England and Wales Court of Appeal (Criminal Division) Decisions

NO: 97/1744/X3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Friday 7th November 1997

B e f o r e:

LORD JUSTICE HENRY

MR JUSTICE GAGE

and

HIS HONOUR JUDGE TUCKER QC

(Acting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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FELIX DENSU

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(Handed-down judgment of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR AS EVANS appeared on behalf of the Appellant

MISS S THOMPSON appeared on behalf of the Crown

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J U D G M E N T

(As approved by the Court )

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Crown Copyright

MR JUSTICE GAGE: This is the judgment of the Court. On 31 January 1997 in the Crown Court at Croydon on re-arraignment the appellant pleaded guilty to an offence of Having an Offensive Weapon contrary to section 1(1) of the Prevention of Crime Act 1953. He was sentenced to a conditional discharge for 2 years and ordered to pay £75 costs. An order was made for the confiscation of the weapon. He appeals against conviction with leave of the single judge.

Initially the appellant pleaded not guilty. Agreed facts were placed before the judge who was asked to rule whether on those facts the appellant had a defence. The judge ruled that no defence was available to the appellant and accordingly the appellant changed his plea to guilty.

The facts upon which the judge was asked to rule can be shortly stated. In the early hours of 18 August 1996 the appellant was driving his Mazda motor car when he was involved in a road traffic accident. Police officers, called to the scene, found on the floor beside the driver's seat of the appellant's car a metal telescopic extendible baton. It is common ground that that baton, known as an asp, was an "offensive weapon per se". In its unextended form it was cylindrical in shape and 9 inches long. With the flick of a wrist it would extend to some 20 inches long with the extension locking into place. The appellant was cautioned and said that he had been changing a wheel and had used the baton (unextended) as a lever for his trolley jack to jack up a car in order to clean the wheel arches. At interview he expanded on this explanation. He said that a week before this incident he had valeted a car for his employer who imported cars from Japan. He had found the baton and on enquiry had been told by his employer that it was an aerial. He repeated his explanation that he had used it as a lever for his trolley jack. He said that he had not seen the article in its extended form and had no idea that it was a weapon until the police officer told him.

On those facts the judge ruled that he had no defence. In his ruling the judge said:-

"In my judgment, the expression "has with him" used in section 1 of the Prevention of Crime Act 1953 and section 19 of the Fire Arms 1968, to which the word "knowingly" has properly been added for the purpose of this argument means knowing you have got the article without further proof of knowledge of what the article was. Thus it is that I agree with the judgment of the Court of Appeal in the case principally cited to me, R v Vann and Davis, that the expression "has with him" is satisfied if physical possession is established with the defendant knowing that he had it even if he did not know what it was."

The judge invited Counsel, Mr. Evans, who has appeared in this Court, a short adjournment to discuss the ruling with his client. Mr. Evans asked the judge to clarify whether the ruling permitted a defence of "reasonable excuse" or "lawful excuse". The judge continued:-

"I think it is implicit in the judgment I have made that, in my judgment, it would not be a reasonable excuse but on request I am happy to make it explicit."

Mr. Evans responded:-

"Your Honour, I respectfully agree with your Honour's judgment. I am grateful to your Honour for giving it."

After the short adjournment granted by the judge the appellant pleaded guilty on the Indictment being put to him again.

The first point which arises in this appeal is whether the court has jurisdiction to entertain an appeal against a conviction in circumstances where the appellant has pleaded guilty. We can deal with this point shortly. In his skeleton argument, Mr. Davis, referred the court to the case of R v Boal 95 Cr App R 272. In that case the court held that it was duty bound to allow an appeal against conviction where a guilty plea had been entered, if in all the circumstances it thought such conviction was unsafe and unsatisfactory. In this case we have heard no oral argument from either Counsel because, on this point, it was unnecessary to do so. In her skeleton argument, Miss Thompson, Counsel for the prosecution, took no point on this issue. In our judgment she was right not to do so and we have no doubt that in the circumstances of this case we can entertain this appeal.

