England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 21 October 2008

1. LORD JUSTICE RICHARDS: On 29 July 2008 at Kingston Crown Court Vasil Tsap was convicted of having an offensive weapon contrary to section 1(1) of the Prevention of Crime Act 1953. His conviction was based on a change of plea to guilty in the course of his trial as the result of a ruling by the trial judge, Mr Recorder Stephen John as he then was, now His Honour Judge John. The judge subsequently imposed a sentence of six months' detention in a young offender institution.
2. Applications for leave to appeal against conviction and sentence were referred to the Full Court by Davis J. We deal first with the conviction application. We have granted leave in the course of argument and will refer to Mr Tsap as the appellant.
3. The facts are straightforward. On 26th March 2008 the appellant was searched by a doorman at the entrance to the Oceana nightclub in Kingston. In his inside right jacket pocket the doorman discovered what appeared to be a cigarette lighter, but when the button on it was pressed a 2 inch blade sprung out. Thus it was a flick knife. The doorman contacted the police. When the police spoke to the applicant at the scene he said he had forgotten he had the article with him. He got it from a friend the previous October and had left it in the jacket, which he had not worn since then. In interview soon afterwards he expanded upon that account, stating that in September or October the previous year he had gone with friends to a different nightclub. When he went outside for a cigarette he had borrowed the lighter from someone. He did not realise at that time it was a knife. He just lit up his cigarette and put the lighter in his jacket pocket intending to give it back later, but in fact had not done so. Some time after getting home he found it in his pocket, took it out, discovered it had a knife, then put it back in his pocket and completely forgot about it. He had not worn that jacket between his discovery of the knife and the occasion when he was arrested.
4. At the trial the prosecution led evidence from the doorman and the relevant police officer, together with the account given by the appellant in interview. The appellant himself gave evidence, though we do not have a transcript of it.
5. At the close of the evidence an issue arose as to the terms in which the judge should direct the jury. It was common ground that the knife was offensive per se and that the only defence to be considered was that of reasonable excuse, a defence which the appellant had the burden of proving on the balance of probabilities.
6. The judge referred in some detail to relevant authorities and ruled that, whilst he would not withdraw the defence from the jury, he would direct them that in the circumstances of this case there was no evidence upon which they could properly find that a reasonable excuse was made out. It was that ruling which caused the appellant to change his plea to guilty.
7. The first of the relevant authorities is McCalla (1988) 87 Cr App R 372. It concerned the finding of a cosh in the glove compartment of the appellant's car. The appellant said that he had picked it up on a building site where he worked a month before the incident. He had put in the glove compartment and then forgotten about it. The first issue on the appeal related to the judge's direction on the question of possession.
8. The Court of Appeal, having reviewed earlier authorities, articulated the relevant principle in these terms:

"... 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 possessed it; that merely to have forgotten that one has possession of it is not sufficient to exclude continuing to have or possess it."

It is unsurprising, in the light of that principle, that the appellant did not dispute possession of the knife in the present case.

9. The second and related issue in McCalla concerned the judge's direction that as a matter of law there was no evidence before the jury which could justify them coming to a conclusion that the appellant had proved reasonable excuse.
10. On that question May LJ, giving the judgment of the court, stated this:

"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.

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."

11. On the facts of McCalla the court found that there had been no misdirection as to reasonable excuse. We note that the judge in the present case based his proposed direction on the language of the direction that was upheld in McCalla.
12. McCalla was considered in Glidewell (unreported BAILII: [1999] EWCA Crim 1221 ) 4 May 1999, where the relevant counts concerned the discovery of a piece of wood and a cosh in the driver's footwell of the appellant's car. The explanation given by the appellant, who was a minicab driver, was that the items had been found in the back of his car a couple of nights before by a passenger and he, the appellant, simply took them and put them in the front intending to clear them out later and then completely forgot about them. He had no idea who had left them there. The judge directed the jury that being forgetful was not a reasonable excuse.
13. In the judgment of this court, given by Rose LJ, Vice President, attention was drawn to a significant difference between the facts of the case and those of McCalla, namely that the appellant in McCalla was himself the author of the introduction of the offensive weapon into the glove compartment of the car, whereas in Glidewell it was not the appellant who was responsible for introducing any of the items into his vehicle.
14. Rose LJ continued:

"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."

On that basis it was held that the judge had misdirected the jury.

15. Both McCalla and Glidewell were considered in Ivey (unreported) 15 August 2000, BAILII: [2000] EWCA Crim 3548), an authority that was not drawn to the attention of the judge in the present case. In Ivey a butterfly knife had been found in the appellant's back pocket when the car he was driving was stopped by the police. His defence was that he had bought the knife as an ornament and kept it at home, which was his ex-girlfriend's home. He had moved out two weeks previously and put all his belongings in his car. He went to stay with his new girlfriend, leaving his possessions in the car. On the morning when he was stopped he was transporting the belongings to his new address. Some time before he was stopped he came across the knive, 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 he would not forgot it. His 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.
16. The trial judge indicated that he would direct the jury that that was no defence, whereupon the appellant changed his plea. The Court of Appeal held that the judge was in error and that the conviction was unsafe. Clarke LJ, giving the judgment of the court, referred first to McCalla. He then said this at paragraph 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."

17. He then cited the passages from Glidewell that we have already set out, concluding that it all depended on the circumstances of the particular case. He went on to say that in the particular circumstances of Ivey the matters raised should have been left to the jury. He stated at paragraph 29:

"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."

