McAuley, R. v [2009] EWCA Crim 2130

[2009] EWCA Crim 2130

Case No 2008/6419/C4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 8 October 2009

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE KEENE

MR JUSTICE BLAIR

HIS HONOUR JUDGE ROGERS QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

MARCUS MCAULEY

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Mr B Hayhurst appeared for Appellant

Miss M Currie appeared for Crown

J U D G M E N T

LORD JUSTICE KEENE:

On

[1]24th October 2008 at Inner London Crown Court, before His Honour Judge Campbell, the appellant changed his plea to guilty of having an article with a blade or point contrary to section 139(1) of the Criminal Justice Act 1988. On 14th November 2008 he was sentenced by the same judge to 26 weeks' imprisonment suspended for 12 months with a supervision requirement of 12 months. He now appeals against both conviction and sentence by leave of the single judge.

[2]The change of plea to which we have referred came about because of a ruling by the judge and it is that ruling which forms the basis of the appeal against conviction.

[3]Section 139 makes it an offence to have an article with a blade or which is sharply pointed in a public place, subject to an exception which is immaterial for present purposes. But subsection (4) of that section provides a defence. It reads:

"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."

That is a defence which a defendant has to establish but the burden on him is to prove it simply on the balance of probabilities.

[4]The defence statement in the present case indicated that the appellant accepted that he was carrying a knife on the date in question, 7th May 2008, and that it was in a public place but that he would contend that he had a good reason for carrying it. The good reason was that he had been seriously attacked on 19th January 2008 in Soho by a particular man, by whom he had then been approached on 2nd May 2008 at Brixton Tube Station and by whom he had then been threatened. The defence case statement went on to say that the appellant understood this man to have been out on bail as at May 2008 and that "as a consequence following the incident on 2nd May 2008 Mr McAuley took the knife with him on 7th May as he was travelling through Brixton, an area he knew his assailant frequented, and was in fear of his assailant and that he might be attacked by him."

[5]The prosecution's witness statements indicated that it was in the South London area that the appellant had been stopped and searched by the police and the knife found. The record of interview showed that he had told the police that he was carrying the knife having been stabbed and threatened by a man. The man was on bail and the appellant had seen him on at least one occasion.

[6]The appellant was arraigned at the Crown Court on 24th October 2008 and initially he pleaded not guilty. But the judge drew counsel's attention to this court's decision in the case of Bown

[2003] EWCA Crim. 1989

[2004] 1 Cr.App.R 151

, where it was held that it is for the judge to decide whether as a matter of law the evidence is capable of amounting to the defence of having a "good reason" for having a bladed article in a public place. The court in Bown had drawn a distinction between whether the evidence is capable of being seen by the jury as a good reason and whether, if it is so capable, it in fact amounts to a good reason, the latter being a question for the jury to determine - see paragraph 16 of that case.

[7]In the present case the judge in effect invited submissions straightaway on the basis of the defence case statement without the calling of any evidence. Proceeding on the basis of the facts as set out in that defence statement, namely that the appellant had been seriously assaulted in January and then on 2nd May (five days before his arrest) had been threatened by the same assailant outside Brixton Tube Station (an area he knew the assailant frequented), the judge ruled that fear of attack in those circumstances could not amount to a "good reason" under section 139(4). He added:

"If this was a good reason, knife carrying could be carried out by virtually anybody in the Brixton area."

And so he indicated that the jury would be told, if it went to a jury, that this did not amount to a defence in law. In the light of that ruling the appellant changed his plea to one of guilty without any jury having been sworn.

[8]Mr Hayhurst on behalf of the appellant submits that the judge was wrong so to rule and that the defence of good reason should, after the calling of evidence, have been left to the jury. He refers to some authorities decided under the Prevention of Crime Act 1953, section 1, the offensive weapon provision, which is a section containing a statutory defence of "reasonable excuse". The defence of "good reason" under the 1988 Act has been held to be akin to that of "reasonable excuse" under the 1953 Act, despite some degree of academic criticism of such an approach - see Emmanuel [1998] Crim.L.R 347 where this court held that the judge should have left a defence of good reason under the 1988 Act to the jury where the defendant said that he had the knife for self-defence following an incident half an hour earlier. Again, in cases like Jolie

[2004] Cr.App.R 44

this court has seen no distinction between "good reason" in the one statute and "reasonable excuse" in the earlier one (paragraph 18).

[9]This leads Mr Hayhurst to submit that the decision in Evans v Hughes

(1972) 56 Cr.App.R 813

, a decision on section 1 of the 1953 Act, is nonetheless relevant in the present case. There the Divisional Court presided over by the then Lord Chief Justice held that it could be a reasonable excuse that the person with the offensive weapon was anticipating an imminent attack and so carried the weapon for his own defence. The court went on to add that the Act was not intended to sanction the permanent or constant carrying of a weapon merely because of some constant or enduring supposed or actual threat or danger to the carrier. The threat must be, it was said, an imminent particular threat.