The next point taken in the skeleton argument by Mr. Evans was that the judge was wrong to rule that the words of section 1 - "has with him" - were satisfied if the prosecution proved that the Appellant merely knew that he had the baton with him but did not know that it was a weapon. Before the hearing of this appeal the Registrar of the Court of Appeal Criminal Division supplied Counsel with the judgments in two unreported decisions of this court. They were R v Vann & Davis , Ref No. 93/3438/X4 and R v Matrix , Ref No. 97/03175/Y5. Having read those judgments Mr. Evans abandoned this ground of appeal.

Accordingly, this appeal now proceeds on a single ground of appeal. That ground is that the judge was wrong to rule that the defence of "reasonable excuse" was not available to the Appellant. The starting point must be the Prevention of Crime Act 1953 itself. Section 1 reads, in its material parts, as follows:-

"1. Prohibition of the carrying of offensive weapons without lawful authority or reasonable excuse.

(1) Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence......."

Mr. Evans submits that the appellant's explanation that he did not know that the baton was a weapon and that he had used it as a lever for his trolley jack in circumstances where he genuinely believed it to be an aerial, could amount to a reasonable excuse. Central to this submission is his contention that a jury should be permitted to consider the appellant's explanation in the context of his ignorance that the baton was a weapon. He accepted that for the purpose of proving that the appellant had with him the weapon the prosecution did not have to prove that the Appellant knew that it was a weapon. However, when it came to the defence of reasonable excuse the Appellant was entitled to rely, inter alia, on his ignorance of the fact that it was a weapon. He submitted that dicta in decided cases supported this submission. In particular he refers the Court to R v McNamara (1988) 87 Cr App R 246, R v McCalla (1988) 87 Cr App R 372, and passages in Vann & Davis.

In McCalla the appellant contended that the fact that he had forgotten he had a cosh in the glove compartment of his car was capable of being a "reasonable excuse" under section 1. The court held that such forgetfulness could not amount to a reasonable excuse. At page 379 May LJ said:-

"As to the second alleged misdirection, we are quite satisfied that to have forgotten that one has an offensive weapon in the car that one is driving is not in itself a reasonable excuse under the Act. But when such forgetfulness is coupled with particular circumstances relating to the original acquisition of the article the combination of the original acquisition and the subsequent forgetfulness of possessing it may, given sufficient facts, be a reasonable excuse for having the offensive weapon with one."

Mr. Evans relies on that passage. He also relies on a passage in Vann & Davis where Evans LJ said:-

"If the submissions for the appellant here were right, they would go much further than the so-called halfway house. It would mean that the prosecution had to prove, in every case, not merely that the defendant knew that he had the relevant article in his possession, but that he knew also that it was either a loaded firearm or had ammunition with it. It would also mean that the reasonable excuse defence, in so far as it might be based upon an absence of knowledge, would be unnecessary."

The reference to the "so-called halfway house" is a reference to observations on possible developments in the law of offences of strict liability contained in Smith & Hogan's Criminal Law. Mr Evans submits that the final sentence of that passage supports his submission that lack of knowledge is a matter capable of founding a reasonable excuse defence. We think it relevant to observe that Evans LJ went on to deal with the question of the defence of reasonable excuse. At page 19 he said:-

"We have no hesitation in holding that the defence was not conceivably available to her in the present case because, as already stated, there could be no question of this coming within the category of a halfway house. She had plenty of opportunity to examine the package, or article, to see what it was she had chosen no to do so. In so far as she would rely on the lack of knowledge we hold, as a matter of law that that would not suffice. Whether the defence would be open to a defendant in a case where not merely the lack of knowledge would be relied upon but, in addition, facts such as give rise to a halfway house situation might be replied upon is a matter upon which it is unnecessary to express any view, and we do not."

In summary Mr. Evans submits that in Vann & Davis the court left open the question of whether the defence of reasonable excuse was available in a halfway house situation. He submits that because the appellant had been told and believed that the baton was an aerial, it was a halfway house situation and is therefore distinguishable on the facts from Vann & Davis.

