Brooker v Director of Public Prosecutions [2005] EWHC 1132 (Admin)

Case No CO/6671/04[2005] EWHC 1132 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 12th April 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE STEEL
Between
CHARLES BROOKERClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
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 M HARDIE (instructed by GT Stewart, London, SE22) appeared for CLAIMANT.MR P MATTHEW (instructed by the Crown Prosecution Service) appeared for DEFENDANT.
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is an appeal by way of case stated against the appellant's conviction in the Bexley Magistrates' Court on 18th August 2004 of an offence of having with him in a public place an article which had a blade, contrary to section 139(1) of the Criminal Justice Act 1988.[2]The undisputed events which gave rise to the charge happened on 12th June 2004 at Welling. The appellant had with him a blade, 10 centimetres long. It was a blade from a butter knife. There was no handle. It had no sharp edge and no point. The only question for the court was whether it was an article of a kind possession of which in public is prohibited by section 139.[3]It is convenient at once to set out the material provisions of the section:
"(1) 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 pocketknife. (3) This section applies to a folding pocketknife if the cutting edge of its blade exceeds 3 inches. (4) 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."
The magistrates stated in paragraph 6 of the case:
"We were of the opinion that the article was a butter knife without a handle. This constituted a 'blade' within the ambit of section 139(2) Criminal Justice Act 1988 and accordingly we found that there was a case to answer."
The question posed for this court's consideration is in these terms:
"The question for the opinion of the High Court is: were we correct in finding that a butter knife without a handle fell within the category of bladed articles proscribed by section 139 Criminal Justice Act 1988?"
The formulation of this question is not entirely satisfactory. The fact that an object is designated a butter knife cannot of itself take it outside section 139(2). Some butter knives might, I suppose, have a cutting edge or a point. The real question here is whether a butter knife of the kind of which this appellant was in possession, namely one that was blunt without a point, is caught by section 139(2). It would be useful to consider the question posed by the magistrates' court as if the words "having no cutting edge and no point" were added between the words "handle" and "fell".[4]The appellant's short point is that a blunt butter knife is not the sort of article which section 139 was intended to proscribe. Reference is made to the decision of the Court of Appeal Criminal Division in R v Davies [1998] Crim LR 564, where the question was whether a screwdriver fell within the prohibition of section 139(2). It was apparently an ordinary screwdriver with no sharp point, but it had what the trial judge had described as "blades positioned on each side of the driving head". The case of Davies was referred to by the magistrates below (paragraph 5 of the case). In Davies Buxton LJ, delivering the judgment of the court, indicated that the question whether the screwdriver fell within the expression "any article which has a blade" in section 139(2) was one of statutory construction. The judge in that case had been right to decide it himself rather than leave it to the jury. It seems to me that the question in our case is likewise one of statutory construction. Here is the text of the essential reasoning in Buxton LJ's judgment:
"We are, however, quite unable to agree with the conclusion to which he came. Firstly, we take up the argument advanced by Miss Deacon which also, so far as we can see, lies behind the judge's ruling. It is too simple to say that the mischief of this section is to deter the carrying of items that could cause injury. Preventing or deterring further offences in which injuries are caused is, we entirely accept, no doubt the long-term and perfectly understandable objective of Parliament in passing sections such as section 139. Such an objective was also behind the Prevention of Crime Act 1953 which, however, limited itself to objects made or intended for the purpose of causing injury. The contention here goes much wider: that any object that could be so used potentially falls within the section. The objections to that are twofold. Firstly, it gives the section an extremely wide ambit. As soon as an object falls within this section and a citizen is found with it in his possession in public, he has to prove that he has a good excuse for having it. That is a very significant limitation on the citizen's freedom. It should not be assumed that it has been achieved except by the use of clear words. Second, the degree to which Parliament thought it proper to interfere with the citizen's freedom in that way is demonstrated by the limitation in the section to articles, in section 139(2), which have a blade or are sharply pointed, except folding pocketknives. The common sense assumption that lies behind that section is that