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
		24 February 2010

1. LORD JUSTICE LAWS: I will ask McCombe J to give the first judgment.
2. MR JUSTICE McCOMBE: This is an appeal by way of case stated from the decision of the Brentford Youth Court made on 7 April 2009 to convict the appellant, Harjinder Singh Chahal, of possession of a bladed article, contrary to section 139 of the Criminal Justice Act 1988. This section, so far as material, provides as follows:

"(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) Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocketknife.

...

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

(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him—

3. (a) for use at work ..."

The remaining parts of this section are not material.

4. There is an application before the court for extension of time in which to bring the appeal. We have read the written arguments and heard submissions from counsel on the merits and grant any extension sought. The delay does not in fact appear to have been entirely, if at all, of the appellant's own making.
5. The facts found by the Justices appearing from their case stated were broadly as follows: two police officers on mobile patrol had seen a silver BMW motor vehicle near the bus station on London Road in Hounslow. The appellant was one of the two occupants of the vehicle. One officer searched the appellant and found a lock knife inside his jacket. The appellant was asked for an explanation and said it was for use at work. On enquiry the officer found that the appellant appeared to be unemployed. The appellant was charged.
6. The appellant's evidence appearing from paragraph 7 of the stated case was this:

"... he occasionally worked for his uncle in construction business and used the knife to cut the straps off the boxes. He said he last worked on the Monday and he found the knife in the shop and used it some twenty minutes to remove the straps of the boxes. He then placed the knife in his jacket pocket. He explained that he worked in cold temperatures and wore his jacket. His uncle dropped him home and upon entering his home he placed his jacket straight in his wardrobe. He also gave evidence that following this he remained at home for some two days. Subsequently on Tuesday his cousins arrived from Birmingham and they made plans to meet up from 7 to 8pm. When they arrived to collect him from home the appellant hurriedly grabbed his jacket and left to watch a film at the Feltham cinema. He stated that whilst watching the film he realised the knife was in his pocket and immediately told his cousin and made plans with his cousin to return home and drop the knife. However en route the appellant and his cousin decide to pick up [another] cousin."

7. In cross-examination the appellant told the court that he had forgotten to place the knife back in the shop after using it to cut straps and open boxes.
8. The uncle also gave evidence: the employer concerned. He gave details of his business involvement in import and export construction materials and that he was also involved in the importation of rice from India. He said that the appellant, his nephew, worked occasionally for him, would assist him to open large rice containers shipped from abroad, and that the premises were old factory premises in a run down state. There were several tools and knives left on the premises during the factory operation. In cross-examination he confirmed that the appellant was working for him during the Christmas period: 21, 22 and 23 December, and also between 25 and 31 December 2008, the latter date being the one on which the alleged offence occurred. He was shown the knife in court and gave evidence that he could not be sure that that was the knife, although he had instructed the appellant to find a knife to cut straps off the boxes.
9. It was submitted on the appellant's behalf that he had had good reason for having the article with him in a public place for use at work. The court was referred to section 139 of the Act and, as appears from the case, they were also referred to several of the authorities material in this area of the law: R v Manning [1998] Crim LR 198, Jolie [2003] 167 JP 313, Bown [2004] 1 Cr App R 151 and DPP v Gregson [1992] 96 Cr App R 240.
10. The court retired to consider its decision after hearing that submission and returned to give the following reasons for its conclusion, which were these:

"On 31st December 2008 at London Road, Harjinder had with him in his possession a lock knife, in a public place. The reasons put forward by the defence are raised as a defence in law, that the defendant possessed the article for reasons for use at work.

We note certain factors raised including that Harjinder was in casual work on the day for his uncle, and used the lock knife, and subsequently had forgotten that he placed the knife in his jacket.

We note that the law states that forgetfulness in itself is not a 'good reason' in defence, but that other factors must also be considered in deciding whether the accused has proved its defence of 'good reason' on the balance of probabilities.

We note that you said you used the knife at work but we further view this as 'casual' based work with your uncle and at the time you did not require to use the knife on a regular basis for work. There has been no evidence to suggest this. After leaving work premises you went home and forgot as you claim."

[That seems to me to be an important finding accepting the truthfulness of the appellant's evidence]:

"Therefore based on the facts, and the circumstances around your possession of the article we find that the defence raised is not proved on a balance of probabilities. We have determined that there is no good reason in this case. We find you guilty of the offence."

