace "simply working on cars" -- and presumably your own car would be included -- "on the street".
21. The third ground of appeal relates to the alleged failure to give adequate direction to the jury in respect of what could or could not constitute 'good reason'. Similar considerations apply to that as the phrase 'for use at work', and so that ground of appeal fails on similar grounds.
22. The learned judge did not, in our judgment, wrongly apply the authority of DPP v Gregson. When he said "that just forgetfulness on its own was no reason", that was an entirely right direction of law on the facts of this case.
23. Therefore, for those reasons this appeal is dismissed.