Clancy, R. v [2012] EWCA Crim 8

[2012] EWCA Crim 8Case No 2011/3311/B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-THAMES
Mr. Recorder West
T20100561
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 January 2012
Before
LORD JUSTICE MOORE-BICKMR JUSTICE IRWINSIR CHRISTOPHER HOLLAND
Between
THE QUEENRespondentLOUISE CLANCYAppellant
Miss Rebecca Lee (instructed by the Registrar of Criminal Appeals) for appellantMr. Jonathan Turner (instructed by the Crown Prosecution Service) for respondentHearing Hearing date : 1 st November 2011
Judgment
[1]On 19th May 2011 in the Crown Court at Kingston-upon-Thames before Mr. Recorder West the appellant was convicted on two counts of possessing a bladed articlecontrary to section 139(1) of the Criminal Justice Act 1988 (“the 1988 Act”). On 6th July 2011 she was sentenced by the Recorder to a Community Order for 12 months with a requirement of 80 hours unpaid work coupled with a condition not to attend or contact Standard Mini Cabs in High Street, Colliers Wood. She was also ordered to pay £750 towards the prosecution costs.[2]The events giving rise to the conviction occurred in the early hours of the morning of 27th March 2010. At 1.00 a.m. the police were called to Merton High Street following reports of a dispute between a cab driver and a woman. The driver, an Asian man aged about 40, said that he had agreed to take the appellant as a passenger and had driven to the Tesco garage on Merton High Street to turn his car round. He said the passenger had become abusive and had started swearing at him, so he had stopped his vehicle and asked her to get out. She refused and continued to be abusive, so he drove them both back to the cab office where he left his vehicle unlocked and telephoned the police. As the police were talking to the driver the appellant began shouting and swearing. She appeared to be drunk and at one point lunged at the cab driver. She claimed that she had been locked in the car. After warning the appellant about her behaviour the police left.[3]A short while later the police were called to the appellant’s home address. Her partner had telephoned them to say that she had returned home distressed saying that she had been sexually assaulted by a cab driver. She had taken a knife from the kitchen and was attempting to leave the house to find him. One of the officers who attended, PC Fenly, saw the appellant walking in the direction of the cab office and went to speak to her. She told him to “Fuck off” and said she did not want to speak to him. He said that he was aware that she had a knife in her bag and she replied “They are in my handbag. They are not for you, they are for the cab driver.” He asked for her handbag, which she handed to him, and in it he found two kitchen knives. Eventually she told the officer that the driver of the cab in which she had been a passenger earlier that evening cab had stopped in a side street and had twice put his hand down the front of her trousers. The officers recorded the allegation of sexual assault and then arrested the appellant for possessing an offensive weapon. In interview on 27th March 2010 she handed in a prepared statement and answered no further questions.[4]Two days later the appellant made a statement in which she said that she remembered everything that had happened that evening. On her return home she had suddenly felt enraged at what had been done to her, had grabbed two knives and had run out of the house. She said that she had had no specific intentions at the time.[5]The appellant is a staff nurse at St. George’s Hospital, Tooting. In her evidence at trial she said that on the evening of 26th March 2010 she had met her partner for a drink and had then gone to another public house with a friend. She had had several drinks and shortly before midnight decided to go home. She said that she went to her usual cab station to obtain a taxi. She walked with the driver to his taxi and got into the rear seat. The driver was not one she recognised. She was a bit confused and gave him her address for a second time when he seemed to be going the wrong way. He then turned into Tesco’s as if to turn his car and on leaving and drove up a side street in the wrong direction. He pulled the car over and turned off the engine. She said that after sitting motionless for a minute or so he turned to face her and began pulling the zip on her jacket. She screamed, but he ignored her and put his hands down the front of her jeans. She struggled with him for a minute or so and he eventually stopped what he was doing. He started the car again and headed back towards the cab station. In the meantime she had made several calls to the police, one of which she made after they had got back to the station. When the police arrived she tried to tell the officers what had happened, but they would not listen to her. She said that after she got home she wanted some cigarettes and put a knife into her bag for protection when she left the house to get some because she was afraid of being attacked by the taxi driver.[6]In due course the appellant was charged with two offences of having a bladed article in a public place contrary to section 139(1) of the Criminal Justice Act 1988. By virtue of subsection (4) of that section it is a defence for the accused to show on the balance of probabilities that he or she had a good reason for being in possession of the article in question. The appellant argued that she had a good reason for having the knives in her possession because she thought she would be attacked by the taxi driver and feared for her personal safety.[7]When he came to deal with the appellant’s defence, and in particular the meaning of the expression “good reason”, the Recorder directed the jury that it was a question of fact for them to decide using their common sense and experience of the world. However, he suggested that they might not think that it was a good reason to carry a knife simply to ward off an attack from some unknown person, or even some known person, at some unknown time in the future, as members of a gang might. He therefore invited them to consider whether there was a risk of an attack at all and if so, how imminent that risk was and how serious any likely attack.[8]In the course of their deliberations the jury sent the Recorder a note asking the following question:
“When we consider whether the defendant had good reason to have the knives and we reflect on whether she feared an attack should we consider (A) or (B) - (A) whether in assessing the facts available to the defendant at the time she was actually likely to be attacked or (B) whether in a confused and possibly irrational state she might have believed she might be attacked even if that was logically unlikely?”