11. The Justices have helpfully elucidated their reasons for what they said at the time, but I do not consider that it is necessary to refer further to those matters of elucidation.
12. On the present appeal Mr Dominic Thomas, for the appellant, urges that the statutory defence was made out and the court was wrong to reject it. In the skeleton argument, which is succinct and helpful, he submits that the casual nature of the work was irrelevant. He argues that having a knife for work, coupled with later forgetfulness, was capable of establishing the defence, even if the nature of the work was casual. If the appellant's evidence was accepted, he might, therefore, have to have been acquitted.
13. We have considered those submissions in the light of the decision of the Court of Appeal in the case of Jolie where the authorities are very fully summarised, including the case of Manning, to which Mr Mather has also referred us specifically this morning. It appears from Jolie that the court in that case found itself in some difficulty, with respect, with the reasoning in Gregson, but in an important paragraph Kennedy LJ (in giving the judgment of himself, Hunt J and Pitchers J) said this:

"We have set out the whole of that passage [that is the passage in Gregson] to demonstrate the reasoning, which we do not find entirely persuasive. If the defendant had a good reason for having the knife on him six days earlier, when did that good reason cease? Did it cease as soon as he returned home from work? What if he called at a public house on the way? What was it about the new statutory wording which prevented the tribunal of fact from considering not only the alleged forgetfulness but also the reason given for the knife being where it was, and the time involved, when deciding whether or not the defendant had established the statutory defence? If Gregson was rightly decided, it would seem to follow that a parent who, having bought a kitchen knife, put it in the glove compartment of a car out of reach of a child, and then forgot to retrieve it when he arrived home would be committing an offence next time he drove the vehicle on a public road. That does not seem to us to be what Parliament intended."

14. The court went on to consider Manning and the consideration that was there given to Gregson. Kennedy LJ in the same judgment in Jolie reached the conclusion that the decision in Manning was simply authority for the proposition that the words "good reason" do not require any judicial gloss. Forgetfulness alone would not amount to a good reason. However, forgetfulness combined with another reason might be sufficient, for example, in the case of a parent securing a knife in a glove compartment to prevent a child getting hold of it, and then forgetting about its existence in the example given by Kennedy LJ.
15. At paragraph 19 of the same judgment Kennedy LJ said this:

"Accordingly in our judgment where a defendant does seek to rely on section 139(4) the fact finding tribunal should be left free to consider whether in the circumstances the defendant has shown that he had a good reason for having the article with him in a public place. If forgetfulness is relied upon it does need to be said that alone it cannot constitute a good reason, but otherwise no legal direction is required."

16. In my judgment that is a broad factual test for the tribunal of fact, providing it bears in mind that forgetfulness, without some other good reason to support it, will not, of itself, entitle the accused to the benefit of the defence. The defendant needs to go further and demonstrate what the reason was for the knife being where it was.
17. On the evidence in this case, accepted by the justices, the appellant had used the knife at work, casual or not. He put it in his pocket in case he needed it again for that purpose, and had then forgotten about it. It was not kept in his pocket for any other intervening purpose. The lapse of time since he used the knife had been short. The fact that the work was casual, in my judgment, really goes nowhere. There was, in the circumstances, nothing sinister about the fact that he still had it in his possession some while after discovering it in his pocket.
18. It seems to me that the justices here appear to have been misled into thinking that the casual nature of the appellant's work deprived him of good reason without more, when the real question was whether the appellant had genuinely had a good reason for having the knife, and had then genuinely forgotten about it; and that in so far as he had the article with him when recollection was restored he still had a good reason for having it with him.
19. Given the facts found, and the timescale involved here, I do not consider that the casual nature of the appellant's employment was enough to deprive him of the statutory defence on the basis that his evidence, that after having left work he had gone home and forgotten about the knife, was accepted as truthful, as it seems to have been.
20. In the circumstances the question posed by the Justices in these terms:

"Did we err in law in not finding good reasons for having the article with him in a public place, on the balance of probabilities?"

falls to be answered in the affirmative. I would allow this appeal and quash the conviction.

21. LORD JUSTICE LAWS: I too would allow this appeal for the reasons given by my Lord and would answer the question posed by the Magistrates' Court in the way proposed by him.
22. MR THOMAS: I am obliged. This is the first case stated I have ever represented a client on. He is legally aided. I would ordinarily make an application.
23. LORD JUSTICE LAWS: You should have looked at that.
24. MR THOMAS: I should and I apologise. If your Lordship will give me a few moments.
25. LORD JUSTICE LAWS: He is legally aided, is he?
26. MR THOMAS: Yes.
27. LORD JUSTICE LAWS: Are you asking for costs against the Crown?
28. MR MATHER: I am not instructed to ask for my costs. I am not making any application.
29. LORD JUSTICE LAWS: You have lost. You are not entitled to any costs. We will make that order. You will also need, will you not, an order for a detailed assessment for the purpose of the Legal Services Commission?
30. MR THOMAS: Yes, taxation.
31. LORD JUSTICE LAWS: Look up the rules next time.
32. MR THOMAS: I will. I apologise.