QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF GEORGE BAYLISS||(CLAIMANT)|
|DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR R SADD (instructed by CPS, Ipswich IP ITS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"1. Subject to subsections 4 and 5 below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence.
"2 . . . this section applies to any article which has a blade . . .
"4. It shall be a defence for a person charged under this section to prove that he had a good reason or lawful authority for having the article with him in a public place . . ."
"This court is clearly of the opinion that the words 'has with him in any public place' must mean 'knowingly has with him in any public place'. If some innocent person has a cosh slipped into his pocket by an escaping rogue, he would not be guilty of having it with him within the meaning of the section because he would be quite innocent of any knowledge that it had been put into his pocket."
"In the judgment of this court [that the argument that lack of memory or knowledge negatives possession is fallacious], it is true that a man does not necessarily possess every article which he may have in his pocket. If for example some evil-minded person secretly slips a portion of cannabis resin into the pocket of another without the other's knowledge, the other is not in law in possession of the cannabis. That scarcely needs stating. But the present situation is different. Here the applicant himself put the cannabis into his wallet knowing what it was and put the wallet into his pocket. In our judgment, subject to the authorities to which reference will have to be made in a moment, he remained in possession even though his memory of the presence of the drug had failed or disappeared altogether. Possession does not depend upon the alleged possessor's powers of memory. Nor does possession come and go as memory revives or fails. If it were to do so, a man with a poor memory would be acquitted. He with the good memory would be convicted."
"As to the law as stated in those four cases, one comment must first be made. In those concerning drugs, the consideration is that of possession. In those concerning offensive weapons, it is having them in a public place. To have something with one necessarily requires, we think, closer contact, as it were, with mere possession. Every case of 'having' is one of 'possessing', but it does not necessarily follow that every case of 'possessing' is one of 'having' within the meaning of the relevant statutory provisions. However, for the purposes of the instant case, and having regard to the earlier decisions to which we have referred, in our view, the relevant considerations as to recollection and forgetfulness are the same."
"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, 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 no need to leave to the jury the question whether 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."
"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 at 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 . . .
"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 case, 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."
"In my judgment, Mr McGuiness is right to say that it is important to concentrate on the time in respect of which the defendant is charged. Six days earlier, no doubt this man had the knife on him for a good reason because the justices found that it was a knife that he used in his work and would have had it with him at his work and might well have put it into his pocket at work six days earlier . . . In my judgment, forgetfulness may be a explanation, it cannot be a good reason."
"That statement of law is clear and unequivocal. Although we are not bound by it, we have no reason to doubt its accuracy."
"The lock knife was an article covered by the provisions of section 139 of the Criminal Justice Act 1988, and given the short time period between the defendant using it on 30 December and visiting Tesco's on 31 December, the combination of the facts, that the appellant had been using the lock knife for a legitimate purpose on 30 December and forgotten he had it with him by the time he went to Tesco's on 31 December, did not in this particular case amount to good reason within the meaning of the section."