England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		15th August 2000

1. LORD JUSTICE CLARKE: This is the judgment of the Court.
2. On 12th March 2000 the appellant, Nicholas Ivey, was driving his car when he was stopped by the police because they thought it had a defective exhaust. The police smelt cannabis so they asked the appellant to get out of the car and searched him. They found a butterfly knife with a 4 inch blade in his back pocket. He said that he was moving house and that he did not normally carry a knife. He was arrested on suspicion of carrying an offensive weapon and taken to a police station where he was further searched. Two joints of cannabis were found in a shoe. He subsequently pleaded guilty before the justices to possession of the cannabis and was fined £50 with £25 costs.
3. However, he pleaded not guilty to being in possession of an offensive weapon, namely the butterfly knife, contrary to section 1(1) of the Prevention of Crime Act 1953. Section 1(1) of that Act provides so far as relevant:

"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 ..."

4. By section 1(4) an offensive weapon is defined as:

"... any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person."

5. An article within the first part of that definition is often described as an offensive weapon per se. It has been accepted throughout by the appellant that the butterfly knife found in his back pocket was such a weapon. It is also fair to say that the prosecution has never suggested that the appellant had the intention referred to in the second part of the definition.
6. The appellant has correctly accepted throughout that when the police found the knife it was in his possession in a public place. It follows that he was guilty of the offence set out in section 1(1) of the 1953 Act unless he proved on the balance of probabilities that he had the knife with him with lawful authority or reasonable excuse. Since it has never been suggested that he had any relevant lawful authority, the question was simply whether he had a reasonable excuse for having the knife with him.
7. The appellant was asked about the knife in interview some one and a half hours after his arrest and gave an explanation for how it came to be in his pocket.
8. Subsequently the defence case statement was served in accordance with section 5 of the Criminal Procedure and Investigations Act 1996. The substance of that statement was substantially the same as the explanation which he had given to the police when interviewed, although when he was interviewed he also explained to the police that he had bought the knife while on holiday in France some four years previously before he went to university, that he had kept it as an ornament and that it had not been out of his girlfriend's house until he moved out some two or more weeks earlier.
9. In short his defence may be summarised in this way. He bought the knife as an ornament and kept it at home, which was his ex-girlfriend's home. He moved out two weeks previously and put all his belongings in his car. He went to stay with his new girlfriend, leaving his belongings in the car. On the morning of 12th May he was transporting the belongings to his new address. Some time before he was stopped by the police he came across the knife, which he had temporarily forgotten about, in the glove compartment of the car when looking for a tape. He put it in his back pocket so that he would not forget it. In these circumstances the appellant's case was that he had a reasonable excuse for having the knife first in the car and then in his back pocket because he was essentially transporting it together with his other belongings from one house to another.
10. Miss Sparks submits that it was, or should have been, a matter for the jury to decide whether, in all these circumstances, he had a reasonable excuse for having the knife in a public place. In the event the appellant's defence was not put before the jury because the appellant pleaded guilty on 20th July of this year and a conviction was therefore entered against him. On the same day he was sentenced by Judge Campbell at the Inner London Crown Court to four months' imprisonment.
11. The appellant now appeals against both conviction and sentence pursuant to leave granted by the single judge Rafferty J, who refused bail but ordered the appeal to be expedited.
12. The appeal against conviction arises in this way. The judge took a firm view of the appellant's defence, or supposed defence, from the outset. He at the very beginning, and before he was addressed by counsel for the Crown, said that he had asked to see the defence statement and that he had read the prosecution papers which would have included the appellant's interview. He then said this:

"It appears to me, Miss Sparks, that the defendant, on the papers, does not have a defence at all. A butterfly knife is an offensive weapon, per se. Therefore, the Crown do not need to prove that he had it to use either as a weapon of attack or a weapon of defence. The burden of proof shifts to the defendant to satisfy the jury, if this was contested, that he had a reasonable excuse.

The law seems clear that if one has something in one's possession and the reasonable excuse is that you forgot it was there, that that does not amount to a reasonable excuse. So, why do we need a jury, when he is guilty on his own account."

13. Miss Sparks then referred the judge to paragraph 24-110 in Archbold 2000 where the editors discuss the ingredients of the offence under the heading "has with him" and the subheading "knowledge". She referred in particular to a reference in that passage to Glidewell (1999) 163 JP 557. There followed an exchange during which counsel and the judge may have been at cross purposes because the judge appears to have thought that Miss Sparks was seeking to argue that the appellant did not have the knife with him in a public place.
14. However, the point was clarified at page 4C where Miss Sparks said:

"The simple point for consideration would be: was it a reasonable excuse for Mr Ivey to have it with him? It being in transit, from one place to another."

15. The judge immediately said:

"If that was the basis of defence I would tell the jury that there was no defence."

