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
		22 October 2015

1. MR JUSTICE MITTING: On 19 March 2015 the appellant was arrested for being drunk and disorderly, a charge to which he later pleaded guilty before District Judge Thomas sitting at the Bridgend Magistrates' Court. He was taken to the police station. There he was asked to remove his leather belt which was fastened around his waist. When removed, the belt could be disassembled and its buckle removed. The buckle was in the form of a knuckleduster. It is possible that when removed, it could have been used as such. It certainly appeared to be made of steel and had four finger-holes and a bar on the palm side. When the rings were placed over the proximal phalanx of each finger, it would have been a perfectly proper conclusion to reach that it was capable of inflicting injury on a person.
2. The prosecution case was that it was an offensive weapon per se. The defence case was that it was a buckle for a belt and was no more than a fashion item.
3. At an unscheduled trial of a preliminary issue identified by the district judge, he decided as a fact that it was being used as a buckle and was not an offensive weapon per se. He decided that its use as an offensive weapon would require the removal and disassembling of the belt and the removal of the "buckle". He found that to "negate the idea that this was in fact a weapon at all", and there was no evidence of an intention on the part of the appellant to use it as a weapon. There is no challenge to the latter finding.
4. The prosecution appeals by way of case stated. The question posed by the district judge in the case is as follows:

"Was I right to conclude on the facts of this case that this was not an offensive weapon per se and in fact not an offensive weapon at all?"

Mr Boyd, for the Director of Public Prosecutions, submits that he answered both questions erroneously.

5. The case records that the district judge either himself referred to or was referred to only two cases: Ohlson v Hylton [1975] 1 WLR 724 and Copus v Director of Public Prosecutions [1989] Crim LR 577. It is unfortunate that he was not referred to the leading cases on the issue which he actually had to decide. They are R v Williamson (1978) 67 Cr App R 35; R v Simpson [1983] 1 WLR 1494; Director of Public Prosecutions v Hynde [1998] 1 WLR 1222; and R v Vasili [2011] 2 Cr App R 5. Those cases together give authoritative guidance to courts seeking to determine whether an item was made for causing injury, one of the ways in which a court can conclude that an item was an offensive weapon for the purpose of section 1 of the Prevention of Crime Act 1953. Subsections (1) and (4) provide:

"(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."

6. Offensive weapons fall into three categories as identified by Henry LJ in Hynde at page 1225:

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

1. those made for use for causing injury to the person;

2. those adapted for use for causing injury to the person;

3. those intended by the person having it with him for use for causing injury to the person. It is only in this third category that the intention of the person carrying the weapon becomes relevant."

7. Whether or not an article is an offensive weapon is in principle a question of fact. As was stated by Lord Lane CJ in R v Williamson (1978) 67 Cr App R 35 at pages 38-39:

"It is for the jury to decide these matters. It is for the jury to decide whether a weapon held by the defendant was an offensive weapon, bearing in mind the definition in the Section which I have just read. Consequently whether the object in the possession of the defendant in any case could properly be described as an offensive weapon is a matter not for the judge but for the jury to decide. The jury must determine whether they feel sure that the object was made or adapted for use in causing injury to the person or was intended by the person having it with him for such use by him."

8. Some items, however, "betray the purpose for which they are made" "by their very design", such as flick-knives (see Simpson at page 1499). In such cases, judicial notice may be taken of the fact, and a jury directed that they must find, that the article is an offensive weapon (ibid page 1500). Items in that category were identified by the court in Hynde at page 1226:

"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."

9. Some further guidance as to what may and may not be an offensive weapon is provided by paragraph 1 of schedule 1 to the Criminal Justice Act 1988 (Offensive Weapons) Order 1988/2019, which list weapons deemed offensive for the purposes of section 141 of the 1988 Act which prohibit a person from manufacturing, selling, hiring or offering for sale or hire, et cetera, a weapon to which the section applies or having such items in possession for those purposes. Paragraph 1(a) identifies as the first in the list:

"A knuckleduster, that is, a band of metal or other hard material worn on one or more fingers, and designed to cause injury, and any weapon incorporating a knuckleduster."

