England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE HENRY: This is an appeal by way of case stated from the decision of Mr Stephen Day, Stipendiary Magistrate, who at the Uxbridge Magistrates' Court on 24th January 1997 dismissed a charge that the respondent on 15th November 1996, without lawful authority or reasonable excuse, had with her in an aerodrome in the United Kingdom (Heathrow) an article, namely a butterfly knife, made or adapted for causing injury contrary to Section 4(4) of the Aviation Security Act, 1982.

2. The knife in question fits the following description which is to be found in the Schedule to the Criminal Justice Act, 1988 (Offensive Weapons) Order 1988 (SI 1988/2019):

3. The Explanatory Note to the Statutory Instrument (which is not part of the Order) describes the statutory background to that definition:

4. This Order specifies descriptions of weapons to which Section 141 of the Criminal Justice Act, 1988 applies. Antique weapons which are defined as weapons over 100 years old at the time of the alleged offence, are excluded. "

5. Section 141 does not cover the offence with which Miss Hynde was charged, namely simple possession of " certain dangerous articles " under the Aviation Security Act, 1982. That, so far as relevant provides:

6. It will be seen that the definition of offending articles under that Section is a more elaborate version of the definition of " offensive weapon " under the well-known Prevention of Crime Act, 1953, which makes it an offence for a person to have with him in any public place an offensive weapon without lawful authority or reasonable excuse. Offensive weapon is there defined as:

7. It will be seen that both definitions refer to three categories of dangerous and/or offensive weapons:

8. This knife was not adapted in any way, and the Prosecution did not seek to show that the Respondent intended to use it for causing injury to the person - it was contained in a pouch with other items in her washbag inside a suitcase. The issue was whether it was made for causing injury to the person.

9. The Crown sought to prove this simply by producing the knife, and referring the Magistrate to Section 141 of the Criminal Justice Act, 1988, and the Statutory Instrument made thereunder. They submitted that as Section 141 of the Criminal Justice Act, 1988 forbade, inter alia, the selling or hiring or lending of butterfly knives, it was appropriate to infer that a butterfly knife was a dangerous article as defined in Section 4.

10. The Magistrate was not persuaded. He states in Paragraph 6 of the case:

11. Accordingly I found that the Appellant had failed to discharge its burden of proving an essential element of the stated charge, that the butterfly knife was made or adapted for causing injury, and, without the Respondent having to open her Defence or call evidence, dismissed the charge. "

12. He then posed the question for us:

13. The magistrate had to decide whether the butterfly knife was made ... for causing ... injury to the person ", and not whether it was used for that purpose. Though the definition has been on the statute book now for 44 years, I imagine that seldom if ever has oral evidence been given of a manufacturer's intention. In relation to butterfly knives, as both the manufacture of such knives in this country and the importation of such knives from abroad are criminal offences under Section 141 of the Criminal Justice Act, 1988, one would hardly expect the Crown to be required to call a manufacturer to make out their case.

14. The starting point for legal analysis is R -v- Williamson [1978] 67 Cr App R 35. There Lord Lane CJ emphasised the three categories of dangerous or offensive weapons wrapped up in the statutory language, and that it was a matter of fact for the jury whether the weapon fell into any and if so which of those categories. He said this:

15. In the present case this is well illustrated. Each side has submitted forcefully to the Court his own views about the sheath-knife. The Crown have asked this Court to rule that in every case a sheath-knife is an offensive weapon per se; by that it is meant that it is the kind of weapon made for causing personal injury. With equal force and not less eloquently, the appellant says this Court should decide that as a matter of law a sheath knife is not made for causing personal injury. And the fact that there is that divergence of opinion illustrates more clearly than anything else that it is not for the Court to decide this matter it is for the jury. One only has to pause for a moment to consider what is meant by a sheath-knife. It is not described as a weapon. It means a knife in a sheath. That is not what the jury are worried about or should be worried about. They should be concerned with the nature of the knife which is in the sheath. To suggest that this Court can determine in advance the nature of every knife which may be in a sheath demonstrates the absurdity of the situation in which the Crown finds itself. We do not know what this knife was like and even if we did, it is not for us to usurp the functions of the jury and decide into which category it falls under the Prevention of Crime Act, 1953. In short the judge was wrong in ruling as he did. It was on the basis of that incorrect ruling that the plea was changed to one of guilty. It was an error of law that the ruling was made. Consequently this conviction must be quashed. "

16. The magistrate, of course, was in his court both judge and jury, but still was rightly concerned as to whether the question at issue was one of law for the judge, or one of fact for the jury. And Williamson is a good working example of how in practice juries decide the purpose for which the knife was made. They decide this by looking at the weapon, doubtless hearing submissions as to various suggested uses, and then using their commonsense - a bayonet may be used as a toasting fork, but it is still made for causing injury to the person.