16. In the light of that indication Miss Sparks took instructions from the appellant and the appellant pleaded guilty. Miss Sparks submits that that plea was the direct result, and founded upon, the indication which the judge gave as to how he would direct the jury. She submits that the ruling proposed by the judge was wrong and that it follows that the conviction entered by reason of the plea, founded on the ruling, makes the conviction unsafe.
17. In Chalkley and Jeffries [1998] 2 Cr App R 79 Auld LJ, giving the judgment of this Court, said at page 89:

"Section 2(1) [of the Criminal Appeal Act 1968] in its old and new forms respectively entitled and entitle the Court of Appeal to quash as unsafe a conviction based on a plea of guilty where the plea was mistaken or without intention to admit the truth of the offence charged. In the case of the old form, it was commonly said, in reliance on a passage from the judgment of Woolf LJ in Preston (1992) 95 Cr App R 355, 381, drawing on an observation of Robert Goff LJ in Hunt (1986) 82 Cr App R 244, 249, [1986] QB 125, 132, that it might also do so where it was 'founded upon' a material irregularity or, as Mr Cassel submitted, upon an erroneous ruling on a point of law."

18. The Court then considered in detail the meaning of "founded upon" in the authorities: see pages 89 to 94. It is not necessary for us to do so here because Auld LJ concluded in this way at page 94 at D:

"In appeals against conviction following a plea of guilty, the somewhat mechanical test of whether a change of plea to guilty was 'founded upon' a particular feature of the trial, namely a wrong direction of law or material irregularity, gives way to the more direct question whether, given the circumstances prompting the change of plea to guilty, the conviction is unsafe. However, even when put that way, the good sense of preferring the narrower interpretation, which we have identified, of the expression 'founded upon' lingers on. Thus, a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a verdict of guilty on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstance would normally be regarded as an acknowledgment of the truth of the facts constituting the offence charged.

We qualify the above propositions with the word 'normally', because there remains the basic rule that the Court should quash as unsafe a conviction where the plea was mistaken or without intention to admit the truth of the offence charged."

19. In that case it was held that, although the appellants' pleas of guilty were influenced by a ruling made by the judge as to the admissibility of tape recordings, the convictions were nevertheless safe because, as it was put at page 100C:

"... by their pleas of guilty, [the appellants] intended to admit and have admitted their guilt."

20. In short they were guilty as charged.
21. Here the position is quite different. In our judgment the appellant pleaded guilty not because he intended to admit the truth of the offence charged, but because the judge made it clear that he proposed to tell the jury that he had no defence. We can understand that some counsel would have sought to persuade the judge to change his mind, advise their client to plead not guilty and to give evidence, leaving the matter to be discussed further with the judge before the summing-up. In many cases failure to take that step will be fatal to an appeal, but each case depends upon its own facts. The question is whether this conviction is unsafe.
22. In our judgment it is. The judge took a strong view which he expressed very firmly from the outset. He made it clear how he would direct the jury. It was that forthright expression of view which persuaded the appellant, on advice, to change his plea. Moreover, if the judge had directed the jury as he said he would the appellant would be bound to have been convicted. In so far as the judge said that if the basis of the defence was that the knife was in transit from one place to another that would not amount in law to a reasonable excuse we do not agree. It might or might not amount to a reasonable excuse depending on all the facts.
23. The authorities support the proposition that where a person knows that he has an offensive weapon in a public place the fact that he has forgotten that it is still there does not of itself amount to reasonable excuse, McCalla (1988) 87 Cr App R(S) 372 at 379. Thus in giving the judgment of the Court in that case May LJ said at page 379C to D:

"We think that the basic principle underlying those cases is that once one has or possesses something, be it an offensive weapon or a drug, one continues to have or possess it until one does something to rid oneself of having or possessing it; that merely to have forgotten that one has possession of it is not sufficient to exclude continuing to have or possess it. As Phillimore LJ said in Buswell [1972] 1 All ER 75, 78 [1972] 1 WLR 64, 67, there is no limbo into which the article can go if recollection dims.

Accordingly, in our judgment there was no misdirection by the learned judge in the instant case about the appellant's knowledge that he had the cosh with him. There was need to leave to the jury the question whether he had forgotten that he had it with him. He knew that he had it, because he had picked it up at the building site and continued to have it with him in his car; and by the statutory provisions he had it with him in a public place.

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."

24. May LJ then gave a particular example as follows:

"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. If he were to forget that it was there and two years later were to be stopped and the truncheon were then found in the boot of the car, the circumstances of the original acquisition of the truncheon and the time for which that person had completely forgotten that it was in the car could constitute a reasonable excuse for possessing the truncheon two years after its acquisition."

25. As we see it, in a case where the defendant does not rely upon the mere fact that he has forgotten that he has the article in his possession all will depend upon the circumstances of the case. It will then be a matter for the jury whether he has a reasonable excuse or not. Thus in Glidewell Rose LJ, the Vice President, in giving the judgment of the Court said at page 559F:

"Depending upon the circumstances of the particular case, forgetfulness may be relevant to whether or not a defendant has a reasonable excuse or possession of an offensive weapon."