[9]After receiving submissions from counsel the Recorder gave the jury a further direction in the following terms:
“You should consider all the facts alleged [by] the prosecution and the defence that are alleged to amount to good reason for having the knife in a public place. You should decide which of those have been proved to the standard I directed you about yesterday that is that the fact has been proved by the defendant as being more likely. When you have identified those facts that you find proved, if any, you need to consider whether they amount to a good reason, this is a matter you need to consider objectively, that is, would an outside, independent observer consider that those facts amounted to a good reason for possession of the knife in a public place. You should not approach that question subjectively by taking the defendant’s state of mind, whatever you may think it was. The reason why the law does not permit that is perhaps obvious, for example, say a person allowed himself to get drunk and in that state formed some distorted view of a situation and behaviour in response to that imaginary situation he could not say afterwards “I believed I had a good reason for doing what I did although I accept that there was in fact no good reason for doing so and I would not have done what I did if I had been sober”
. The same applies if the distorted view was the result of some other cause such as a traumatic event. If the facts you find proved do not amount to a good reason looked at from the outside then the defendant will not have established a defence. In summary the question is has the defendant established that she in fact had good reason for carrying the knife, that is the issue for you to decide – whether she had an angry and/or intoxicated and/or traumatised state of mind cannot amount to or contribute to having good reason. However her state of mind at various stages may well be relevant to her credibility and the reliability of her evidence as to the facts that she alleges.”[10]The grounds of appeal are that the Recorder was wrong to direct the jury that they should consider the question whether the appellant had good reason to have the knives in her possession wholly objectively, not taking into account her state of mind and her fear (if they accepted her evidence) of an attack by the taxi driver.[11]Section 1 of the Prevention of Crime Act 1953 (“the 1953 Act”) makes it an offence for a person to be in possession of an offensive weapon in a public place without lawful authority or reasonable excuse. The meaning of the expressions “reasonable excuse” in the 1953 Act and “good reason” in section 139(4) of the 1988 Act have been considered on a number of occasions. In Evans v Hughes (1972) 56 Cr. App. R. 813, a decision on the 1953 Act, the Divisional Court held that it could be a reasonable excuse that the accused was expecting an imminent attack and was carrying the weapon for his own defence. However, the court made it clear that the Act was not intended to permit the carrying of weapons simply to guard against a general threat of violence. In the view of the court only an imminent particular threat would provide a reasonable excuse. The court did not expressly consider whether the accused’s perception of the likelihood of an attack was a relevant matter, but the tenor of the judgment suggests that it was.[12]DPP v Gregson (1992) 96 Cr. App. Rep. 240 was a case under the 1988 Act. The respondent, who was found in possession of a knife, said that he habitually used it at work for cutting cork floor tiles, had left it in his jacket when he last used it six days earlier and had forgotten that it was there. The justices accepted that the appellant did use the knife in his work and might well have put it into his pocket six days earlier. However, McCowan L.J. giving the judgment of the Divisional Court held that forgetfulness might be an explanation for having the knife in his possession six days later, but could not be a good reason for doing so. As the court observed in the subsequent case of R vManning [1998] Crim. L.R. 198, it has to be understood in the context of the facts of the case.[13]In Manning the appellant was found in possession of a knife which he said he had used to repair his car radiator earlier that day. He argued that he had it for use at work within the meaning of section 139(5)(a) or for a good reason within the meaning of section 139(4) and so a question arose as to the meaning of those two expressions. Henry L.J. giving the judgment of the court observed that where a statute uses ordinary everyday language judges should not put their own gloss on it but leave it to the jury to make their own decision, citing as authority the decision of the House of Lords in Brutus v Cozens [1973] AC 854. He held that since the expressions were not used in any unusual sense, the judge was entitled to leave the matter to the jury and tell them that it was for them to decide what they meant in the context of the case.[14]Manning and Gregson were both considered in R v Jolie [2003] EWCA Crim 1543, [2004] 1 Cr. App. R. 3, another case under the 1988 Act. The appellant was found in possession of a kitchen knife which was hidden under the driver’s seat of his car. He said that he had not known it was there. There were no keys to the car and he and others had been using the knife to start the car, but had later mislaid it. The court held that if the knife had been brought into the car simply to start and stop the engine, it ought to be open to the jury to find that the statutory defence was made out. The court noted what had been said in Brutus v Cozens and cast doubt on the reasoning in Gregson which had led the court in that case to the conclusion that forgetfulness could not amount to a good reason. Having referred to Manning, it held that that case was authorityfor the proposition that the words "good reason" did not require any judicial gloss. Kennedy L.J. said in paragraph 17:
“Once the facts are known the tribunal of fact can safely be left to decide for itself whether the statutory defence, which is formulated in simple words, has been made out.”
