R. v Sean Giles [2003] EWCA Crim 1287

Case No 200105586/Y3[2003] EWCA Crim 1287
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice
Strand
London, WC2
Date Thursday, 6th February 2003
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE SACHS
HIS HONOUR JUDGE FAWCUS
(Sitting as a Judge of the CACD)
Between
R E G I N ACrown-v-
Between
SEAN GILES
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS S HOBSON appeared for APPELLANTMR M HALSEY appeared for CROWN
J U D G M E N TDate 2003-02-06

LORD JUSTICE SCOTT BAKER:

[1]This appellant, Sean Giles, appeared before the Cambridge Crown Court on 11th September 2001. He faced an indictment containing three counts. The first count was wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861, the second count was unlawful wounding, contrary to section 20 of the same Act. Those two counts were alternative. The third count was possession of a bladed article, contrary to section 139 of the Criminal Justice Act 1988. He was acquitted of the two counts of wounding but convicted of the third count of having a bladed article in his possession, the judge having directed the jury to convict on the basis that no defence had been raised. He appeals by leave of the Single Judge.[2]The facts are as follows. At about 11.30 pm on the evening of 29th September 2000 a group of young people, including the complainant, Aaron Wright, his friend, Oliver Crane, Sabrina Balfe, Anna Harrington, Karen O'Donnell and Davina Creake met in the Market Place in Ely, where they sat on some benches outside the telephone kiosks. The appellant walked past the group and was asked by Karen O'Donnell for tobacco. He did not know anyone in the group but nevertheless he shared some tobacco with Miss O'Donnell and, whilst chatting, he showed her a handheld computer. At some stage this was taken by Davina Creake who decided she would hide it from the appellant as a joke.[3]Once the appellant realised that his computer was missing he took Miss O Donnell's purse and telephone that had been beside her on the bench where she was sitting and set-off in the direction of the kebab shop.[4]The group of young people followed the appellant in order to retrieve Miss O'Donnell's belongings and surrounded him in the alleyway opposite the kebab shop. He was seen to be holding a knife with a blade pointing outwards. He was heard to say:
"If you don't move away I'll stab you."
At some stage in the alleyway contact was made between the appellant and Aaron Wright before the appellant was able to get away from the group. He began to run in the direction of the police station and was chased by Aaron Wright and Oliver Crane.[5]As the appellant was running towards the police station, Aaron Wright caught up with him outside the Magistrates' Court. Wright later told the police that he was at this point punched in the stomach by the appellant. He thought that this may have been where he was stabbed with the appellant's knife. The appellant carried on running in the direction of the police station and was arrested when a mobile patrol, alerted to the incident, stopped him just past the police station. He had thrown the knife into a nearby garden from where it was recovered by the police.[6]The case for the appellant was that he had been out earlier that evening with his girlfriend but he had returned home. He had had one pint of lager. He said that, whilst at home, he had used the knife, which had been a birthday present, to scrape paint from a guitar which he was in the process of renovating. When he decided to call round to a friend's house he placed the knife back in its pouch on his belt. The knife was not visible as he was wearing his shirt outside his trousers. He said that he pulled the knife out in the alleyway to defend himself. He described the knife as a blade, a tin opener, a bottle opener and a saw and it had one other attachment he could not recall. He agreed that the knife was capable of causing really serious injury but said he was only waving it in front of the group. When he was asked why he had the knife in the street, he said:
"I didn't know it was illegal to carry it."
When asked why he did not leave the knife at home, he said:
"I just put it back in my belt."
He said he had not intended to use it as a weapon. He did not give any specific reason for having it on his person. He agreed that you had to open the blade deliberately and it then locked into position automatically.[7]There was expert evidence that the blade was eight centimetres long. That is of significance in that it was more than three inches and it had a pointed tip.[8]When he was interviewed by the police the appellant said that, upon realising that his computer was missing, he went in search of the person he believed was holding onto it. He had taken the purse and the telephone to ensure that his own property was returned. He felt threatened in the alleyway and believed that Aaron Wright had lunged towards him while he was holding the knife and that that was how the injury had occurred. He said he had not stabbed Aaron Wright outside the Magistrates' Court but that Aaron Wright had punched him on the head twice at that point and had run away.[9]In his summing-up, the learned judge directed the jury in relation to count 3. That was the knife count. The knife was a lock knife. Even if it was a penknife not a lock knife it would still be an illegal knife to carry because the blade exceeded three inches in length. That is unless the person carrying the knife shows that he had good reason or lawful authority for having the article with him in a public place. The jury was directed that the defendant must raise a good reason for having the knife with him in Ely that night. The burden of raising a good reason lay on him. He had to provide an explanation for his carrying of the knife, which the jury, on balance of probabilities accepted was a good reason for carrying it that night.[10]Then

