Harriot v Director of Public Prosecutions [2005] EWHC 965 (Admin)

Case No CO/1117/2005

[2005] EWHC 965 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 4th May 2005

Strand

London WC2

B E F O R E:

LORD JUSTICE SEDLEY

MR JUSTICE MITTING

Between

HARRIOTClaimant

-v-

Between

DIRECTOR OF PUBLIC PROSECUTIONSDefendant

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MR D SONN (instructed by Sonn MacMillan) appeared for CLAIMANT

MISS E STRATTON (instructed by CPS Bermondsey) appeared for DEFENDANT

J U D G M E N T

LORD JUSTICE SEDLEY:

This

[1]is an appeal by way of case stated against the conviction of Mr Harriot at Camberwell Green Magistrates' Court on 23rd August 2004 upon two charges of possessing a bladed article in a public place, contrary to section 139 Criminal Justice Act 1988.

[2]The charges resulted from an altercation in the reception area of a bail hostel in which the appellant had been living for some six months. He returned there on 22nd December 2003 and found that his room had been burgled. He put a bread knife and a kitchen knife in his pockets, made an angry scene in the reception area, and was finally locked out. From the area which I will call the forecourt of the hostel, two police constables who had been observing him escorted him back in and searched him. They found the knives which he advanced no lawful excuse or reason for having with him. He told the police, in fact, that he was looking for the offender with them. The single issue was whether he had had them in a public place described in the charges as "outside 14 Rutford Road, London SW16".

[3]District Judge Wain held that this was a public place and convicted him. In the case which he has stated for this court, he asks whether he was correct to find that "the area in front of the hostel" was a place to which the public had access within the meaning of section 139(7). The material parts of section 139 provide as follows:

"(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."

There is no need in the present case to refer to subsections (3),(4) or (5). Subsection (7) provides:

"In this section 'public place' includes any place to which at the material time the public have or are permitted access, whether on pavement or otherwise."

[4]Among the facts found by the District Judge were these: (a) On 22nd December 2003 the appellant had been living at 14 Rutford Road for about six months. The premises are a bail hostel occupied by a number of other persons. Access to the building is by key for residents. For non-residents an intercom (shown on the photographs produced by the defendant) has to be used . . . (f) The appellant went to the reception area of the hostel where he behaved in an angry manner. He then went outside and was locked out. He was still very angry . . . (h) I was shown some photographs of the front area of the address. I found that when the appellant was first seen he was standing in about the position of the manhole cover shown on the second photograph, that is to say, about halfway along the path between the hostel building and the wall marking the front boundary of the premises . . . (l) 14 Rutford Road, London, SW16 is a bail hostel in multi occupation. (m) As I could see from the photographs that were produced -- (i) the hostel was set far back from the road; (ii) the pedestrian entrance from the road is a gap in the front wall and there is no gate; (iii) the wall is a low wall about ten bricks, or one metre, high which marks the boundary with the public highway; (iv) there is no fence or other obstruction on the wall; (v) there are no signs prohibiting access in any way whatsoever; (vi) access to the front of the hostel is unimpeded."

[5]Two photographs taken while the case was pending show a block of flats separated from the pavement by a low brick wall, save where an ungated gap in the wall gives access to a paved path by which access is given to the side door of the building. The District Judge considered authorities, to some of which we too will have to refer, before concluding as follows in paragraph 10:

"I was of the opinion and found that -- (a) having regard to the nature of the premises, it was a hostel in multi occupation; (b) the premises were set well back from the road with an extensive open area in front; (c) there was no barrier preventing unimpeded access to the front area; (d) there were no notices or signs prohibiting or restricting access that the area where the appellant had been apprehended was not a private garden but was a public place to which the public had access within the meaning of section 139(7) of the Criminal Justice Act 1988."

The District Judge asks whether he was correct so to find.

[6]For the appellant it is submitted that public access for the purposes of the same expression in the Road Traffic Act 1930, section 7, meant "the public generally, and not the special class of members of the public who have occasion for business or social purposes to go to the [premises]", per Lord Clyde in Harrison v Hill [1932] JC 13, an interpretation cited with approval by May J in Deacon v AT (a minor) [1976] RTR 244.

[7]It is further submitted that where land is on the face of it private land, the prosecutor must establish the fact of public access, for example in relation to the forecourt of a private members club (Pugh v Knipe [1972] RTR 286) or the front path and doorway of a terraced house (R v Roberts

[1978] Cr.App.R 228

,CA), a case on the somewhat different phrase -- "private premises", albeit defined in the statute by reference to public access. In Williams v DPP

[1992] 95 Cr.App.R 415

a conviction was quashed by this court on the ground that the landing of a block of residential flats where the appellant had been drunk and disorderly, and to which access was restricted to residents and their lawful visitors, was not a public place.

[8]All these cases are relied on by Mr Sonn, solicitor advocate for the appellant, as establishing that the District Judge went too far in the present case in finding as he did.

[9]In apparent contrast to those cases, and relied upon by Miss Stratton who has advanced a helpful argument on behalf of the respondent, is the decision of the this court in Knox v Anderton

[1982] 76 Cr.App.R 156

upholding the conviction on an offensive weapon charge of a man found by the police on the landing of a block of flats on an estate to which there was unimpeded access. There, however, the evidence demonstrated that the estate proprietor, the local authority, had acquiesced in public use of the estate as a thoroughfare, and that there was no accompanying denial of access to the landings and staircases. Similarly, the evidence in R v Powell [1965] Crim LR 511, to which Miss Stratton also draws our attention, established that the grounds of a hospital were open to visitors and others accompanying them and for that reason could be said to be a public place. Recently, however, the Court of Appeal, Criminal Division, in the case of R v Roberts

[2003] EWCA Crim 2753

overset an attempt to extend the concept of a public place in relation to the possession of bladed articles by treating a small front garden, which was private, as public by reason of the ease with which the defendant could have reached out and attacked passing members of the public.