[15]Although the expressions used in the 1953 and 1988 Acts are not the same, they were regarded in Jolie and other cases as being the same for all practical purposes. It is not surprising, therefore, that in R v McAuley [2009] EWCA Crim 2130, [2010] 1 Cr. App. R. 11, another case under the 1988 Act, the court should have referred to Evans v Hughes as authority for the proposition that if a person can show that at the time he had a knife with him he was in fear of imminent attack, that could amount to a good reason. The appellant had been found in possession of a knife and said that he was carrying it to protect himself from attack by a man who had attacked some four months earlier and had approached and threatened him again only five days earlier. The trial judge had ruled that a fear of attack in those circumstances could not amount to good reason. The court allowed the appeal against conviction on the grounds that the defence should have been left to the jury. The court repeated what it had said in R vBown [2003] EWCA Crim. 1989, [2004] 1 Cr. App. R. 151, namely, that judges should be slow to rule that the evidence is, as a matter of law, incapable of establishing a defence under section 139(4).[16]In N v DPP [2011] EWHC 1807 (Admin) the appellant had been found in possession of a metal bar and was charged with an offence under section 1 of the 1953 Act. He had been threatened five minutes earlier by a group of young men in a car and had run off when they had started to get out. No weapons had been shown by the men in the car, but the appellant had picked up the metal bar for protection in case they found him and he was attacked. The District Judge took the view that the defence of reasonable excuse was not made out because, even if the appellant did believe that he was at risk of an imminent attack, his belief was not a reasonable one in the circumstances. The judge therefore found him guilty.[17]The question for the opinion of the court on an appeal by way of case stated was “whether the learned District Judge was right in concluding on the balance of probabilities that having a weapon five minutes after the risk of imminent attack had passed did not give the appellant a reasonable excuse and therefore a defence to the charge even though the appellant believed he was at risk of imminent attack.”[18]The appellant argued, by analogy with the law on self-defence, that the question of reasonable excuse was to be judged by reference to the facts as he believed them to be, even if his belief was mistaken. The Crown relied on McAuley in support of the proposition that the existence of a reasonable excuse is a matter of fact. The Divisional Court (Pitchford L.J. and Supperstone J.) held that each case must be determined on its own facts and that the District Judge had not erred. It also rejected a submission that the existence of a reasonable excuse was a matter to be determined solely by reference to the defendant’s own perception of the facts. Supperstone J. said that when a defendant claims that he had a reasonable excuse for possessing an offensive weapon because he believed he was at risk of imminent attack, it is for him to prove both the belief and the reasonableness of the belief on the balance of probabilities. Were that not the case, any defendant could claim that he honestly believed he was at risk of imminent attack. Pitchford L.J., agreeing with Supperstone J., accepted that one of the circumstances to be taken into account in deciding whether the defendant has established a reasonable excuse may be his belief that he was in danger of imminent attack, but he too rejected the suggestion that the question was to be determined solely by reference to the defendant’s state of mind. He held that the tribunal of fact is entitled to assess the matter for itself by reference to all the circumstances of the case.[19]In our view it is clear from the authorities that a fear of attack can constitute a good reason within the meaning of section 139(4) of the 1988 Act and it therefore follows that the defendant’s state of mind is not wholly irrelevant. Evans v Hughes might have been treated as deciding as a matter of law that a fear of attack is incapable of amounting to a defence unless it can be shown that the attack was imminent, but the court in McAuley rejected that view and held that it is for the jury to decide whether the defence is made out having regard to all the evidence.