18. We have also had our attention drawn to DPP v Patterson [2004] EWHC 2744 Admin in which the Divisional Court held that the words "reasonable excuse" are words of wide import and cited Ivey in support of that proposition.
19. On the basis of the guidance in those authorities, Mr Jumabhoy on behalf of the appellant in the present case has submitted that the judge was wrong to rule as he did, that there was no evidence on which the jury could find a reasonable excuse. This was not a case where the excuse was solely one of forgetfulness. There were additional circumstances which meant that the defence should have been left to the jury. The appellant's evidence was that when the lighter came into his possession he had no knowledge that it contained a flick knife. He gave the explanation of how he subsequently came across it again and discovered that it was a flick knife and then left it forgotten in his jacket for a long period before the relevant period. Mr Jumabhoy submitted that it was for the jury to evaluate whether on that evidence the defence of reasonable excuse had been made out. It could not be said, as a matter of law, that the evidence did not sustain a finding of reasonable excuse.
20. For the Crown, Mr Common has submitted that where the possessor of an article discovers the true nature of the article, in this case that it was a knife, and thereafter forgets he is in possession of it, the principles of McCalla should apply in the same way as if the person had acquired that article in the first place knowing its true nature. Here he says the fact of the original innocent acquisition and subsequent forgetting could not be regarded as a reasonable excuse in the light of the intervening circumstances, namely the appellant's discovery that it was a flick knife and the fact that instead of divesting himself of it when he had the opportunity to do so he chose to put it back in the pocket of a jacket where it would inevitably go with him to a public place. Accordingly his submission is that the judge's ruling was correct in law.
21. Our conclusions on those submission are as follows. It is clear that mere forgetfulness that one has an article in one's possession cannot of itself provide a reasonable excuse for possession of an offensive weapon. But forgetfulness may be relevant as part of a wider set of circumstances relied on as providing a reasonable excuse. As the authorities stress, all depends on the circumstances of the particular case. Where the matters relied on go beyond mere forgetfulness, one would normally, and according to Ivey almost invariably, expect it to be left to the jury to decide whether the defendant had a reasonable excuse or not. But it does all still depend on the particular circumstances and we do not dismiss the possibility that cases may arise where a defence is based on more than mere forgetfulness but the judge can, nevertheless, properly direct the jury that the evidence in the particular case does not support a finding case of reasonable excuse.
22. As for the circumstances of the present case, they go well beyond mere forgetfulness. On the appellant's account he came into possession of the knife entirely innocently, not knowing that it was a knife at all, and put the item in his pocket intending it to return it to the person from whom he borrowed it. It was only later that he discovered the true nature of the article and simply put it back in his pocket and forgot about it over a period of several months during which he did not wear the jacket in question until the night of his arrest.
23. It seems to us that it was a matter for the jury to assess the appellant's account and to decide whether he had a reasonable excuse or not. A finding of reasonable excuse may have been improbable, but, in our judgment, it would not have been an improper finding for the jury to make on the evidence.
24. It follows that, in our judgment, the judge fell into error in ruling as he did. It is unfortunate that Ivey was not cited to him since it seems to us that his ruling might well have been different if it had been. For the reasons given, we allow the appeal against conviction and quash the conviction.
25. MR JUMABHOY: My Lord, bearing in mind the fact that the appellant has served pretty much of his sentence, I do not seek a retrial, but it is a matter for the Crown whether --
26. LORD JUSTICE RICHARDS: I don't know whether the Crown will press for a retrial in these circumstances.
27. MR COMMON: The Crown do not seek a retrial, my Lord.
28. LORD JUSTICE RICHARDS: Thank you very much.
29. MR JUMABHOY: The only other thing I am asked to request is the issue of funding and whether a representation order --
30. LORD JUSTICE RICHARDS: Was a representation order not made? According to the summary Davis J granted a representation order for you for this application and, as it turns out, appeal. If was not granted, then, of course, you may have one. (Pause). You are seeking to extend it to your solicitor or just for counsel.
31. MR JUMABHOY: To my solicitor as well.
32. LORD JUSTICE RICHARDS: I am sorry. So far as counsel is concerned, I think it was granted.
33. MR JUMABHOY: I think that is right.
34. LORD JUSTICE RICHARDS: But if not, you can have it. On what basis do you say it should be extended to the solicitor?
35. MR JUMABHOY: The family have had contact seeking the appeal, but those instructing me were not present at the original trial so they have taken this up afresh and they have been corresponding and dealing with the appellant and preparing this case. In the light of that I think a substantial amount of work, and certainly from the papers received from those instructing me, a substantial amount of work has been done in the preparation of that appeal, and, insofar as the family are concerned, they have expended a substantial amount of money.
36. LORD JUSTICE RICHARDS: It is quite a narrow legal issue as to the correctness of the judge's ruling.
37. MR JUMABHOY: My Lord, yes.
38. LORD JUSTICE RICHARDS: And one did not need to go far outside the basic documents in order to present the argument.
39. MR JUMABHOY: But work still had to be done and as regards the limited nature of the work it was still done and the family, in my submission, should not be out of pocket given your Lordship's ruling.

(Pause)

40. LORD JUSTICE RICHARDS: No, we are not going to extend the representation order to cover the solicitor. Thank you both very much.