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 WC2A 2LL
		21 October 2009

1. MR JUSTICE OPENSHAW: This is an application brought, with the permission of this court, by Hal Hilton, the claimant, for judicial review of a decision of the Crown Court at Canterbury to refuse to state a case for the consideration of the High Court, following the rejection by the Crown Court of the claimant's appeal against conviction which was heard and determined on 10 April of last year, and to compel them to do so.
2. The background is as follows: on 31 May 2007 the police were called to the Riverside Restaurant in Canterbury. The claimant was arrested and taken to the police station where he was searched. In the back pocket of his jeans the police found a folding lock knife with a 4-inch blade. In interview the claimant said that he had taken it from a friend earlier that day so as to disarm him and that he, the claimant, had forgotten that he had it with him. He was charged with an offence of possessing a bladed article contrary to section 139(1) of the Criminal Justice Act 1988. He pleaded not guilty and on 18 January 2008 he was convicted after a trial at Canterbury Magistrates' Court. He then appealed against conviction to the Crown Court, as we have said.
3. The hearing at the Crown Court was by way of rehearing before HHJ Williams and lay justices. The claimant formally admitted the fact of his arrest, and that he had the lock knife in his pocket at the time of his arrest. He gave evidence then on his own behalf, seeking to establish a defence under section 139(4) of the Act, by which:

"It shall be a defence for a person charged with an offence under the section to prove that he had good reason or lawful authority for having the article with him in a public place".

4. It is said that he had visited a friend of his earlier in the day, the friend being Mr Lott; that he had taken the knife from him fearing that his friend, following the breakdown of a domestic relationship, might have done something foolish with the knife; that he had put the knife in his pocket; that he had gone from his friend to meet his wife at a restaurant, and although it was his intention to destroy or dispose of the knife he had not had time to do so in the short time which was available to him.
5. The court gave judgment in these terms:

"The defendant's account as given to us in evidence is that earlier that day he had been in Hastings visiting his friend, Mr Martin Lott, whom we also heard from. Mr Martin Lott had this knife, he described it as a fishing knife, that was a present from his wife. He was going through a rocky patch in his marriage and was feeling down and said words to the effect of, 'she gave it to me, I would like to give it back to her', which this defendant took to be, as we understand it, a veiled threat against his wife, whereupon this defendant took possession of the knife. The defendant's case is that he then put [it] into the back pocket of his jeans and simply forgot about it for the rest of the day.

We, all three of us, unhesitatingly do not accept that evidence. We reject that evidence as being untruthful. In particular, we have in mind that the knife with the wooden handle and brass ends would have been hard, whereas the money in his pocket, even a substantial quantity which he tells us about, approximately £1,200 in cash, would not have been so hard. In any event, we do not believe that he could simply forget about this possession in the circumstances he says that it came into his possession.

In addition, when giving evidence, when asked if he had recounted the conversation between him and his friend Mr Lott to his wife in the restaurant he said yes, but then said that he had not told her about the knife. We find it inconceivable that if he had recounted the exchange between himself and Mr Lott, he would not then have remembered about the knife and at least told his wife about it and realised that he had needed to hand it to the police.

We have been referred to the law in the case of R v Jolie, a decision of the Court of Appeal criminal division, [2003] EWCA Crim 1543, which of course means that the Crown do not have to prove that he had it knowingly in his possession. We are perfectly satisfied that he had it knowingly in his possession in a public place. We do not necessarily have to go into his explanation of how it came into his possession, in our judgment that is unnecessary, and consequently we do not do so."

