Bown, R v [2003] EWCA Crim 1989

Case No 200202772/W3[2003] EWCA Crim 1989
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 23rd June 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE KEENE
MR JUSTICE SIMON
SIR RICHARD TUCKER
Between
R E G I N ACrown-v-
Between
MARK BOWN
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)
MR J PORTER appeared for APPELLANTMISS C BRANFORD-WOOD [SOLICITOR ADVOCATE]appeared for CROWN
J U D G M E N T23rd June 2003

LORD JUSTICE KEENE:

On

[1]18th April 2002 in the Crown Court at Bournemouth before Mr Recorder Wilson-Smith QC this appellant was convicted on the judge's direction of a single count of being in possession of a article with a blade or point contrary to section 139(1) of the Criminal Justice Act 1988. On 7th May of the same year he was conditionally discharged for a period of 12 months. He now appeals against conviction by leave of the single judge.[2]The issue which arises is a relatively narrow one concerning the defence of good reason arising under section 139(4) of the Criminal Justice Act 1988. That subsection reads as follows:
"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."
[3]Subsection (5) then goes on to say:
"Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with the offence under this section to prove that he had the article with him -- (a) for use at work; (b) for religious reasons; or (c) as part of any national costume."
[4]The facts in the present case can be dealt with relatively briefly. On 19th September 2001 at 6.20 in the evening the appellant was stopped and searched by a police officer in Saxton Square, Christchurch. He was found to have a folded lock knife in his trouser pocket. He stated in interview that he was depressed and that he had the knife with him in order to self-harm. There was apparently no dispute that he had a history of self-harm and joint admissions were before the court to this effect. During the interview the appellant accepted that the knife was found on him in a public place and was a prohibited knife for the purposes of the Act. He also accepted that he had no lawful authority for carrying it.[5]At trial it was the defence case that the appellant had a propensity to self-harm on a regular basis and that the carrying of the knife for this purpose constituted "a good reason" within the meaning of section 139(4). The Crown contended to the contrary, namely, that it did not amount to such a good reason.[6]There was a psychiatric report before the court referring to the appellant's medical records as showing his history of self-harm and depression.[7]The defence submitted that whether something amounted to a good reason was a question for determination by the jury, requiring no intervention or interpretation from the judge. The Crown accepted that to be the position.[8]The appellant did not give evidence at trial, nor were there any defence witnesses called. A number of authorities were cited to the Recorder in argument. He, however, took a different view from counsel as to the approach to be adopted. He ultimately ruled that the court had a duty to determine whether the reason advanced for the carrying of the knife was capable in law of amounting to a good reason within section 139(4). He emphasised that a reason was something distinct from a good reason. Cutting oneself with a knife was so remote from the carrying of a knife in a public place as to be incapable in law of amounting to a good reason. Further, a jury properly directed could not reasonably come to the conclusion that the explanation advanced by the defendant could in law amount to a good reason. Having so ruled, the Recorder withdrew the defence from the jury's consideration and directed the jury to return a guilty verdict. The Recorder also indicated that he had grave doubts as to whether the defence had in any event placed before the jury evidence upon which it could properly find that the defendant had discharged the burden upon him on the balance of probabilities.[9]On behalf of the appellant Mr Porter argues that the judge was wrong to proceed on the basis that it was for him to decide whether the reason put forward was capable in law of being a good reason. Reference is made in the skeleton argument to the familiar case of Brutus v Cozens [1973] AC 854 as authority for the proposition that it is for the tribunal of fact to determine whether the words of a statute, when those are ordinary words of the English language, do or do not cover the facts of the case. That approach has been applied in a case concerning section 139, R v Manning [1998] Crim LR 198, a decision of this Court.[10]Mr Porter goes so far as to say that any reason ought to go to the jury, whatever it is. Further, he submits that self-harm is a non-criminal activity and that in those circumstances it was certainly capable of amounting in law to a good reason within the meaning of the section. He accepts that there is nothing in the record of the interview to indicate when the appellant might be self-harming, but he submits that it is clear that he did so on a daily basis. In any event, it is said it is enough that someone may require the knife at some time in the future. It should, in those circumstances, be left to the jury to determine because it is a matter of degree whether or not in the particular instance the facts establish that a good reason has been shown.[11]For the Crown Miss Branford-Wood also submits the judge was wrong to decide that it was for him to determine whether the reason put forward was capable of amounting to a good reason. It is, she contends, a matter of fact for the jury and reference is made to Bryan v Mott 62 Cr App R 71, as well as to the authorities cited by the appellant. But here, she submits, there simply was not the evidence called before the jury which was capable of establishing that in reality a good reason had been made out.[12]In our judgment, it is important to distinguish between deciding whether a reason is indeed a good reason under section 139(4), which is a matter for the jury, and whether the reason is capable of being such a good reason.[13]As the Recorder in the present case pointed out during argument, no one would suggest that having a knife in a public place in order to commit a criminal offence could be a good reason and any jury which were to conclude otherwise would be regarded as arriving at a perverse decision. Normally, forgetting that you have the knife on you will by itself not be capable of amounting to a good reason, because as was said in DPP v Gregson [1976] Cr App R 240 at 243 by McCowan LJ:
"... forgetfulness may be an explanation, it cannot be a good reason."
[14]That passage was cited with approval in Manning, where the Court said at page 3 of the transcript:
"When you are found in a public place with a prohibited knife on your person, it is no defence to just say 'I forgot I had it'."
[15]In our judgment, while such words as "I forgot that I had it" may be an explanation for the presence of the knife, they do not amount to a reason for having it, far less a good reason. Something more would be required.[16]This all demonstrates that there are some limits as a matter of law as to what can amount to a good reason under section 139(4). It is for the judge to determine as a matter of law whether the explanation is capable of being seen by a jury as a good reason. If it is, then it is indeed for the jury to decide whether in fact in all the circumstances of the case it did amount to a good reason.[17]That this is the proper approach is exemplified by one of the decisions which has been cited to us, Bryan v Mott, which was, of course, an offensive weapons case under the Prevention of Crime Act 1953. There the Divisional Court did indeed say that the issue of whether the accused had "a reasonable excuse" for having the offensive weapon with him in a public place was an issue for the tribunal of fact, but the Court nonetheless in its decision held that no reasonable tribunal could have concluded that the excuse proffered was a reasonable one. In other words, the Court in practice did determine whether or not the excuse was capable in law of being a reasonable one. As a matter of approach, therefore, to his role as compared to the jury's role, the Recorder in the present case in our judgment did not err. However, we would add two further points.[18]First, where ordinary English words are used in a statute, such as this one, without anything to indicate any special meaning attaching to them, a judge should be slow to rule that the particular facts cannot as a matter of law fall within the scope of a "good reason". The words are very general in nature with no further definition and just as it is not for the judge to put his own gloss on them for the jury (see the decision in Manning at page 4 of the transcript), likewise he should be reluctant to impose his own view of those words by ruling them incapable of encompassing the explanation put forward by the defendant except in a clear cut case. It is important that a section 139(4) defence is withdrawn from a jury only in the clearest of cases.[19]Secondly, we would draw attention to the fact that under the wording of the subsection the good reason has to be one not merely for having the bladed article with him, but also for having it with him in a public place, and, by implication, at the time at which he had it on him. The direction to the jury should remind them of that element in the defence which has to be established by evidence, but it is also relevant to the present issue.[20]Applying these principles to the present case, the issue is whether the Recorder was right to rule that the defence as put forward in this case of self-harm was incapable of amounting to good reason within the meaning of the subsection. We are aware that in Bryan v Mott the Divisional Court regarded having a broken milk bottle in a public place so as to have it available to commit suicide was incapable of amounting to a reasonable excuse within the meaning of that Act. That, of course, related to a different statute and does not directly help on the present issue.[21]More helpful, perhaps, is the Administrative Court decision of 27th February 2002 in Mohammed v Chief Constable of South Yorkshire Police [2002] EWHC 406 Admin, [2002] All ER Digest 374 February, which is a decision about section 139 of the 1988 Act.[22]The defendant in that case had been driving a van, which when stopped was found by the police to contain a meat cleaver under the driver's seat. At trial the defendant contended that he had taken the cleaver from his father's takeaway business on Saturday evening intending it be to sharpened on Monday. The justices determined that he did not have a good reason to have the meat cleaver in a public place and accordingly convicted him. In particular they relied on the fact that he was due to attend work on Sunday at which time he could have taken the cleaver.[23]The appeal was dismissed by the Administrative Court. Stanley Burnton J ruled that, whilst the reason that the appellant had the cleaver in his vehicle was capable of being a lawful reason, on the facts of the instant case he had removed the item over 36 hours before he intended to have it sharpened. He could have removed it on Sunday evening, which would have been the safe and proper course. Due to the length of time the cleaver had remained in the car the Justices had been entitled to find that the item was not in his possession for a good reason.[24]That decision emphasises that it is often going to be highly relevant to the issue of whether a good reason has been established to see whether or not there is evidence as to when and where the defendant intended to use the knife, or other article, for the stated purpose. It will often not be sufficient simply to state a purpose with no time or place attaching to it.[25]In the present case we do not find it necessary to decide whether or not in some abstract way self-harm can, or cannot, in law amount to a good reason. The answer to that question may depend on the sort of detailed facts of the kind to which we have just referred. But here the interview of the appellant, even if regarded as evidence, did not condescend to such detail about when and where the appellant intended using the knife. It is suggested on his behalf that he self-harmed daily. But even assuming that in his favour, it cannot, for example, be a good reason in our judgment to have a knife with you in public one evening because you may want to self-harm at some time the next day. That is simply too detached a set of facts and too detached a link to come within the wording of the statute.[26]Here the crucial factor is the absence of evidence from the appellant. In the absence of that evidence it could not be determined by any jury when and where he was intending to use the knife to self-harm. It was, therefore, going to be impossible for the appellant to establish the defence because the evidence did not go sufficiently far. The burden rests on the defence to establish that there is a good reason within section 139(4) and here it patently failed to discharge that. There was simply insufficient evidence to establish the defence to the degree of particularity which was requisite. In our judgment the Recorder was right to withdraw the issue from the jury, although for the subsidiary rather than the principal reason which led him to that conclusion, and in these unusual circumstances he was right to direct a conviction.[27]It follows that in our judgment this appeal must fail. It will, therefore, be dismissed.

Cited in 6 later judgments