10. In that provision, too, as in section (1) of the 1953 Act, the actual or perhaps deemed intention of the manufacturer is a relevant factor. Whether it is made to cause injury or designed to cause injury is one of the statutory characteristics of a knuckleduster which Parliament has decreed results in it being deemed to be an offensive weapon.
11. Case law also establishes that a weapon such as a flick-knife does not cease to have been made for causing injury to a person simply because it is incorporated into an article which has another use, in Vasili a lighter (the suggestion was that a flick-knife and a lighter used together could be used for the purpose of making cannabis more flexible and so more usable).
12. The prosecution case on present facts was simple: this article was made for causing injury to the person; the fact that it also served as a buckle did not make it any less an offensive weapon than if it had not been so used.
13. I would have no difficulty in accepting on the basis of the authorities cited that if the article when removed from the appellant's belt was, as manufactured, a knuckleduster (ie an item with the characteristics of a knuckleduster made or designed for the purpose of causing injury to the person), it must be taken to have been made for the purpose of causing injury to the person and so be an offensive weapon per se, even though it was worn on a belt and also served the purpose of being the buckle of the belt. I would reach that conclusion whether or not the knuckleduster was applied by the person who acquired the belt for it to serve as its buckle or was sold as an item by a manufacturer and then applied to the belt by the manufacturer of the belt. But in a case in which (as this case may be, for reasons which I will explain) the item having the appearance of a knuckleduster has features which as a matter of common sense would not ordinarily be found on a knuckleduster, it may be open to a fact-finding tribunal to conclude that it was not a knuckleduster made for the purpose of causing injury to the person.
14. The district judge decided this case not having examined the belt and buckle or knuckleduster produced from police custody to him but on the basis of having seen, according to his recollection, only one photograph which simply showed the outward part of the item, that over the outer parts of each finger. Other photographs said to have been of the item in question show that it has an unusual feature: two holes pierced in metal protruding from the palm side of the item, into which, we are told by Mr Boyd, one of the prongs of the belt fitted, the other prong being fitted into the belt for the purpose of tightening it and perhaps of holding up the trousers worn by the appellant. It is therefore at least possible that the item which the district judge had to consider was not designed or made for the purpose of causing injury to the person, but, even though it might have been put to that use when removed from the belt, was in fact made as the buckle of the belt so as to make the belt with that buckle a fashion item. If that were so, then, notwithstanding that judicial notice must be taken of the fact that knuckledusters are offensive weapons, it was possible for the district judge to conclude that this item was not an offensive weapon per se.
15. The route by which he arrived at that conclusion was not, however, legally acceptable. He in effect, for the reasons that I have expounded, based his decision on the intention of the wearer of the belt with this item as its buckle. That did not address the prosecution case, which was that however you look at it, this was a knuckleduster made for the purpose of causing injury to the person even though it also served another purpose.
16. With respect to the district judge, he arrived at his conclusion based on the third means by which an item might be assessed to be an offensive weapon to decide the first question, which was whether or not it was made for the purpose of causing injury to a person. That, with respect to him, is not a legitimate approach to the question that he had to decide.
17. Given the possibility that it would have been open to the district judge to decide that this was not an offensive weapon per se, for the reasons which I have attempted to explain, I would quash his decision and remit the case to him to examine the original item if he can and reach a fresh decision on the issue in the light of the law as I have described it to be.
18. The issue is potentially one of some importance, because if these are indeed fashion items widely worn in England and Wales then the wearers need to know that they are at risk of prosecution for an offence which now carries a mandatory minimum sentence for an adult of 6 months' imprisonment, as is apparent from subsections 2A to G of section 1, subject only to the court concluding that it would be unjust to impose that minimum term in all the circumstances.
19. LORD JUSTICE BEATSON: I agree with my Lord's judgment as to the outcome and as to the reason the district judge fell into error. I add a few words of my own because of the circumstances of the case.
20. The Criminal Procedure Rules encourage those sitting in magistrates' courts to dispose of cases efficiently and without delay. This is of course a meritorious policy and it is necessary for those sitting to do so in view of the busyness of their lists. But this case is an illustration of how what may appear to be a straightforward matter can turn out not to be and the need for care before proceeding to an unscheduled trial.
21. The consequence in this case, as my Lord has set out, is that the district judge made his decision without examining the two parts of the item in question, the metal part and the leather part, and there was also no evidence before him as to the circumstances and purpose for which this item was made or manufactured, ie whether the manufacturer had bought knuckledusters, adapted them and put them together with the strap or whether the metal part was manufactured as a buckle for a belt.
22. The matter will now have to be remitted when these issues can be explored in accordance with the principles of law identified by my Lord.
23. MR BOYD: Thank you, my Lords. I have no applications.
24. LORD JUSTICE BEATSON: Thank you.