the judge said this:

"Members of the jury in this case I have considered with counsel whether the defendant has given any explanation capable of amounting to good reason for having the knife with him. I must direct you that he has not. Habit is not a good reason. Forgetfulness is not a good reason. There is simply no evidence of any legitimate good reason for him carrying that knife. He gave no evidence of taking it with him for any purpose at all. Just, he said, his habit was to carry it. Since he has admitted carrying it that night and produced no good reason for doing so there is really only one possible verdict on count 3, is there not? While it remains for you to bring in the verdict, members of the jury, you may readily conclude that the only possible verdict is one of guilty on count 3."
So that was, for practical purposes, a direction to the jury to convict.[11]We turn to look at the relevant section. Section 139(1) of the Criminal

Justice Act 1988 provides:

"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 pocket knife. (3) This section applies to a folding pocket knife if the cutting edge of its blade exceeds three inches. (4) It shall be a defence for the 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."
Subsection (5) deems certain specific purposes, all of which are irrelevant to this case, to be a defence. The section, as can be seen, applies to any article that either has a blade or is sharply pointed, except a following pocket knife, where the cutting edge of the blade measures 3 inches or less. Possession of such a prohibited article in a public place requires the defendant to prove that he had good reason or lawful authority for having the article with him. The burden is on the defence, he has a legal burden to provide a good reason. A lock-knife is not a folding pocket knife because it is not immediately foldable at all times. A further process is required, the pressing of a button (see Deegan [1998] 2 Cr App R 121).[12]The appellant's case was that this was a Swiss Army knife which he had been using to renovate his guitar earlier in the evening. He put it in its pouch on his belt where apparently it ordinarily lived. He was wearing his shirt outside his trousers so it was not visible. It was a multi purpose utility tool, with five different tools attached to it. He did not realise it was illegal to carry and he had not intended to use it.[13]He did not dispute the fact and Miss Hobson, on his behalf, does not dispute the fact today that the knife was a prohibited article under the section. His case is and was that he had raised sufficient evidence of a good reason for the matter to be left to the jury. His good reason was this: it was a utility tool with a multitude of different uses in any number of different situations. He did not have to provide a specific good reason on that occasion for possession of a blade that came attached to other implements that could all be used in legitimate situations.[14]Miss Hobson says that the situation is really not different in principle from any woman carrying a manicure set inside her handbag, which will have in it a number of items such as, in particular, a pair of scissors, which will be prohibited under the section unless there is any good reason for having them.[15]It is pertinent to point out that the knife was prohibited for two reasons. First its blade was over three inches in length and second it could not (see Deegan) be described as a folding pocket knife.[16]As will now be plainly apparent, the issue in this case is solely about the defence under section 139(4), and whether the defendant had raised evidence of a good reason for having the knife with him.[17]If there is sufficient evidence of good reason to raise a prima facie case of good reason, the issue must be left to the jury (see Bonnick (1978) 66 Cr App R(S) 266). This is so even if the defence is not a strong one (see Manning [1998] Crim LR 198).[18]The appellant's argument is that where a bladed article forms part of an implement that has a number of legitimate every day uses, a defendant does not have to prove a specific reason for having the article with him in a public place on the occasion alleged in order to establish a good reason.[19]It seems to us, and Miss Hobson accepted this in argument, that logically her argument would extend to cover any implement prohibited under the section where it had something else attached to it. For example, there would always be a good reason for possessing a knife with a bottle opener attached because the bottle opener had a legitimate use. The bottle opener or other attachment might be required at any time and that was a sufficiently good reason for having the knife that was attached to and part of it in a public place. There is prima facie evidence of good reason simply in the fact that the bottle opener is attached. We cannot accept this submission. If correct it would destroy the purpose of the section. The high water mark, it seems to us, of Miss Hobson's argument, is reliance on something that McCowan LJ said in the case of DPP v Gregson (1993) 96 Cr App R 240. In that case the defendant was being questioned by police officers when a flick knife, with a four inch blade fell from his jeans. He offered no specific reason or excuse for having it with him. At his trial, he said he had habitually used it for cutting floor tiles at work. He said he left it in his jacket when he last used it, some six days before. He had forgotten that it was there. The justices found good reason. The Divisional Court, however, allowed the appeal. Having the knife for work 6 days earlier could not amount to a good reason for having it in his possession six days later. Further, forgetfulness, although an excuse, could not amount to a good reason.[20]One of the questions posed by the justices for the decision of the Divisional Court was: whether in order to establish a defence of good reason, within section 139(4), a defendant has to prove a specific reason for his having the article with him in a public place, on the occasion alleged.[21]McCowan LJ, with whom Popplewell J agreed, said it was unnecessary to answer this question for the purposes of the appeal that was before the court and that he would prefer to hear it much more fully argued. It is, we think, helpful to refer to the concluding paragraph of McCowan LJ's judgment:
"In my judgment, forgetfulness may be an explanation. It cannot be a good reason. I would therefore answer the second question, by saying that the fact that a defendant has forgotten that he has an article to which section 139 applies cannot constitute a defence of good reason within section 139(4) of the Act. I would therefore go on to answer question 3, that they did not make a correct determination and decision in law. As to question 1, which poses the question, whether in order to establish a defence of good reason a defendant has to prove a specific reason for having the article with him in a public place on the occasion alleged, I prefer to give no answer to that question. I would prefer to hear the point much more fully argued. It is unnecessary to answer it for the purposes of this appeal, which I would allow."
[22]There are, in our view, some helpful observations of the Court, in Deegan. Waller LJ said at page 124C, referring to extracts in debates on the Criminal