6. Mr Dos Santos, in his criticisms of the findings and the way in which it was expressed, says that it is clear from the learned judge's focus in the last paragraph which we have quoted that the judge concentrated solely on whether or not he knowingly had the knife in his possession, whereas, he says, that is but one element in possession. The issue in the case was not whether he had possession of the knife, which he conceded, but whether or not he had shown that he had good reason or lawful authority for having the article with him in a public place. Whereas, on one reading of the judge's findings, it may be possible to construe a rejection of all the claimant's evidence and the evidence of Mr Lott, including how he came by the knife in the first place, the judge did not make that entirely clear.
7. That there is force in that criticism, it seems to me, is made more likely by reason of the judge's response to the claimant's request to state a case. The judge, or rather the listing officer on behalf of the judge, replied by letter dated 22 May. Again I quote:

"The judge declines to state a case on the basis that the grounds put forward are frivolous. The appeal was declined on a issue of fact, the bench did not believe the defendant's evidence. There is no point of law here. In the judgment delivered, the judge made it plain that the court did not believe the defendant when he said he forgot he had the knife on his person. She said it was therefore unnecessary to go into the evidence of how it had come to be in his possession in the first place because the court had rejected his evidence of how it came to be on his person that night".

8. Even in that letter, it seems to us, there is a failure properly to distinguish between whether or not the knife was in his possession and whether or not he had a good reason or lawful authority for having it in his possession in the restaurant. It seems to us, therefore, that the judge did not make clear findings whether or not the defendant had properly made out the defence under section 139(4). The claimant was entitled to have the defence clearly considered and ruled upon. It may be that the judge did intend to make clear findings of fact against him, but if she intended to do so, she should have done so in ways which are not ambiguous, and demonstrate that she had the defence under section 139(4) clearly in mind.
9. For those reasons, I think that the dismissal of the decision to dismiss this appeal should be quashed and the matter returned to the Crown Court at Canterbury so that the matter can be reheard before a different court and proper consideration given to the defence under section 139(4).
10. LORD JUSTICE ELIAS: I agree. The question is whether he had good reason for having an article with him in a public place. He had given an explanation which, if it had been believed in full, was capable of constituting good reason, namely, that he had taken it away from a friend in order to prevent something potentially dangerous occurring, and that he had no realistic or reasonable opportunity to get rid of the knife. He was intending to get rid of it, he said, when he went home.
11. There are parts of the judgment which suggest that the court is rejecting the whole of this evidence, including his explanation as to how the knife originally came into his possession, but the end of the judgment appears to suggest that the court in fact reached no conclusion about that. Assuming they were accepting that it had come into his possession in a which meant that initially he had good reason for being in possession of it, the question with that reason is whether he had an opportunity to get rid of it and ought to have done so. It may be that, in that context, the court was focussing on the question of whether or not he genuinely forgot that he had it in his pocket. It may be that because they were not convinced that he genuinely (inaudible), they were satisfied that he did not genuinely have it, that they were implying that he could have, and should have got rid of it at an earlier stage. But they never spell that out, and there is a concern that the underlying defence that was run by this defendant was not properly considered by the court.
12. I should only add that it is unfortunate in the circumstances that a case was not stated by the judge, because it would have perhaps helped focus the mind of the court on precisely why they had convicted this defendant. This, plainly, was not in fact a frivolous appeal and it is unfortunate that no case was stated in the circumstances.
13. MR DOS SANTOS: My Lords, then the only issue to arise is that this is a defendant who, I understand, is not legally aided. The general rule, as I understand it, is where a party does not appear on behalf of the defendant, as in the case here, that the court would not ordinarily grant any costs. I believe that is the test usually, unless there is an issue of bad faith, which I make clear I am not suggesting in anyway. I raise the issue of costs, given this is a defendant paying privately, but I simply put it to my Lords, understanding full well that the authorities suggest that when the other party does not appear, the rules are generally that the court does not make a costs order.
14. MR JUSTICE OPENSHAW: No, I think that is right.
15. LORD JUSTICE ELIAS: I do not think there is much we can do to help you on that I am afraid.
16. MR DOS SANTOS: Very well. Thank you very much.
17. LORD JUSTICE ELIAS: Thank you for your submissions.
18. MR JUSTICE OPENSHAW: If you eventually succeed, you might be able to get a defendant's costs order and recover the costs of this hearing as well, but that is only a suggestion.
19. MR DOS SANTOS: Thank you, my Lord. That is a very sensible suggestion.