[20]The authorities, in particular Manning and Jolie, also establish that the expression “good reason” is not one that calls for judicial explanation, being an ordinary phrase in common use. In those circumstances it would be wrong for judges to hedge it around with rules of law designed to limit its scope or meaning. In some cases the court may be justified in ruling that certain facts are incapable of constituting a good reason, but it should be slow to do so. Such a course can be justified only if a finding that a good reason existed would be perverse. Normally, therefore, judges should simply direct the jury that, having found the facts, including, if appropriate, the facts as to the accused’s state of mind, they should decide whether they amount to a good reason. No further elaboration is required. In our view Gregson must be understood as a decision to the effect that mere forgetfulness, not allied to other circumstances, is incapable in law of amounting to good reason. Whether correctly decided or not, that appears to be the view of it taken in the later authorities. The distinction between what does amount to a good reason (a matter for the jury) and what is capable of amounting to a good reason (a matter for the judge) was explained in the case of R v Bown, but we would reiterate the observation made in that case that the court should be very slow to rule that a particular state of facts cannot as a matter of law constitute a good reason.[21]These principles were applied in N v DPP, in which the court accepted that the existence of a reasonable excuse within section 1 of the 1953 Act is a decision to be made by the tribunal of fact in the light of the evidence as a whole. Insofar as the defendant relies on his own perception of the facts, we do not understand the court in that case to have held that it is necessary as a matter of law for him to show that his belief is reasonable. That would involve imposing an unjustifiable limitation on the meaning of that expression. All the court was doing was pointing out that if the defendant cannot show that his belief was reasonable, that too is a matter to be taken into account and the tribunal of fact may find that the defence is not made out.[22]Miss Lee invited us to hold that N v DPP was wrongly decided and that, by analogy with the law on self-defence, the jury in this case should have been directed to reach their decision relying on the appellant’s own view of the situation facing her. We are unable to accept that submission. As Supperstone J. pointed out, there is no true analogy between self-defence and the defences of reasonable excuse and good reason because the legal principles and the burden of proof are different. Quite apart from that, however, if, as the authorities show, the question is simply one of fact, there can be no justification for making a decision otherwise than on the basis of the evidence as a whole.[23]No criticism can be made of the direction the Recorder gave in the course of his summing up, but the answer he gave to the jury’s question was not altogether satisfactory insofar as it tended to suggest that the appellant’s state of mind was irrelevant to the decision they had to make. We have some sympathy with the Recorder who was responding to a question that attempted to draw a hard and fast dichotomy between the appellant’s own perception of the threat facing her, however distorted and unreasonable, and the view of the situation that would be taken by an objective observer. In our view it was wrong to view the matter in such stark terms. The jury should have been told that they should simply find the facts, including any facts as to the appellant’s state of mind and the reason for it, and in the light of the facts as they found them decide whether in their view the defence was established. We accept that a direction of that kind may result in juries reaching different decisions on what are essentially similar facts, but that is a risk inherent in treating “good reason” as a question of fact. The risk of distorted thinking on the part of the appellant leading to a false perception of the risks he faces is something that the jury can, and no doubt will, take into account when it makes its decision. If the jury considers that defendant’s view of the facts was wholly unreasonable, for example, because he was drunk or had taken drugs or was suffering from mental illness, we think it unlikely that they would find that the defence has been made out, but ultimately it is a matter for them.[24]By directing the jury that they “should not approach the question subjectively by taking the defendant’s state of mind whatever you may think it was” and that “whether she had an angry and/or intoxicated and/or traumatised state of mind cannot amount to or contribute to having good reason” the Recorder effectively directed the jury that they should disregard entirely the appellant’s state of mind when deciding whether the defence of “good reason” was made out. For the reasons we have given we think that was wrong. We think it doubtful in the circumstances of this case whether, if the Recorder had directed the jury correctly, they would have come to a different conclusion, but it was properly open to them to do so and accordingly we consider that the conviction is unsafe and must be quashed.

Cited in 1 later judgment