Parliament sought to prevent or deter the carrying of what might be broadly called sharp instruments in public, not any article that has a blade -- even if a screwdriver can be so described -- but an article with a blade that falls within the same broad category as a knife or a sharply pointed instrument. That follows not only as a matter of common sense, but by looking at the specific items that are mentioned in the section, that is to say sharply pointed instruments or folding pocketknives, and inferring from that what the nature of the bladed article is to which Parliament was referring. It seems to us, in that comparison, that it would be quite unlikely, indeed in our view impossible, that Parliament intended an article such as a screwdriver, just because it has a blade, to fall into the same category as a sharply pointed item or a folding pocketknife. Further, that that is the construction of the phrase 'any article which has a blade' is strongly reinforced by referring to section 139(3), which we have already read. The section applies to a folding pocketknife if the cutting edge of its blade exceeds three inches. That section, in its very language, seems to assume that references to blades entail references to a cutting edge. That is how the expression is used in section 139(3). It is also, as we have said, the way in which the other items in section 139(2) seem to be described. In our judgement, the test cannot be, as the judge suggested, whether the article is capable of causing injury. If that were the test there would be no need and no justification to do what Parliament has specifically done, and limit the section to bladed items and sharp instruments. If the objective was to outlaw the carrying of all items capable of causing injury there would be no explanation at all for why there was a limitation to articles which happen to have something that could be described as a blade."
[5]Mr Hardie for the appellant submits that this reasoning applies with equal force in the present case. He submits in terms that only a blade which is inherently dangerous, thus sharp or pointed, is caught by the section.[6]In addition to Davies, he seeks to rely on statements from Ministers promoting the Bill in both Houses of Parliament, and frequent references by them to a sharp bladed instrument and like expressions. It is not necessary to set out all the citations. He submits that the reasoning of Buxton LJ in Davies directly supports his contention that it is an ingredient of the offence that the blade in question be inherently dangerous.[7]For my part I would accept that a sharp blade or pointed instrument is the paradigm case to which section 139 is directed. However, the words of the statute are, as Mr Matthew for the Crown submitted, unqualified:
"any article that has a blade"
. I do not accept that Buxton LJ was laying down a rule to the effect that only sharp blades are caught. He referred to "an article with a blade that falls within the same broad category as a knife or sharply pointed instrument." It is important to have in mind that his first concern was to decide the precise question before him, namely whether a screwdriver was caught by this section. In my judgment we should create a great mischief if we construed this statute so as to invite argument, in case after case, as to whether or not the object in question was sharp.[8]I am not persuaded that the Prevention of Crime Act 1953 affects the matter. Mr Hardie submitted that section 139 was enacted to fill a lacuna in the earlier statute. He referred to what was said by the Earl of Caithness in the House of Lords on 3rd November 1987 (Hansard, column 920):
"The Prevention of Crime Act 1953 makes it an offence to have an offensive weapon in a public place without reasonable excuse or lawful authority. It then 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 on the accused to prove on the balance of probabilities that he has lawful authority or reasonable excuse for having the weapon with him. But for all other articles, including most knives, the onus is on the prosecution to prove beyond reasonable doubt that the possessor intends to use it to cause injury. Once that has been established the accused still has the lawful authority or reasonable excuse defence to fall back on. This amendment removes from the offence the need for the prosecution to show that the possessor of a knife intends to use it to cause injury. Broadly, it places the knife carrier in the same position as the possessor of an offensive weapon per se under the Prevention of Crime Act 1953. The fact that a knife is as potentially dangerous, if not more so, than say, a sharpened comb or a cosh persuades us that the proposal is not unreasonable."
As I have said, a sharp knife is no doubt the paradigm case. This reasoning in the Minister's speech, if it is legitimate to refer to it at all, does not show that the new section filled a lacuna in the previous statute. It shows only that the new provision was intended to complement the old.[9]In the circumstances I consider that the magistrates were right here. I would accordingly answer the question posed in the stated case in the affirmative and dismiss the appeal.

MR JUSTICE STEEL: I agree.