APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 1049/98
OPINION OF THE COURT
delivered by LORD PROSSER
FRANK CROWE, Procurator Fiscal, Hamilton
Act: Brodie, Q.C., A.D.; Crown Agent
Alt: Scott; Ross Harper
11 June 1999
On 5 March 1998, the respondent William Waugh appeared at a trial diet in the Sheriff Court at Hamilton, on a complaint containing two charges, both relating to events on 13 July 1997 at Camnethan Street, Stonehouse. Mr. Waugh pled guilty to the first charge, of breach of the peace, and not guilty to the second charge. The second charge was in the following terms:
"On 13 July 1997 you William Waugh did have with you in a public place, namely at Camnethan Street, Stonehouse, an article to which section 49 of the aftermentioned Act applies, namely a knife; contrary to the Criminal Law (Consolidation) Act 1995, section 49(1)".
A joint minute of admissions was lodged, and no further evidence was led on behalf of the Crown. Defence evidence was given by Mr. Waugh and two other witnesses. It is not disputed that Mr. Waugh did have a knife with him at Camnethan Street on the date in question; but the sheriff acquitted him, holding that the respondent had made out a defence of "good reason" in terms of section 49(4) of the 1995 Act. The procurator fiscal thereafter applied for a stated case. The question in the stated case is:
"Did I err in law in holding that the circumstance of the accused's possession of the knife in the pocket of the jacket worn in a public place afforded the accused the defence in terms of section 49?".
Section 49(4) of the 1995 Act is in the following terms:
"It shall be a defence for a person charged with an offence under subsection (1) above to prove that he had good reason or lawful authority for having the article with him in the public place".
The parties are not at issue as to the facts, nor indeed as to any inferences to be drawn from the facts. Mr. Waugh's home was at 115 Camnethan Street, Stonehouse. On the night of 12/13 July 1997, he returned by taxi to Camnethan Street with his wife and two other women. There was a disagreement between Mr. Waugh and his wife, and he parted from them. They entered the house at 104 Camnethan Street. Mr. Waugh committed the breach of the peace at the door of No. 104. He then crossed the road and entered his own home at No. 115. He had been wearing a white shirt with no jacket. It was raining. He re-emerged from his home after approximately two minutes, wearing a fishing jacket. He was later approached by police constables outside No. 104, and shortly afterwards was arrested. On the way to the police station, he told the police officers "I'd better tell you I've got a knife in my pocket", and was told to leave it in his jacket. At the police station a knife was found in a pocket of the jacket.
Putting matters briefly, Mr. Waugh is a keen and regular fisherman, who would wear the jacket in question when fishing, using the knife for common tasks involved in fishing. He had been fishing a few days before the night in question, and the jacket contained other items related to fishing. He had left the knife in the jacket, and the sheriff has held that when he left his house wearing the jacket again, to seek admission to the neighbour's house where his wife was, he had forgotten the knife was in the pocket of the jacket. He had remembered after being arrested in respect of the breach of the peace. It is in no way suggested by the Crown that Mr. Waugh's having the knife with him, in the pocket of the jacket which he had put on, was in any sense intentional or with a purpose; and indeed, it is accepted that he was not at any relevant time even aware that the knife was in the pocket. Correspondingly, there is no suggestion that in going home and putting on the jacket, Mr. Waugh was doing anything other than putting on a suitable garment, because it was raining. We would add that it was not suggested that in considering whether the sheriff had erred in law, this court would need to ask itself whether someone in Mr. Waugh's position "ought to" remember that he keeps a knife in his fishing jacket, so that he "should have" stopped to remove it before leaving the house: in contending that the sheriff had erred, the Crown did not rely upon any supposed blameworthiness of this type, and submitted simply that the facts which we have set out did not and could not constitute "good reason", as a matter of law.
In explaining why he was satisfied that Mr. Waugh had made out a defence of "good reason", the sheriff takes as his starting point that on the last occasion that Mr. Waugh had used the knife, some two days before, it was in unobjectionable circumstances, as it had been in the course of a fishing expedition. The knife having thereafter been left in the jacket pocket, and Mr. Waugh having forgotten that it was there, although telling the police as soon as he remembered, the sheriff does not elaborate, simply saying that "in all the circumstances" he was satisfied that the respondent had a good reason, though not lawful authority. In referring to all the circumstances, it is clear that the sheriff is not referring only to the unobjectionable circumstances two days before, nor only to the fact that on the night in question Mr. Waugh put on the jacket without remembering the knife in the pocket, but to the combination of the whole background circumstances. It is also, of course, clear that in finding "good reason" in these background circumstances, he is looking to the reason for the particular situation coming about, in which Mr. Waugh came to have the knife with him in the public place. He is not saying that Mr. Waugh had a good reason for having the knife, in the sense of having a purpose or intention which was regarded as acceptable: since Mr. Waugh did not know he had the knife, he of course had no reason in that purposive sense.