17. There are cases where it is perfectly clear that the weapon was made or adapted for causing injury to the person - a service rifle, a sawn-off shotgun, a bayonet, a cosh, a knuckle-duster, a dagger or a sword-stick. And since 1983, after a line of authorities central to this case, a flick-knife. Such weapons should be distinguished from items manufactured for peaceful use, eg a razor or a boy-scout's sheath-knife, which only become offensive weapons under the third category, when the intention is to use them for causing injury to the person.

18. That conclusion was challenged by case stated to the Divisional Court, the Prosecution seeking the Court's guidance as to whether the flick-knife was made for causing injury, or must it be proved in every case that it was being carried for an offensive purpose before a conviction can be secured.

19. The first thing I get from that authority is the clear similarity between a flick-knife and a butterfly knife. Two features may be noted. I quote from Griffiths LJ (as he then was) who gave the main judgment. First, at p 64:

20. That is equally true of the butterfly knife, the design feature of which is that it can be concealed in the hand and the blade exposed by a flick of the wrist.

21. Second, both flick-knives and butterfly knives have been to the same extent outlawed by Parliament. I have already outlined Section 141 of the Criminal Justice Act, 1988 and the Order made under it relating to butterfly knives. There are similar restrictions as to the manufacture and disposal and importation of flick-knives under the restriction of the Offensive Weapons Act, 1959, as amended in 1961. Both the form of the legislation relating to flick-knives and the omission from it of the case of simple possession follow the same pattern as with butterfly knives. Griffiths LJ said:

22. He then concluded, in words which mutatis mutandis can in my judgment be extended to butterfly knives:

23. That authority was considered by the Court of Appeal, presided over by the Lord Chief Justice, Lord Lane, in the case of R -v- Simpson [1983] 78 Cr App R 114. Lord Lane gave the judgment of the Court. In conclusion he said:

24. ´There are these two reasons why we should have a doctrine of judicial notice. In the first place it expedites the hearing of many cases. Much time would be wasted if every fact which was not admitted had to be the subject of evidence which would, in many instances, be costly and difficult to obtain. Secondly, the doctrine tends to produce uniformity of decisions of matters of fact where a diversity of findings might sometimes be distinctly embarrassing.'

25. It is never easy to say where the line should be drawn in this type of situation. This Court has held that the category into which a sheath-knife falls is a matter for the jury - Williamson (supra) - because in effect it depends on the sort of knife which was in the sheath. We think the flick-knife falls on the other side of the line and that these knives do come into the category of weapons which are offensive per se, namely the first category which is raised by the definition is Section 1(4) of the Act. These weapons are plainly designed by the manufacturers to be carried conveniently in the hand or in the pocket and there concealed to be brought into use with the minimum delay to the assailant and the minimum of warning to the victim. There is no pause while the blade is pulled out from the handle against the spring or is removed from its sheath by hand. By their very design in this way they betray the purpose for which they were made . (emphasis added)

26. Once one reaches the conclusion, as we have done, that a knife proved to be a flick-knife necessarily is one made for use for causing injury to the person, we take the view that it is a matter of which judicial notice can be taken and the jury can be directed accordingly. That is what we believe Griffiths LJ intended and we respectfully agree with his conclusion in all aspects of his judgment. "

27. On the concept of judicial notice, Andrews & Hirst on Criminal Evidence (2nd Edition at 5-02) sensibly say that it is " in large measure an application of common sense ".

