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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> McAuley v. Procurator Fiscal [2003] ScotHC 48 (27 March 2003)
URL: http://www.bailii.org/scot/cases/ScotHC/2003/48.html
Cite as: [2003] SCCR 326, [2003] GWD 16-506, [2003] ScotHC 48, [2003] SLT 736
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McAuley v. Procurator Fiscal [2003] ScotHC 48 (27 March 2003)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Macfadyen Lord Carloway Sir Gerald Gordon, Q.C.
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Appeal No: OPINION OF THE COURT delivered by LORD MACFADYEN in APPEAL AGAINST CONVICTION by KRISTOFFER JAMES McAULEY Appellant; against PROCURATOR FISCAL, Edinburgh Respondent: _______ |
Appellant: Shead; Adam Bevan & Co.
Respondent:
R. Anthony, Q.C., A.D.; Crown Agent27 March 2003
[1] The appellant stood trial in Edinburgh Sheriff Court on a summary complaint at the instance of the respondent which contained two charges, the second of which was in the following terms:
"on 12 August 2000 you ... did have with you in a public place, namely within West End Police Station, Edinburgh, an article to which Section 49 of the aftermentioned Act applies, namely a lock knife;
CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995 Section 49(1)."
At the close of the prosecution case, a submission was made on the appellant's behalf that he had no case to answer in respect of that charge. That submission was repelled, no defence evidence was led, and the appellant was convicted as libelled.
[2] The appellant has appealed by Stated Case against his conviction in respect of charge 2, and the questions which the Sheriff has posed for the opinion of this court are:
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"1. |
In light of the evidence led for the Crown was I entitled to reject the submission of no case to answer? |
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2. |
On the facts stated was I entitled to convict the appellant?" |
[3] The Sheriff has found that when he was arrested on the date libelled and taken to the West End Police Station the appellant was found to be in possession of a knife. For the purpose of the appeal the critical findings are in the following terms:
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"9. |
The knife had a blade that was about two inches long and in any event did not exceed three inches in length. |
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10. |
The knife was a lock knife. |
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11. |
Both Constables stated that the knife was a lock knife, that is a knife with a locking mechanism which, in working order, would keep the blade in place when extended. |
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12. |
The locking mechanism of the knife did not function. When the blade was extended it did not lock into position. |
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13. |
The knife was not a folding pocket knife. |
[4] The relevant provisions of section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 ("the 1995 Act") are in the following terms:
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"(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 ... |
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(2) |
Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed. |
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(3) |
This section does not apply to a folding pocketknife if the cutting edge of its blade does not exceed three inches (7.62 centimetres)." |
[5] It was not disputed that the appellant had in his possession in a public place an article which had a blade. The only issue was whether, on the evidence and on a sound construction of the statutory provisions which we have quoted, the knife fell within the scope of subsection (3). One of the requirements of that subsection was clearly satisfied, in that the blade of the knife (and thus the cutting edge thereof) was less than three inches in length. The position adopted by Mr Shead on the appellant's behalf was that the Sheriff erred in holding that the knife was a lock knife and therefore not a folding pocket knife. It was accepted that a knife could not ordinarily be a folding pocketknife if it was a lock knife (Stewart v Friel 1995 SCCR 492). It was submitted, however, that the presence of a locking mechanism which was inoperable did not prevent a knife from being a folding pocketknife. The Advocate depute, on the other hand, submitted that in the circumstances the Sheriff was entitled to make finding 13. A knife equipped with a locking device was thereby prevented from being a folding pocketknife, even if the mechanism was not in working order and could not lock the blade in the extended position.
[6] As was noted in Stewart v Friel at 494F, the expression "folding pocketknife" is not defined in the legislation. The ordinary meaning of "pocketknife" is given in the Oxford English Dictionary as being "a knife with one or more blades which fold into the handle, for carrying in the pocket". The effect of Stewart v Friel, which was concerned with a knife which, when opened, locked automatically in the open position, was to narrow down the ordinary meaning of "folding pocketknife" for the purpose of section 1(3) of the Carrying of Knives etc. (Scotland) Act 1993 (now re-enacted as section 49(3) of the 1995 Act) so as to exclude one which had such an automatic locking mechanism. The reasoning which led the court to that conclusion is to be found in the opinion of the court delivered by the Lord Justice General, Lord Hope, at 495D:
"In our opinion a knife which has a blade which can be fixed in the open position by a locking device is not a folding pocketknife within the meaning of section 1(3) of the 1993 Act. The exception which is described in that subsection is contained in the two words 'folding pocketknife'. It is not enough that the knife can be placed in the pocket, or that the blade can be folded to enable it to be placed there. It must be a folding pocketknife. It cannot be described as a knife of that kind if it has a device which is designed, until it has been overcome, to prevent the blade from being folded. That device provides the knife with an additional feature which is not mentioned in the subsection. The description which it would be natural to give to a knife of that kind is that it is a lock knife or a locking knife, to distinguish it from a knife whose blade is always and immediately foldable."
[7] In our view, further assistance in interpreting section 49(3) may be obtained from an observation made by McCowan LJ in Harris v DPP [1993] 1 WLR 82 at 87E-F, which was quoted with approval by the Lord Justice General in Stewart v Friel. That case was concerned with the provisions of section 139 of the Criminal Justice Act 1988 which were to substantially the same effect as section 49. What McCowan LJ said was this:
"In my judgment, the right approach to the matter is this. To be a folding pocketknife the knife has to be readily and indeed immediately foldable at all times, simply by the folding process. A knife of the type with which these appeals are concerned is not in this category because, in the first place, there is a stage, namely when it has been opened, when it is not immediately foldable simply by the folding process and, secondly, it requires that further process, namely, the pressing of the button."
[8] Neither of these cases was concerned with the factual situation which arises for consideration in the present case, namely that the knife was fitted with a locking mechanism, but that that locking mechanism was not in working order, and did not in fact cause the blade, when opened, to lock in that position. In our opinion, on a sound view of the authorities, it is the presence of a device or mechanism which has the actual effect of locking the blade of the knife in the open position that prevents a knife from being a folding pocketknife. Although Lord Justice General Hope in Stewart v Friel at 495D referred to "a device which is designed, until it has been overcome, to prevent the blade from being folded", that was said in the context of a case dealing with a working locking mechanism, and it is in our opinion clear that the Lord Justice General did not intend to say that what mattered was what the device was designed to achieve, irrespective of whether it actually achieved it. It is in our view clear from the opening sentence of the passage quoted in paragraph [6] above that it is the fact that a knife "has a blade which can be fixed in the open position by a locking device" that takes it out of the category of "folding pocketknife". Using the language adopted by McCowan LJ in Harris v DPP, the knife in the present case, because its locking mechanism does not work, is a knife which is "readily and ... immediately foldable at all times, simply by the folding process". Another way of expressing our conclusion is that while a lock knife in working order is not a folding pocketknife, a broken lock knife, the locking mechanism of which is inoperative, is a folding pocketknife, since it is immediately foldable and can be carried in a pocket.
[9] The result, in our opinion, is that on the evidence which was before him and on a sound view of the law, the Sheriff should have concluded that the knife was a folding pocketknife with a blade the cutting edge of which was less than three inches in length, and therefore was not an article to which section 49 applied. It follows in our opinion that both questions in the Stated Case fall to be answered in the negative. The appeal is therefore allowed and the conviction in respect of charge 2 is quashed.