On behalf of the Crown, it was submitted that the word "reason" in section 49(4) must be read as equivalent to "purpose". As a matter of language, the word "reason" does not seem to us to be limited in that way. Just as the question "Why?" can be answered in terms of either cause or purpose (because X had happened, or in order that Y might be done), so too the reason for a specified situation existing can in our opinion always be properly described in terms of the prior facts and events which brought it about, although in those situations where human purpose and intention are in point, a reason in terms of such purpose or intent may also be identifiable. As the Crown were at pains to emphasise, in presenting this appeal, the offence under section 49 is committed not only when a person has an article such as a knife with him in a public place knowingly (and thus perhaps intentionally or with a purpose) but generally, and regardless of such matters as knowledge or intent. Since the section is thus dealing with what one may call objective situations, in which ex hypothesi the accused may be entirely ignorant of the knife's presence, we should expect any reference to a "reason" in relation to that situation to cover reasons of the "because" type, as well as the "in order to" type. In any event, if there are alternative meanings, we would be reluctant to construe an offence-creating provision in the manner more prejudicial to an accused.
The proposition advanced on behalf of the Crown did not, however, rest simply upon an alleged general meaning of the word "reason". We were referred to Lister v. Lees 1994 S.C.C.R. 548, and D.P.P. v. Gregson (1993) 96 Cr. App. R. 240. In each of these cases, the defence involved what was, or might be regarded as, a good reason, in the purposive sense, for having the article in question at an earlier time, with the accused then forgetting that he had it or forgetting to throw it away. Much that was said in these cases was not, and we think could not be, disputed on behalf of Mr. Waugh. Without going into detail, having a knife for a good reason at some earlier point in time does not constitute a good reason for having it in the public place at the relevant time; and forgetfulness cannot be a good reason. One is not concerned with the expression "reasonable excuse" which is found in certain other provisions, but with the quite different expression, "good reason". Nonetheless, it does not seem to us that the contention advanced on Mr. Waugh's behalf, and accepted by the sheriff, was to the effect that good reason at an earlier time constituted good reason at the relevant time, nor that "forgetfulness" constituted good reason. The proposition was that the reason why Mr. Waugh had the knife with him on the relevant occasion was the combination of circumstances, including both the reason for the knife being in the pocket of the jacket, the reason for putting on the jacket and the fact of forgetting that the knife was where it was. It is in that combination of circumstances that one finds the reason for Mr. Waugh having had the knife with him in the public place on the occasion in question; and giving the word "reason" its normal breadth of meaning, together with the fact that there is plainly no purposive reason on this occasion, that is in our opinion not only a reason, but the reason, for Mr. Waugh having the knife with him. In Gregson, at page 243, McCowan L.J. says at page 243 that in his judgment "forgetfulness may be an explanation. It cannot be a good reason". Speaking of forgetfulness on its own and in the abstract, we would not dispute that. And we would be content with a general distinction between what may be called explanations on the one hand, and purposes and intentions on the other. But in our opinion, explanations can be equiparated with causal reasons, just as intentions can be equiparated with purposive reasons. The word "reason" appears to us to be of a breadth which covers both. And we would respectfully concur with what was said in Lister v. Lees at page 553, adopting what had been said by Lord Justice Clerk Grant in regard to "reasonable excuse" in Grieve v. McLeod 1967 J.C. 32 at page 36, to the effect that in relation to "good reason" each case must depend on its own facts and circumstances. We see no reason why one should restrict oneself to purposes and intentions, and ignore the actual facts and circumstances prior to and at the relevant time.