28. There was one respect in which Lord Lane's judgment may have qualified Griffiths LJ's, and that was in relation to the earlier legislations "outlawing" flick-knives. He said of this legislation:

29. I bear that warning in mind in relation to Section 141 of the Criminal Justice Act, 1988.

30. It seems to me that the words I have underlined in Lord Lane's judgment demonstrate the evidence that should have persuaded the Magistrate that this butterfly knife was made for the infliction of injury to the person:

31. While my impression is that the Courts have not had to deal with nearly as many butterfly knives as flick-knives, the fact remains that Parliament was sufficiently concerned as to them to outlaw them to the extent that Section 141 of the Criminal Justice Act and the Order made under it did. And there has not, so far as I am aware, been any complaint that they are objects of ordinary, everyday utility manufactured for peaceful purposes which should not have been so proscribed. Just as the courts have taken judicial notice of the fact that flick-knives are offensive weapons, so I believe that butterfly knives should also be so treated, because it is in my judgment clear that they are essentially the same weapon involving the same features of concealment, speed and surprise as the flick knife. Both have been "outlawed" by Parliament, and in all the circumstances justice would be affronted if either in every such case there had to be oral evidence of the manufacturer's intention, or that the same butterfly knife might be found to be an offensive weapon by one fact finding tribunal and not by another. The mischief goes further than that - if in this case the manufacturer or importer or person who sold the butterfly knife to Miss Hynde had been accused with her, then they would have had to be convicted under the provisions of the Criminal Justice Act, 1988 (Offensive Weapons Order 1988) on the basis that the butterfly knife was an offensive weapon covered by Section 141 of the Act, but Miss Hynde could be acquitted because the fact finding tribunal did not consider the matter proved, despite the fact that the same statutory test was involved. Such a result would bring the law into disrepute.

32. I would answer the question in this case:

33. The learned Stipendiary Magistrate was not correct in holding that further evidence was required to establish that a butterfly knife was an article made ... for use for causing injury to ... a person - "By their very design they betray the purpose for which they were made" (per Lord Lane LCJ in R -v- Simpson supra).

34. In my judgment the Stipendiary Magistrate could and should have taken judicial notice of that fact.

35. While in my judgment he was wrong, he cannot in all the circumstances be criticised for that for it does not seem that the essential cases of Williamson, Gibson -v- Wales, and Simpson were cited to him.

36. Though we answer the question in that way, we do not remit the case to him with a direction to convict because the Crown Prosecution Service had already taken the view that while they wished the law to be clarified, they did not think it right to seek to disturb the dismissal of the charge against the Respondent. This is not infrequently done when the Crown's appeal deals with points of general public importance - and we note that this course was followed in Gibson -v- Wales .

37. While we were finally satisfied that it would be in the overall interests of justice for us to hear and determine this case, we did not do so without having regard to the general rule that the Court should not determine academic points, that is points where the Respondent has got everything he sought, and is unaffected by the outcome of the appeal. There is a discretion in the Court as to whether or not to hear such appeals. The major practical effect of the Respondent having no interest in the outcome of the appeal is that he or she will not be represented. Then the danger is that the adversarial system will not work as it was meant to, as the case will not be resolved by the clash of competing arguments. However, the Court can in appropriate cases get over that difficulty by seeking the appointment of an amicus. We decided in this case that the point was one of importance, and having read the authorities, concluded that the law was clear, as set out by Lord Lane in R -v- Simpson , and in those circumstances decided that it would be in the public interest if we were to hear this case rather than postpone the resolution of the point to another day when an amicus could argue the Respondent's case.

38. LORD JUSTICE HENRY: This appeal will be allowed for the reasons set out in the judgment that has been handed down and is available. Is there any addition consequential relief that is sought?

39. MISS KARMY-JONES: My Lord, my instructions are to apply for costs in this matter.

40. LORD JUSTICE HENRY: You are applying on behalf of the C.P.S. effectively?

41. LORD JUSTICE HENRY: Costs against whom?

42. MISS KARMY-JONES: My Lord, presumably against Miss Hynde.

43. LORD JUSTICE HENRY: You undertook to her that her position would not be worsened.

44. LORD JUSTICE HENRY: How can you possibly ask for costs against her,

45. MISS KARMY-JONES: My Lord, yes. My instructions are merely to apply for costs.

46. LORD JUSTICE HENRY: How can you be given those instructions when they are counter to the arrangements, as I understand it?

47. MISS KARMY-JONES: My Lord, I fully accept that.

48. LORD JUSTICE HENRY: You will not be surprised to hear that

49. MISS KARMY-JONES: No, my Lord, thank you.