England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		19th October 2004

1. MR JUSTICE SILBER: The Director of Public Prosecutions appealed by way of case stated against a decision of the South-East Hampshire Magistrates sitting at Portsmouth, made on 7th April 2004, by which they dismissed a charge by the appellant against Philip Robert Patterson in which it was contended that he was in possession of an offensive weapon in a public place, contrary to section 1 of the Prevention of Crime Act 1953.
2. The words of that provision, in so far as are relevant to this application are that:

"(1) 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) In this section ..."offensive weapon" means 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."

3. The appellant has been represented at this hearing but the respondent has not. Yesterday, the respondent's solicitors applied to the court for an adjournment because the respondent had just received Legal Aid and the solicitors were still trying to find counsel to represent the respondent today. We decided to hear the appellant's submissions and then consider if we needed to hear submissions from the respondent, in which case we would have adjourned this matter.
4. The appellant's case before the Magistrates was given entirely by the reading of a statement from a Police Constable Webb. The respondent did not object. The respondent then gave oral evidence. The Magistrates have recorded the facts which they found, which were that the respondent went with his father to a shopping precinct at 3 o'clock on the day concerned and that he intended to leave a butterfly knife that he had with him at the shop where his father worked. The Magistrates found that the respondent could not do that because his father did not go straight to the shop and that prevented the respondent from leaving the knife at his father's shop.
5. The respondent was arrested by the police before he could take the butterfly knife to the shop. The Magistrates accepted that the respondent, when he originally left home with the butterfly knife, had intended to go to the shopping centre and then to his girlfriend's home. Later, after she finished work, they were going to go by bus to look after or to feed some horses. The respondent's evidence, which was accepted by the Magistrates, was that he required the butterfly knife to cut open the feed for the horse and cut open bales of straw or hay, and that he had no other reasonable motive to have that butterfly knife with him on the day concerned. It was also accepted by the Magistrates that the respondent was in possession of that butterfly knife because he was not intending to go home after meeting his father before going to the yard to deal with the horses in the way I have indicated.
6. The Magistrates also found that there was no evidence to dispute the reason given by the respondent for being in possession of the butterfly knife. The Magistrates found that the respondent had a reasonable excuse for being in possession of the butterfly knife and, accordingly, they found him not guilty.
7. The Magistrates raised two questions for consideration by the court, of which the first was whether the excuse advanced by the respondent for not having a butterfly knife with him in a public place was a reasonable excuse. The second question was whether, on the facts found, the Justices were correct to find the respondent was not guilty of possessing an offensive weapon.
8. It is appropriate to start with some general principles of law which are applicable to offences of this kind and they are:

(1) There is a distinction between articles which are offensive weapons per se and those articles which only come within definition of the offensive weapons because the person holding them intends to use them as an offensive weapon.

(2) A butterfly knife is an offensive weapon per se in that it is made for use for causing injury to the person. (See DPP v Hynde [1998] 1 CrAppR 288, BAILII: [1997] EWHC Admin 626, 296)

(3) Where a person is in possession of a butterfly knife, there will be "a very heavy burden on any person in possession . . . to satisfy any court that he had it for such an innocent purpose" to constitute a reasonable excuse (Gibson v Wallace [1983] 1 WLR 393 at 398)

(4) The time for determining whether a person has a reasonable excuse for having a butterfly knife is when he is found to be in possession of it.

9. Mr Michael Forster for the appellant contends that the Magistrates erred in concluding that the respondent had a reasonable excuse for being in possession of the butterfly knife. Mr Forster criticises the reasoning of the Magistrates, which was first that the respondent had a reasonable excuse for carrying the knife because he needed it to prepare food and bedding for the horse, and second that it was reasonable for him to have it, bearing in mind that he left home not intending to return home but to go to his girlfriend's house and then on to the stables in order to use it. Mr Forster contends that the reasoning of the Magistrates was flawed when they said that they derived assistance from the decision of the Court of Appeal in Southwell v Chadwick [1987] 85 Cr.App.R 235. The approach of the Magistrates, in that case, was as the Court of Appeal accepted, that it was a reasonable excuse for a person to have in his possession a machete knife in its scabbard and a catapult for use for killing grey squirrels, so that he could obtain food for his wild birds.
10. I agree with Mr Forster that the main issue with which the court was concerned in that case was the question of whether the two items were dangerous per se. The reasoning of the court was directed to that point, although they did say that in answer to the third question, which was if whether on the facts found they were correct in holding that the appellant had no reasonable excuse, the answer was in the negative. We agree with Mr Forster there is difficulty in following the reasoning of the court on how they reached that particular conclusion.
11. Mr Forster's main submission is that the Magistrates erred in the way in which they dealt with the decision of the Court of Appeal in R v Densu [1998] 1 Cr.App.R 400, BAILII: [1997] EWCA Crim 2864 The Magistrates referred to a passage in Densu at page 405 in which Gage J, giving the judgment of the court, said:

" . . . it could not be a reasonable excuse to say that he had [an offensive weapon] with him for his work. Even if it could be said that it was capable of being a reasonable excuse to have it with him for work, that, of itself, would provide no reasonable excuse for having it with him in the early hours of the morning."

12. The Magistrates said that they could distinguish the respondent's case from Densu because in Densu, the possession of the offensive weapon had been over a much longer period of time, while the Magistrates in the present case considered that it was not unreasonable for the respondent to intend to be in possession of the butterfly knife in public places for short periods of time between 3 pm and 6 pm. The Magistrates also explained that the respondent intended to leave the knife at his father's shop but that he had been prevented from doing so because his father did not go to the shop immediately. The Magistrates also attached importance to the fact that the respondent had intended to go to his girlfriend's house at 4 pm and stay until 5 pm or 6 pm and then go and feed the horses.
13. It is important to bear in mind that the essential ground of appeal in Densu was directed to the issue of whether the fact that the appellant in that case did not know that the item in question was an offensive weapon, was a matter relevant to the issue of reasonable excuse. Gage J dealt with that point by saying at page 405G:

"The fact that the respondent did not know it was an offensive weapon is not relevant to the issue of reasonable excuse."

That, in my view, was the ratio of the case of Densu, which therefore does not provide much assistance in determining the present appeal.

14. The thrust of Mr Forster's submissions was that Densu is authority for the proposition that any factor relied on by a defendant, which by its nature does not necessarily involve the possibility of the need for self-defence, is incapable of being a reasonable excuse for possession of a weapon offensive per se.
15. In my view, the starting point for considering that submission is the use in section 1(1) of the words "reasonable excuse" Those words are of wide purport and they give the fact-finders, whether they are the jury or Magistrates, a discretion to determine the case on the facts, applying the principles of law to which I have already referred.
16. I am unable to accept these submissions of Mr Forster because there is nothing to suggest that the words "reasonable excuse" should be fettered in the way that he has indicated. As my Lord pointed out in the course of argument, in the case of Houghton v Chief Constable of Greater Manchester [1986] 84 Cr.App.R 319, an off-duty policeman was returning from a fancy dress party in a policeman's uniform, carrying a truncheon. The issue arose in the course of this civil case as to whether or not that would constitute an offence. It was held that the words "reasonable excuse" in section 1(1) were wide enough to enable the off-duty police officer to be not criminally liable under section 1, because he had a "reasonable excuse" for carrying the truncheon. The approach in that case indicates the wide discretion that is given to the fact-finders. This is borne out by the decision in R v Ivey (15th August 2000 -- 200004/292/W3) in which Clarke LJ, giving the judgment of the Court of Appeal, explained that it was a question for the jury to determine if a defendant had a "reasonable excuse" for having a knife with him.
17. If I had been in any doubt about it, I would have also reached that decision for the additional reason that Mr Forster's submission entails rewriting the statute so that instead of the words "reasonable excuse", there would be a limited meaning given to it. Additionally, if, as I consider to be the case, Parliament had intended to give the fact-finders a wide discretion to determine whether some matter was a "reasonable excuse", they would have used precisely the words that they had actually used.
18. Thus, applying those principles to the facts of this case, the Magistrates were entitled to take the view that, on the facts of this case, there was a reasonable excuse, even though the respondent in this case might well have been fortunate in the way in which the Magistrates regarded his evidence. There has been no challenge, I add, that the Magistrates reached findings of fact that were not open to them. As I reached these conclusions, after hearing Mr Forster's submissions, it seemed unnecessary for there to be an adjournment because in my view the appeal has to be dismissed.
19. I return to the questions that we were asked by the Magistrates and conclude, in answer to the first question: "Whether the excuse advanced by the respondent of having the butterfly knife with him in a public place was a reasonable excuse", the answer is that the Magistrates were entitled to come to the conclusion that the excuse advanced by the respondent in this case was capable of being a reasonable excuse. In answer to the second question: "Whether, on the facts found, the Justices were correct to find that the respondent was not guilty of possessing an offensive weapon", my response is that they were entitled on the facts to find the respondent not guilty of possessing an offensive weapon.
20. Thus, subject to the views of my Lord, the appeal must be dismissed.
21. MR JUSTICE COLLINS: I agree. Mr Forster has relied particularly on Densu to which my Lord has already referred. It is worth noting that the headnote to that case in the Criminal Appeal Reports reads as follows:

"The defence of reasonable excuse only arose once it was accepted and proved that a defendant was in possession of an offensive weapon but, as a matter of principle, it could not be possible for a defendant to argue once found to have wielded an offensive weapon, that he did not know it was an offensive weapon. It was not permissible for lack of knowledge to be coupled with an explanation for the use of the weapon so a combination could provide a reasonable excuse, and accordingly the situations where the defence of reasonable excuse was available were restricted."

That seems to me, looking at the report, correctly to identify the true ratio of that decision. But Mr Forster relies on observations of Gage J at page 404G where he said this:

"As a matter of principle it cannot be possible for a defendant to argue, once found to have with him an offensive weapon, that he did not know it was an offensive weapon. The Act is an Act aimed at eradicating the carrying of dangerous weapons in public. The whole purpose of the Act is to provide strict liability in respect of objects regarded as dangerous. To allow lack of knowledge to be raised as a reasonable excuse defence would defeat the purpose of imposing strict liability in respect of the possession of such a weapon. This is so where the object is an offensive weapon per se."

Then comes the sentence which my Lord has already cited at the foot of page 405 in which he said:

"Given the purpose of the legislation, in our judgment, it could not be a reasonable excuse to say that he had it with him for his work."

22. I confess, for my part, that I have some difficulty in accepting that sentence without qualification. I recognise, and entirely accept, that the purpose behind this legislation, in respect certainly of offensive weapons per se, is to prevent their being carried in a public place. As a general proposition that must be right. On the other hand Parliament has, even with offensive weapons per se, provided that a defence of reasonable excuse can be raised. In my judgment, it is impossible to put the very narrow construction upon those words which Mr Forster submits is the correct one.
23. That, as it seems to me, in any event, is not supported by another decision of the Court of Appeal Criminal Division which Mr Forster has put before us, R v Ivey, decided on 15th August 2000, 200004292/W3. That was a case in which the appellant had been stopped by the police when driving his motorcar, and when he was searched a butterfly knife was found in his back pocket. He said that he was moving house. He did not normally carry a knife, and his explanation for having it in his possession was that he had moved out of his girlfriend's house some two or three weeks before and that he had kept his belongings in the car for some time, including that knife. That particular day when he was stopped he was moving to another address and he had put the knife in his back pocket in order that he would not forget that it was in the car and that it could properly be taken to his house.
24. That defence the judge at trial regarded as no reasonable excuse and, as a result of the judge's ruling, the appellant entered a plea of guilty. The Court of Appeal, in allowing his appeal, said this in paragraph 29 of the judgment:

"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."

25. There is nothing in those observations which suggests that the words should be limited to the extent that Mr Forster submits is appropriate as a matter of law. Having said that, I entirely accept that it will be an exceedingly rare case in relation to an object which is an offensive weapon per se that, absent some sort of necessity or some immediate temporal connection between the possession of the object and the innocent purpose for which it is being carried, that the Tribunal of fact will be persuaded that there is a reasonable excuse.
26. For my part I think that this respondent was exceedingly fortunate in the decision on the facts that the Justices reached. However, I cannot say that it was a decision which they were unable, as a matter of law, to reach. In those circumstances, I too would dismiss this appeal. Thank you.