Justice Bill when it was being considered in the House of Lords:

"The extracts to which our attention has been drawn include extracts from the debates whilst the Criminal Justice Bill was being considered in Committee and when the Bill was being considered in the House of Lords itself. The background to section 139 appears to be clear. That is to say that having regard to the increase in robberies, including street robberies involving sharp instruments, and the carrying of knives, the Government became convinced there was a serious problem and that strong measures were needed to deal with the same. The Prevention of Crime Act 1953 makes it an offence to have an offensive weapon in a public place without reasonable excuse or other lawful authority. It breaks down offensive weapons into two categories: those articles which are offensive weapons per se and those articles which the possessor intends to use to cause injury. For offensive weapons per se the onus is upon the accused to prove on the balance of probabilities that he has lawful authority or reasonable excuse for having the weapon with him. For all other articles, including most knives, the onus is on the prosecution to prove beyond a reasonable doubt that the possessor intended to use it to cause injury. It was felt that the threshold of having to prove beyond a reasonable doubt that a knife carrier intended to cause injury was too high. Accordingly, a section was being drafted for the purpose of placing the onus on the person found in possession of a knife or bladed instrument to establish that he had a good reason for having the knife or bladed instrument with him in a public place. The section seems to have been drafted in different forms at different stages."
Then it is unnecessary to read further at that juncture but, at bottom of page 128, he continued:
"The final point to make will be said to be a slightly unfair one in the light of the difficulties in finding the time to put forward legislation. But the decision of the Divisional Court was in July 1992. There does not appear to have been any move to amend the legislation. That may demonstrate either that there is no great pressure to amend the legislation and not the perceived unfairness on the part of the carriers of pocket knives whose blades can be locked as above described. Alternatively, it may demonstrate that there are real difficulties in defining precisely that form of pocket knife with a locking device which should fall outside the section, and, that the better view is that albeit the present legislation will place an onus on some persons to provide a reason for carrying a knife which at first sight may seem unreasonable, that is an inconvenience which the few should suffer for the benefit of the community as a whole."
The decision of the Divisional Court in 1992, to which reference was being made was questions posed by McCowan LJ in the cases of Harris and Fehmi.[23]In our judgment, the fact that an article prohibited under section 139 may be part of something that has other features that are not prohibited, does not stop it from being a prohibited article. Indeed, that is not something that has not been disputed in this appeal. But nor, in our judgment, does it raise a blanket defence of good reason for having it in a public place, just because the possessor could, if he felt minded to do so, use the tin opener, the bottle opener or the screwdriver or any other aspect of the implement. If he simply had the article in his possession, without any particular need or intention to use it for a lawful purpose that is insufficient to found a good reason. To answer the specific question that was left unanswered by McCowan LJ in Gregson, we think the defendant does have to prove a specific reason for having the article with him in a public place on the occasion alleged.