However, even if the word "reason" is not to be given what we would regard as an artificially limited meaning, the question in terms of section 49(4) is whether the accused has proved that "he had a good reason" for having the article with him in a public place. The question of whether an accused "had" a good reason can in our view be distinguished from the question of whether there was a good reason, and is perhaps suggestive of those reasons which are not external and objective, but are a matter of intention or purpose. We would not, however, see that as sufficient to rule out the possibility that a good reason might be found not in an accused's intentions, but in the whole facts and circumstances which brought the situation about. But there is a more important question: according to what criteria is one to consider and decide whether a particular reason is to be held as "good"? We would respectfully accept what is said by the court in Lister v. Lees at page 352, that "it is important to bear in mind the purpose of the legislation". The opinion of the Court continues as follows:
"The legislation contains a general prohibition against carrying in a public place an article with a blade or point, and the purpose of the legislation must be to protect the public from persons who may use such articles to cause injury or threaten others. In these circumstances before a reason put forward can be regarded as 'good reason' it must be a reason which would justify an exception to the general prohibition contained in the statute...We are satisfied that in determining whether any reason put forward amounts to 'good reason' the court should not be making any moral judgment".
And at page 553, it is said that the court must determine whether the reason advanced appears to constitute "a justifiable exception to the general prohibition", and that since each case depends upon its facts and circumstances, the court does not find it possible to give any greater guidance as to what is meant by "good reason" in the statute.
The problem for an accused person such as Mr. Waugh seems to us to lie not merely in the general purpose of the legislation: a provision designed to protect the public from persons who might use such articles to cause injury or to threaten others could at least arguably achieve its full purpose while treating proof that one did not know one had the object, and had no such intention, as a defence. But in section 49, Parliament appears to us to have adopted a means of achieving its purpose which casts the net very wide. By ignoring knowledge and intent in subsection (1), Parliament is not merely telling those who contemplate taking a knife or the like into a public place that they must refrain from doing so. It is telling everyone, including the careless and the casual and the thoughtless and the forgetful that they will be guilty of an offence under section 49(1), unless they can establish a defence under subsection (4) or (5). Such a provision is in our view not merely a "prohibition", to be obeyed, but is effectively designed to bring it home to the public in general that some care will have to be taken in the way they run their day to day lives, if they are to avoid committing the offence through casualness, carelessness and the like. In that context, it does not appear to us that "good reason" could be constituted in terms of subsection (4), in situations such as the present where there is no knowledge and intent, and where the reason for the presence of the knife is to be found in the background and circumstances, except in what we think would be rather unusual circumstances. An example of such unusual circumstances could be where the accused had at no time had any knowledge of the article, and his having it with him resulted from the acts of others or some very immediate circumstance. Given the terms of the general section (1), it is necessary to look at the background and circumstances with some care. If one owns a garment which one is likely, or even liable on occasion, to wear in a public place, then the pockets of that garment are not a suitable place to keep something like a knife. Whether or not one will be thinking of the knife when putting on the garment and going to a public place, section 49 appears to us to require that one simply should not have the knife in that garment, and that the fact of ordinarily keeping it in the garment cannot constitute a good reason for having it on the particular occasion in a public place, whatever one's state of mind or awareness at that later time.
In the present case, there is a finding to the effect that the accused was in the habit of invariably wearing the jacket on his fishing expeditions. But in Scotland, wet weather is not uncommon; and Mr. Waugh (upon whom the burden of proof lies in terms of subsection (4)) has not established whether, or how often, he would wear this jacket when he was not fishing, but simply required a waterproof jacket when going to a public place. If it was not his only waterproof jacket, or if this jacket was normally used on fishing trips only, he has not established why, on going briefly into his house on this occasion, he came to take this jacket rather than such jacket as he would usually wear in public places in the rain. While there is the finding that he had used the knife on a fishing expedition two days previously, and had then left the knife in the jacket, there is no finding to show whether this was his normal practice, so that he effectively kept the knife in the pocket of that jacket, or whether (perhaps because the jacket was indeed used on occasions other than fishing trips) leaving the knife in the pocket was abnormal or unique. The issue appears to us to turn less on Mr. Waugh's unawareness or "forgetfulness" on the evening in question than on his leaving the knife in the pocket of a jacket, without having established any picture of the occasions on which he was liable to wear that jacket, or of what he normally did with the knife after fishing trips.
In these circumstances, and having regard both to the nature and limits of the facts found and the structure of section 49, we are not persuaded that there was any basis upon which the sheriff could hold the defence afforded by subsection (4) to have been established. It is of course true that circumstances such as the present, while falling short of such a defence, are very different from circumstances in which a knife has been taken to a public place intentionally, as well as with no good reason, and the circumstances may have considerable mitigatory weight in relation to sentence. But that is another matter, and we answer the question in the case in the affirmative, and remit to the sheriff to proceed as accords.