Henderson, R. v [2016] EWCA Crim 965

[2016] EWCA Crim 965Case No 2015/1075/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 27 May 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HAMBLEN
MR JUSTICE JAY
HIS HONOUR JUDGE WAIT
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownV
Between
CHRISTOPHER HENDERSON
Computer-Aided Transcript of the Stenograph Notes ofWordWave International Limited trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr C Beyts appeared for AppellantMr T Probert-Wood appeared for Crown
J U D G M E N T (Approved)
[1]On 1st December 2014, in the Crown Court at Isleworth before Recorder Peddie QC, the appellant was convicted of having an article with a blade, contrary to section 139(1) of the Criminal Justice Act 1988. He was acquitted of offences of possessing a disguised firearm (count 1) and possessing a false identity document with intent (count 2).[2]On 9th December 2014, before His Honour Judge Johnson, the appellant was sentenced to six months' imprisonment which was ordered to run consecutively to a sentence of five years' imprisonment for offences on other counts on the original indictment. The appellant appeals against conviction by leave of the single judge. The outline facts[3]At about 6 am on 29th April 2014, police officers entered [an address in], London W13, where they found the appellant, his wife, their baby and the appellant's wife's brother. The police searched the premises and found in a room a bunch of keys which included the keys to the appellant's Ford Mondeo car. They also seized a stun gun (count 1) and a false French passport (count 2) which was found in a cupboard in the hallway. The appellant's car was parked in a communal car park at the rear of the flats which was agreed to be a public place. When the boot was searched PC King found a lock knife in a bag which contained baby changing items. The appellant was arrested and made no comment when later interviewed by the police in the presence of his solicitor.[4]The prosecution case was that the appellant had with him on 29th April 2014 in a public place, [an address in] W13, a bladed article, the lock knife.[5]The appellant gave evidence at trial that he was not in occupation of the flat and did not know the stun gun or passport were in it. He said that he did own a knife but that he had not put it in his car. He said that the knife was used by his wife to open cardboard cartons of what the judge recorded as Actimel, but might not have been that product. He said that he did not know that the knife was in the bag or that the bag was in the car. In cross-examination he confirmed that he was the only person who used the car. The ruling on submission of no case to answer[6]In respect of count 3 a submission of no case was made on behalf of the appellant on the grounds that he was a considerable distance away from the car and therefore he did not have the lock knife "with him in a public place". The submission was rejected by the judge who accepted the prosecution case that the appellant had been in close contact with the lock knife "by virtue of it being in the car as opposed to distant from the vehicle." The grounds of appeal[7]The grounds of appeal are that the conviction was unsafe because:(1) the judge erred in finding that the appellant could in law be guilty of having with him in a public place a bladed article;(2) the judge accordingly wrongly rejected the submission of no case to answer at the close of the prosecution case and wrongly left the case to the jury at the conclusion of all the evidence;(3) alternatively the judge failed to give the jury adequate directions on the particular facts of the case.[8]The appellant contends that the judge erred in law in finding that at the time of his arrest in a flat on the second floor of the building, it was open to the jury to find that the appellant "had with him in a public place" a knife which was in his car in the car park. In particular it is submitted that:(1) "having with" is much narrower than possession and requires an immediacy and physical presence which were lacking in the instant case; and(2) even though the knife was in a public place, the appellant was not and thus he did not have the knife with him in a public place or, if he did, this emphasises the inconsistency of the appellant having with him an item both in a public place and private place at the same time.[9]The respondent contends that:(1) whether the appellant had the knife with him as a matter of fact and degree was to be determined in each case;(2) on the facts of the instant case the appellant had ready access to the car keys and was only a matter of yards from the car and therefore had sufficient ready access to the knife to be capable of having it with him;(3) the knife was in a public place, namely The Broadway, as alleged in the indictment.[10]In support of the appellant's case reliance is placed on two Scottish cases. In McVey v Friel 1996 SCCR 768 the issue was whether the defendant McVey had with him in a public place a firearm contrary to section 19 of the Firearms Act 1968. The facts were that police officers saw a loaded air rifle in McVey's car when it was parked outside his home at 8.30 in the morning. The appellant agreed to allow the police to search the car and opened the car door for them. The Sheriff convicted the appellant on the ground that he had the gun with him while he was in the house and that in any event he had it with him when he opened the car for the police. In his judgment, the Sheriff said as follows:
". . . I think the approach taken by the procurator fiscal depute has merit. The analogy drawn by him of a person in a friend's house regarding himself as 'having with him' a cassette in his car parked outside is in my view a good one. It seemed to me that the phrase 'has with him' if given its ordinary meaning can extend to situations such as this, where the article in question is in a car belonging to and under the control of the accused and the accused is in a house nearby. An ordinary person would in my view regard the accused as having the article with him ... I would in any event have upheld the submission on the basis that even if, while he was in the house, the appellant did not have the weapon with him, he had it with him when he was at the car, having opened the car."