[10]While it would not be useful or wise for this court to attempt to substitute for the statutory phrase some definition or exegesis of its own, it seems to me that the principle which runs through all of these cases is that land may be either on the face of it public or on the face of it private land: a street would be an example of the former, the front garden or front area of a private dwelling an example of the latter. In the latter case, however, it is also clear that the ostensibly private character of the land may be negated by evidence that the general public -- that is to say anyone who wants to -- does in fact have access to it, whether by permission or not. This was the case in Knox v Anderton. It was not the case in the 1978 case of Roberts which concerned, as this case does, the enclosed but accessible area between a house and the highway.

[11]Does the nature of the offence make a difference, as Miss Stratton was inclined to argue it did? In other words, may a public place have a different meaning depending on whether the charge is driving a motor vehicle there, being drunk and disorderly there, or carrying a bladed article there? The decision in the 2003 case of R v Roberts suggests not. It would, moreover, be disruptive of legal certainty if a phrase repeatedly used by Parliament, albeit for different purposes, were given differential meanings in this way.

[12]On the other hand, it is plain that a public place is not a term of legal art and that the statutory definition with which we are concerned here is illustrative and not exhaustive. It follows that the tribunal of fact has a certain margin of judgment within which to reach a conclusion as to whether the offence charged occurred in a public place. But, as the authorities show, it is a conclusion which is fairly tightly bounded by law.

[13]Here the open area between the bail hostel building and the road was, on the face of it, part of private premises. There was no evidence before the District Judge that public access to it was either invited or tolerated. The District Judge placed weight upon the undoubted fact that access from the street was unimpeded, whether physically or by displayed notices. But this is, in my judgment, not enough to turn a private place into a place to which the public has access. Unlike the people who regularly used the estate in Knox v Anderton as a thoroughfare, anybody entering the hostel area otherwise than as a lawful visitor would on the face of it be a trespasser. In lawful visitors, I include not only residents and staff but anyone with lawful business who has implied permission to go to the door (see Robson v Hallett

[1967] 2 QB 939

, R v Roberts

[1978] 67 Cr.App.R 228

, in each case per Diplock LJ). But, unless every front garden or front path is to be a public place, it seems to me that the area between this bail hostel and the street has to be regarded in law as a place to which, absent evidence to the contrary, the general public do not have access.

[14]Accordingly, while I entirely understand why the District Judge found as he did in the clear and cogent case he has stated for this court, I am driven to the conclusion that it was not open to him on the material before him to find that the knives that the appellant was carrying had been in his possession in a public place.

[15]I would accordingly remit the case with a direction to acquit.

[16]MR JUSTICE MITTING: I agree for the reasons given by my Lord. I only wish to add a few words of my own in deference to the submission to which Miss Stratton was eventually driven, that the phrase "to which the public has access" is synonymous with "from which the public is not excluded". I do not accept that proposition. A private garden, clearly delimited as such, is not a place to which the public have access merely because public access is not physically obstructed by a fence, wall or gate, or legally prohibited by a notice or by any combination of them. It remains a private not a public place unless evidence is led which proves that members of the public do in fact have access to it by going onto it in their capacity as members of the public. In the absence of such evidence, a private garden, whether of a single dwelling house, a block of flats or a hostel, is not a place to which the public have access.

[17]On the facts found by the District Judge there was no such access by the public to this private garden. He was not therefore entitled to find that this garden was a place to which the public had access. For those reasons, too, I would allow this appeal.

LORD JUSTICE SEDLEY: Mr Sonn you have probably had tougher days. Do we have any other application?

[19]MR SONN: My Lord, yes, there is an application for costs. The appellant in this case is not publicly funded. There is an application for costs against the respondent.

LORD JUSTICE SEDLEY: What about costs below?

[21]MR SONN: He was publicly funded for that.

LORD JUSTICE SEDLEY: Does that mean that you have a duty to protect the public funds below?

[23]MR SONN: I think the position is that in any event the costs arising have already been claimed from the Legal Services Commission, so it would be undesirable to --

LORD JUSTICE SEDLEY: Money already spent. So you want your costs in this court. Miss Stratton?

[25]MISS STRATTON: My Lord, only that the application was for costs against the respondent. As I understand it, it should be costs from central funds.

LORD JUSTICE SEDLEY: Yes, your client is the CPS or the District Judge?

[27]MISS STRATTON: The CPS.

LORD JUSTICE SEDLEY: Why should it be out of central funds? Is there a test? We are repeatedly given this option. I perceive from the CPS that any order for costs makes a hole in its budget. It could recoup it from the Treasury, I imagine. What is the principle where we should discriminate between CPS and central funds?

[29]MISS STRATTON: My Lord, I am just checking the provisions.

LORD JUSTICE SEDLEY: Miss Stratton, we can perhaps save you some trouble. This is not a case where the prosecution should never have been brought or anything of that sort. It was perfectly reasonably brought and a difficult issue. We are disposed to give Mr Sonn costs out of central funds. I do not suppose he minds where they come from.

[31]MR SONN: No.