We do not accept Mr. Evans submissions. In our judgment there are a number of reasons why the judge was correct to rule on these facts that the defence of reasonable excuse was not available. First, and most importantly, in our judgment the defence of reasonable excuse only arises once it is accepted and proved that a defendant is in possession of an offensive weapon. The question then for the jury is whether the defendant had a reasonable excuse for having with him that offensive weapon. As a matter of principle it cannot be possible for a defendant to argue, once found to have with him an offensive weapon, that he did not know it was an offensive weapon. The Act is an act aimed at eradicating the carrying of dangerous weapons in public. The whole purpose of the Act is to provide strict liability in respect of objects regarded as dangerous. To allow lack of knowledge to be raised as a reasonable excuse defence would defeat the purpose of imposing strict liability in respect of the possession of such a weapon. This is so where the object is an offensive weapon per se. Second, in our judgment this is not a halfway house case. We understand the application of the halfway house argument to apply to the primary question of whether or not a person has with him or her possession of an article or articles. It has no relevance to the statutory defences which arise under legislation dealing with drugs, firearms, and offensive weapons. Third, it follows in our judgment that the cases where the defence of reasonable excuse will be available are restricted. It has been held that it is not a reasonable excuse for a person to carry a knife in case he is attacked by a "skinhead": see R v Peacock [1973] Crim LR 639: for a taxi driver to carry a weapon in case he meets violent passengers: see Grieve v Macleod [1967[ Crim LR 424; or for an employer to keep weapons in his car in case he is attacked when collecting wages: see Evans v Wright [1964] Crim LR 466. The position of security guards is not clear. Each case proceeds on the basis that the offender has with him an offensive weapon for some reason; not that he did not know that it was an offensive weapon and had it on him for some specified reason. An example of a situation where the excuse might be reasonable was given in McCalla. May LJ at page 379 said:-

"For instance, to take an example that was adverted to in the course of argument: if someone driving along a road where earlier there had been a demonstration were to see and pick up a police truncheon which had obviously been dropped there and were to put it in the boot of his car, intending to take it to the nearest police station, and then were to be stopped within a few minutes, he would have a reasonable excuse for having the truncheon with him in the boot of the car".

In our judgment what is not permissible is for lack of knowledge to be coupled with an explanation for the use of the weapon so as in combination to provide a reasonable excuse. To permit it would be to defeat the purpose of the legislation and the meaning given to "has with him".

In this case the appellant had in his car at 4.00 am the baton, which, we are told, had inadvertently got into his car after he had finished work on another car the previous day. Given the purpose of the legislation, in our judgment, it could not be a reasonable excuse to say that he had it with him for his work. Even if it could be said that it was capable of being a reasonable excuse to have it with him for work, that, of itself, would provide no reasonable excuse for having it with him in the early hours of the morning. As we have already indicated the fact, if it be so, that he did not know it was an offensive weapon is not relevant to the issue of reasonable excuse. In those circumstances, in our judgment, the judge's ruling was correct and this appeal must be dismissed.

LORD JUSTICE HENRY: On 31st January 1997 at the Crown

Court at Croydon this appellant pleaded guilty to an offence of having an offensive weapon. Subsequently, with leave of the single judge, he appealed against that conviction, and for the reasons set out in the judgment which has been handed down, the appeal is dismissed. The judgment is available for those who are interested in it.

Are there any applications in this case?

MR DUNN-SHAW: May it please your Lordships, I appear for the respondent in this matter and I am instructed to apply that the respondent's costs be met by the appellant.

LORD JUSTICE HENRY: By the?

MR DUNN-SHAW: By the appellant, my Lord.

LORD JUSTICE HENRY: What is the basis of that application? He was legally aided below; is that right?

MR DUNN-SHAW: My Lord, yes. It is not an application that I feel I can make with any force. However, I was briefed in this matter this morning and have made telephone calls to the CPS with no result and simply act upon instruction from counsel in this case. I am not, regrettably, equipped with a figure to provide the Court as to the costs sought, and as your Lordship points out, this appellant has been legally aided throughout.

LORD JUSTICE HENRY: And -- I have forgotten the details -- counsel settled the grounds of appeal?

MR DUNN-SHAW: My Lords, yes.

LORD JUSTICE HENRY: And the single judge?

MR DUNN-SHAW: Gave leave.

LORD JUSTICE HENRY: A wasted costs order against the single judge?

MR DUNN-SHAW: It was not what I had in mind, my Lord.

LORD JUSTICE HENRY: No, we do not think it is right to make such an order.

MR DUNN-SHAW: My Lord, yes.