[11]The appeal was allowed by the Appeal Court but no opinions or reasons were given. The appellant relies on the fact of the successful appeal and the inferred rejection of the Sheriff’s reasoning.[12]In Smith v Vannet 1998 SCCR 410 a cosh and a knife was in the defendant Smith's car which was about six feet away from him when he was stopped and searched by the police. The Appeal Court held that Smith had the weapons with him as they were readily available for use by him. The court's conclusion was explained in the following terms:
"If we apply a purposive approach to the sections with which we have to deal, it appears to us that they are designed to prevent people in a public place having offensive weapons and knives available to them which they may be liable to use ... in his pocket the appellant had the keys to the car and the car was only some six feet away in a narrow lane in the early hours of the morning. The cosh was under the passenger seat and the knife under the driver's mat. These weapons would have been readily available to the appellant for use in the lane had he wished to make use of them. In our view on the basis of these facts the Sheriff was entitled to conclude that the appellant had the cosh and knife with him in the lane."
[13]In that judgment reference was made to and reliance placed upon this court's decisions in R v Kelt [1977] 1 WLR 1365 and R v Pawlicki and Swindell [1992] 1 WLR 827. In R v Kelt, Scarman LJ stated as follows at page 1369:
". . . the legislature has drawn a distinction between the person who has a firearm with him and a person who is in possession of a firearm ... The legislature must have had in mind that in regard to those offences where it is an offence for a person to have with him a firearm there must be a very close physical link and degree of immediate control over the weapon by the man alleged to have the firearm with him."
He further stated at page 1370: “. . . possession is not enough ... the law requires the evidence to go a stage further and to establish if the accused had it with him. Of course the classic case of having a gun with you is if you are carrying it, but even if you are not carrying it you may yet have it with you if it is immediately available to you. And if all that can be shown is possession in the sense that it is in your house or in a shed or somewhere where you have ultimate control,that is not enough."[14]In R v Pawlicki and R v Swindell the appellant Pawlicki drove to an auctioneer's showroom, parked outside, locked the car leaving three sawn-off shotguns inside and went into the auction room and stood a few feet from the appellant Swindell. Police officers who had been alerted to the possibility of a robbery arrested both appellants. A search of Pawlicki's car revealed the sawn-off shotguns. Both appellants were convicted inter alia of having the firearms with intent to commit an indictable offence, namely robbery, contrary to section 18(1) of the Firearms Act 1968, which provides that:
"It is an offence for a person to have with him a firearm ... with intent to commit an indictable offence."
[15]As summarised in the headnote it was held that "to have with him a firearm" within the meaning of section 18(1) of the Firearms Act 1968, imported an element of propinquity which was not required for mere possession but in considering that element the emphasis was on the accessibility of the guns to those embarking on committing an indictable offence rather than on the exact distance between them and the guns. In the circumstances the guns were readily accessible to the appellants at the time they were about to commit a robbery and therefore there were no grounds for interfering with the conviction for an offence under section 18(1) of the Act of 1968.[16]As stated by Steyn LJ at page 831H to 832B:
" ... the words 'to have with him a firearm' must derive their colour from the purpose of the Firearms Act 1968. That purpose, in broad terms, is to combat the use of the firearms in and about the commission of crime and to protect public safety. The legislative technique, in so far as it is relevant, involves prohibitions on possession of firearms, and prohibitions on having a firearm. It was intended to be a relatively comprehensive statute. It is submitted that a distance of 50 yards between the men and the guns placed the men beyond the ambit of section 18(1). If that proposition is accepted, the 1968 Act is less effective than one would have expected. It seems to us that a court order ought to try to make sense of the statute and its purpose. If this purposive approach is adopted, it will still be necessary to consider the element of propinquity. But the emphasis must not be so much on exact distances between the criminals and their guns but rather on the accessibility of those guns, judged in a common sense way in the context of criminals embarking on a joint enterprise to commit an indictable offence."
[17]The authorities indicate that in determining whether a person has a weapon "with him", relevant considerations include the following:(1) Possession of a weapon is a wider concept than having it "with him".(2) Having a weapon “with him” is a wider concept than carrying it.(3) The propinquity between the person and the weapon.(4) Whether the weapon is immediately available to the person.(5) The accessibility of the weapon.(6) The context of any criminal enterprise embarked upon.(7) The purpose of the applicable statute. Decision[18]In the present case it is to be noted that:(1) The appellant was not near his car, as the defendant was in Smith v Vannet. He was in a second floor flat a considerable distance away.(2) There was no evidence that the appellant had shortly left or was shortly to return to the car, as was the case in R v Pawlicki.(3) There was no evidence that the knife in the car was linked in any way to his presence in the flat on that day or at all, unlike in R v Pawlicki.(4) There was no evidence linking the knife to any ongoing or indeed any criminal enterprise, unlike in R v Pawlicki.(5) The facts are comparable to the case of McVey v Friel in which the appeal was allowed.[19]In this case there was no close geographical, temporal or purposive link between the knife which was in a public place and the appellant who was in a private flat. Nor do we consider that it can be said that the knife was immediately available or readily accessible to the appellant.[20]In the light of the considerations set out above we conclude that the appellant did not in law have the knife “with him". Conclusion[21]For the reasons outlined above the judge should have accepted the defence submission of no case to answer. The conviction is unsafe and it must accordingly be quashed.