[24]The subsection, that is subsection (4), says that 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. In our judgment, the subsection is directing attention to the particular time in question when the defendant has the article in his possession. He has, in our view, to have a specific good reason for having it in his possession in a public place, at that moment. It is not enough simply that he might think of using the corkscrew or the bottle opener or some other attachment of the article in question.[25]In this instance, the appellant proffered no good reason for possession of the knife and it is of note that the circumstances of this case appear to us to be just the kind of situation that Parliament had under consideration when prohibiting the possession of knives in a public place. The appellant had it in his pocket. He found himself in a situation that was not to his liking and he brought the knife out.[26]It seems to us that there is considerable force in what Waller LJ said in Deegan. There may indeed be cases when many people, for example, the woman carrying a manicure set, find themselves within the opening provisions of section 139. But it should not be difficult for such a person to produce a good reason, if good reason they have. No doubt, if apprehended, any law-abiding member of the public would immediately explain the true purpose of having the instrument. In those circumstances, if it was a good reason, no criminal proceedings would, we anticipate, follow.[27]In the circumstances of this case, in our judgment, there plainly was no evidence of good reason, and the judge was right to withdraw the case from the jury. In these circumstances this appeal must be dismissed. What is the position in costs?[28]MISS HOBSON: There must have been some correspondence in relation to the submission, I have had no directions from the defendant, the appellant, and therefore I am not in a position to be able to relate his means to the Court.

LORD JUSTICE SCOTT BAKER: We have a note which reads as follows:

"The court is reminded at the conclusion of the case the court must consider whether it is reasonable to make a recovery of defence costs order, in all the circumstances of the case including the means of the defendant."
The means of this appellant are unknown. He was asked to lodge a statement of means on 12th February 2002. He was chased on 5th March and 24th April but has failed to do so. In the circumstances the Court is empowered to make a recovery of defence costs order for the full amount of costs for representation or may adjourn the case for further enquiries.[30]MISS HOBSON: My Lord yes, I do not know the address to which any correspondence has been sent but certainly it was my understanding that he was not aware until probably having been notified by my instructing solicitor that the case was before the court today and then the inevitable change to next Monday. I do not know whether the court have in fact been in correspondence with him. The situation is today I do not have instructions as to his means. If the court is considering making a defendant's cost order, could I make an application that the matter is adjourned in order to give him time to submit his means to the court.

LORD JUSTICE SCOTT BAKER: That is the defendant's cost order. What about the prosecution costs?

[32]MR HALSEY: I would apply for costs of the appeal, yes.

LORD JUSTICE SCOTT BAKER: Yes. (Pause).

[34]We simply do not know what your client's means are at the moment. We are minded to make some form of costs order. We do not think it would be right to make a prosecution costs order at this stage without knowing what his means are. In the end it is money going to the public purse one way or the other. So we will adjourn both matters for further enquiries. Thank you very much.