England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		4th May 1999

THE VICE PRESIDENT: On 7th July 1998, at Croydon Crown Court, following a trial before His Honour Judge McHale, the appellant was convicted by the jury on two counts of having an offensive weapon and was fined £50 on each count and ordered to pay some prosecution costs. He was acquitted on a third count.

He appeals against conviction by leave of the Single Judge.

The fact were these. In the early hours of 25th September 1997, a police officer, Constable Colville, on duty in Bourne Road, Bexley, stopped a car which was being driven by the appellant, who was a mini cab driver. The officer went to speak to a female passenger and he noticed a piece of wood sticking out from beneath the carpet in the driver's footwell. That gave rise to count 1. He asked the appellant why he had it and he said a passenger had left it in his car a couple of days earlier. He was asked if he had any other weapons and the appellant said there was a knife in the door pocket. That gave rise to count 3, on which the jury acquitted. The officer also found a rope cosh and that gave rise to count 2. In relation to those items, the appellant said that they had both been left in the car by someone, a few days earlier. He agreed with the officers that he ought to have put them in the boot.

It was conceded on behalf of the defence that the piece of wood and the rope cosh were offensive weapons and the appellant had them in a public place; and neither possession nor ownership of the items was in issue. The issue for the jury was, in each case, whether the defendant had a reasonable excuse.

The primary facts to which we have referred, as adduced by the prosecution, were not in issue. It is to be noted that, in the course of his interview with the police, the appellant denied that he had ever used or intended to use any of the three weapons. The explanation which he gave about the knife and the circumstances in which that came to be in his possession was clearly not rejected by the jury because, as we have said, they acquitted on the third count in relation to the knife. He said, in interview, that the cosh and the piece of wood had been found in the back of his car, a couple of nights before, by a passenger and he, the defendant, simply took them and put them in the front, intending to clear them out later and then completely forgot. He had no idea who had left them there. He had not even taken the radio out of the car that night because he had finished work late.

He denied having the articles for self protection. He said, at his age, he probably would have used the centre locking. He had simply forgotten to take the items from the car because he was working late. He gave evidence of being a man of previous good character, some 53 or 54 years of age, and otherwise in accordance with what he had said in interview.

The submission which is made on behalf of the appellant by Mr McGrail is that the learned judge's summing-up, despite the submissions beforehand by counsel as to what the terms of the summing-up should be, wrongly withdrew from the jury the materiality of forgetfulness in relation to reasonable excuse. What the learned judge said in the summing-up at page 6E was this:

"being forgetful that it is there is not an excuse, never mind a reasonable excuse."

That he repeated at page 16D:

"I have told you that forgetting is not an excuse in law."

Mr McGrail and, in due course, on behalf of the Crown, Mr Hallowes, both sought comfort from a decision of a differently constituted division of this Court in

R v McCalla 87 Cr App R 372. Mr McGrail submitted that the learned judge was wrong to direct the jury in this way, having regard to the following passage, which appears at page 379 of the judgment:

"...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."

Lord Justice May, who was there giving the judgment of the Court, went on to give an example of the circumstances in which forgetfulness might be pertinent.

On behalf of the Crown, Mr Hallowes drew attention to the fact that McCalla's appeal was dismissed. It is to be noted that there was one significant difference between the facts of McCalla and the facts in the present case, namely that McCalla was himself the author of the introduction of the offensive weapon into the glove compartment of his car. It was an item which he had found on a building site, about a month before the time of his arrest. In the present case, of course, it is apparent that, on the evidence, it was not the appellant who was responsible for introducing any of these items into his vehicle.

The question arises whether, in the passages to which we have referred, the learned judge misdirected the jury. In our judgment he did. Depending upon the circumstances of the particular case, forgetfulness may be relevant to whether or not a defendant has a reasonable excuse for possession of an offensive weapon.

The circumstances of the present case, including the fact that it was not the defendant who had introduced the weapons into his car, the fact that the weapons had been in his possession for a comparatively short period of time and the fact that he had given evidence as to how busy he was on the relevant night, which bear on the question of his forgetfulness, all as it seems to us, made the relevance of forgetfulness to the question of whether his excuse for possession was reasonable a matter for the jury.

That being so, in the passages to which we have referred, the learned judge misdirected the jury. We have no hesitation in concluding, bearing in mind, in particular, the jury's acquittal of the defendant on count 3 that that was a direction which may very well have influenced the verdict which they returned on counts 1 and 2. It follows that those verdicts must be regarded as unsafe and the appellant's conviction on each of them is quashed.

Mr Hallowes rightly, in our view, does not invite the Court, in all the circumstances of this case, to order a retrial. For the reasons give this appeal is allowed.