[10]It is now contended on behalf of the appellant that the judge here ought to have allowed the jury to determine whether there was in the circumstances of this case such a threat and consequently a good reason. Mr Hayhurst emphasises that, although the original attack had been back in January, that attack had been a serious one and the threat of a further attack by the same man had been made only five days before the appellant had been found with the knife. He refers to and relies on also the House of Lords' decision in Wang

[2005] UKHL 9

[11]For the Crown, Miss Currie submits that the judge was entitled to rule out the possibility of a defence of "good reason". She contends that there was no good reason here and she draws our attention to a number of other authorities which have held, following Evans v Hughes, that a mere concern about being in a violent neighbourhood does not amount to a good reason for carrying a knife or a reasonable excuse for carrying an offensive weapon. She also suggests that if the defence had not liked the judge's ruling they should have pressed to call evidence before a further ruling was given by the judge.

[12]It seems to this court that, from the authorities already referred to, it could amount to a "good reason" under section 139(4) if the appellant was carrying the knife for his own protection and that he could show on the balance of probabilities that he was in fear of an imminent attack. The judge's ruling here amounts to saying that the facts as he understood them to be could not as a matter of law amount to a fear of an imminent attack.

[13]That may be, at first sight, an understandable conclusion but we bear in mind what was also said in Bown at paragraph 18, namely that a court should be slow to rule that the evidence is, as a matter of law, incapable of amounting to the defence under section 139(4). The words "good reason" are both very general words and very ordinary ones, being words which Parliament must have intended would normally be applied and interpreted by a jury or other fact-finding tribunal such as Justices. The reference in Evans v Hughes to "imminent attack" does not write those words into the statute and it remains for a jury to determine how imminent, how soon, how likely and how serious the anticipated attack has to be to constitute a good reason for possession of the bladed article. It may be that a threat five days beforehand from an earlier assailant would be held by a jury not to suffice, but we do observe that in the Evans v Hughes case the Divisional Court was not prepared to interfere with the Magistrates' decision that there was a reasonable excuse where the defendant had been attacked seven or eight days earlier and remained in fear. The Divisional Court did indeed say that this was a "borderline" case, but it did indicate by its decision that it was open to the Magistrates to find that it was a reasonable excuse.

[14]In those circumstances it seems to us that it could have been properly open to a jury, properly directed, had the facts proved to be what the judge assumed them to be, to decide that "good reason" under section 139(4) had been shown. We conclude therefore that it was wrong in this case for the judge to rule as he did and thus to deprive the appellant of the possibility of establishing such a defence, even though we accept that the evidence in favour of the defence may have been thin.

[15]In any event, we would also add that it would normally be wise in such cases for a judge not to rule before hearing the evidence, because that evidence may turn out to be to some extent different from and certainly more detailed than that suggested in the documents. The evidence may turn out to be more in a defendant's favour or possibly in the prosecution's favour, but it will usually be better to hear the evidence and then to rule (if appropriate) whether the evidence is capable at law of being held by a jury to amount to a "good reason".

[16]In the circumstances we have set out it follows that the judge's ruling here in our view was wrong and that the appellant is entitled to have his conviction quashed as being unsafe. It follows that this appeal is allowed.

[17]Is there any application by the Crown?

[18]MISS CURRIE: We would be asking for a retrial, my Lord.

LORD JUSTICE KEENE: Do you want to say any more about why that is appropriate in this case?

[20]MISS CURRIE: Because knife carrying is considered to be very serious and because of the very large increase in knife carrying it is in the public interest that all these matters be tried and determined in a court of law.

LORD JUSTICE KEENE: He got a suspended sentence, did he not, with a supervision requirement of 12 months?

[22]MISS CURRIE: Yes.

LORD JUSTICE KEENE: The supervision requirement of course has already effectively taken place, has it not, because this was November last year when it was imposed?

[24]MISS CURRIE: Yes.

LORD JUSTICE KEENE: Of course the more serious element in the sentence was the suspended prison sentence.

[26]MISS CURRIE: Yes.

LORD JUSTICE KEENE: What do you want to say about a retrial, Mr Hayhurst?

[28]MR HAYHURST: Only on the more serious element, the suspended sentence, again that was for six months for 12 months which again would expire in November so we are nearing the end of that as well. Bearing in mind the age of this matter, going back to May of last year and in essence the amount of time that it has taken for this matter to be listed at this court, I would say that--

LORD JUSTICE KEENE: You mean that virtually eleven months have now passed?

[30]MR HAYHURST: Yes.

LORD JUSTICE KEENE: Do you want to say anything further about that, Miss Currie?

[32]MISS CURRIE: It is regrettable that it has not been dealt with earlier, I suppose, than this. It means it has dragged on for a considerable period of time.

LORD JUSTICE KEENE: That may be, but we have to deal with the situation as it is and not as perhaps one would ideally like it to be.

[34]MISS CURRIE: That is right, my Lord. But in fact it will not be listed very early either because if it goes back to Inner London they are listing now for next July.

LORD JUSTICE KEENE: Thank you very much. (Pause) No, Miss Currie, I am afraid we do not think it is appropriate that there should be a retrial in this case, bearing in mind that the appellant has in effect served 11 out of the 12 months period, both in relation to supervision and the suspension of the sentence. So there will not be a retrial here.