26. We respectfully agree.
27. On the particulars facts of Glidewell the Court expressed its conclusion in this way at page 559F to G:

"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."

28. Thus all depends on the circumstances of the particular case.
29. In our judgment, in the particular circumstances of this case, the matters raised in the defence statement, read in the context of the appellant's answers in interview, should have been left to the jury. It would have been a matter for the jury to say whether the defendant had a reasonable excuse for having the knife in his back pocket. This is not a case in which the defence was merely that the appellant had forgotten that he had the knife. His defence was that he had bought the knife as an ornament, that he had kept it at home and that he was simply transferring it, together with his other belongings, from one home to another without any intention of using the knife. In addition, it was his case that he had forgotten about the knife during the two weeks or so that his belongings were in the car. Assuming that those facts were put before the jury, as they would have been but for the ruling that the judge indicated that he would give, it would have been for the jury to decide where the truth lay and to say whether, in all the circumstances, the appellant had a reasonable excuse for having the knife with him or not. As we see it, save in the case where the appellant's sole excuse for having the offensive weapon with him is that he forgot, which was the position in McCalla, it will almost invariably be a matter for the jury whether he had reasonable excuse or not.
30. In all the circumstances, our conclusion is that this conviction was unsafe. It follows that the conviction must be quashed.
31. MISS SPARKS: My Lords, may I mention a matter that arises from your ruling? Subsequent to Mr Ivey being sentenced on that day the learned judge ordered that those instructing me should show cause the following week as to why they had given what in the learned judge's view was incompetent and wrong legal advice in the way in which your Lordships have seen in the various comments in the volume to which the Court has alluded this afternoon. The following Friday there was indeed a hearing and a costs order was made against those instructing me which in itself is the subject of an appeal to this Court.
32. Various procedural requirements have been complied with and it had been hoped that the matter could be joined, if I can put it that way, with today's hearing of the substantive appeal. It appears that the registrar of this Court has not been able to put those papers before your Lordships, and I wonder if your Lordships would allow me, in the circumstances of the judgment, leave to invite your Lordships to deal with that matter this afternoon?
33. LORD JUSTICE CLARKE: The only difficulty about that is that we do not have any of the papers relating to it at all. I quite understand that the judgment we have just given is likely to have a significant bearing on that, but I am not sure that we -- while I am sympathetic in principle to your position, speaking for myself --
34. MISS SPARKS: I understand. It was simply hoped that in joining the matters, as I have indicated, it may be possible to expedite --
35. LORD JUSTICE CLARKE: Is there any respondent, as it were, to that appeal?
36. MISS SPARKS: The Crown were represented on that occasion in order to assist the court with figures and so forth. It was not my learned friend who appears today. The Crown Court have been notified, as is a requirement under the regulations which permit the appeal, so one anticipates that if the court wished to make representations they could.
37. I have the grounds of appeal, which I can provide to the Court this afternoon, the short point being that the learned judge took the view that those instructing me had given wrong and in his view incompetent legal advice which gave rise to an election for trial in the Crown Court and all other proceedings flowed from that. In view of the situation I can well understand that this Court may wish to have a transcript of those proceedings.
38. LORD JUSTICE CLARKE: Is there a transcript of what the judge said in those proceedings?
39. MISS SPARKS: I do not have one to hand.
40. MR JUSTICE CURTIS: This is a serious matter. It is a matter which reflects on the competence of the solicitors and also on the accuracy of the judge's findings as to what happened before trial and during it. I do not see how it can possibly be dealt with on the basis of today's --
41. LORD JUSTICE CLARKE: I do follow that, as I say, what we have said today is likely to have a considerable effect upon that, and perhaps a decisive effect, but it is difficult for us to be sure about that without seeing a transcript of what the judge said, and in my experience, on this sort of topic, it is difficult for the Court, unless it has a transcript of what has happened in the court below. I was just wondering if it would be possible for us to hear the matter on Friday when we shall still be here, but I do not know if that will be possible either.
42. MISS SPARKS: My Lord, I rose simply to mention it to see if it is possible.
43. LORD JUSTICE CLARKE: I am sorry, it does not look as if we can help you, though in principle we are sympathetic.
44. I do not think there is any question of a retrial here.
45. MISS VAUGHAN-BROWN: My Lord, in the light of the judgment of this Court I would not invite the Court in all the circumstances to order a retrial.
46. MR JUSTICE TUCKER: The appellant has served a month of imprisonment.
47. MISS VAUGHAN-BROWN: My Lord, that is correct and I understand he is to be released on Monday.
48. MR JUSTICE TUCKER: So it would not really be fair to suggest that he should be retried, would it?
49. MISS VAUGHAN-BROWN: Certainly not. It is not my suggestion at all, my Lord.
50. LORD JUSTICE CLARKE: Thank you very much. We are obliged to you for your assistance. The conviction will be quashed.