Royal Borough of Windsor and Maidenhead, R (on the application of) v The East Berkshire Justices [2010] EWHC 3020 (Admin)

Case No C0/2333/2010[2010] EWHC 3020 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of Justice
Strand
London WC2A 2LL
THURSDAY, 21ST OCTOBER 2010
B e f o r e:
SIR ANTHONY MAY
(THE PRESIDENT OF THE QUEEN'S BENCH DIVISION)
Between
THE QUEEN ON THE APPLICATION OF THE ROYAL BOROUGH OF WINDSOR AND MAIDENHEADClaimantv
Between
THE EAST BERKSHIRE JUSTICESDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr J Whitley (Instructed By The Local Authority) Appeared for ClaimantMr M Hakme (Instructed By W J Daniel & Co) Appeared for Interested Party
J U D G M E N TDate 2010-10-21

SIR ANTHONY MAY

[1]: The interesting single question raised by this claim for judicial review is whether a grapefruit knife, such as I shall describe in a moment and which had been produced to me in court, is a knife within section 141A of the Criminal Justice Act 1988 as amended by the Offensive Weapons Act 1996. The respondent, East Berkshire Magistrates' Court, decided that it was not a knife in a prosecution brought by Trading Standards officers of the Royal Borough of Windsor and Maidenhead against the interested party, W J Daniel and Company Limited, one of whose employees had sold the grapefruit knife, as I now see for £2.99, to a test person under the age of 16 on 17 February 2009.[2]Beatson J gave permission to bring these judicial review proceedings, observing that the more normal route of challenge to a Magistrates' Court's decision in criminal proceedings was by way of case stated, and this may not have been used because it would have been out of time. Mr Whitley for the claimant tells me that that was not the reason judicial review proceedings were brought. He says that it was considered to be more appropriate where the issue was a single and straightforward point of law.[3]I propose to entertain this claim without examining in detail whether it is a case where, unusually, judicial review is appropriate. This case should not be used as a precedent adding to or modifying existing authority on this topic.[4]Section 141A of the 1988 Act as amended provides relevantly as follows:
"(1) any person who sells to a person under the age of 18 years an article to which this section applies shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 6 months, or a fine not exceeding level 5 on the standard scale, or both. (2) subject to sub-section (3) below, this section applies to - (a) any knife, knife blade or razor blade; (b) any axe, and (c) any other article which has a blade or which is sharply pointed and which is made or adapted for use for causing injury to a person. Sub-section 3 has exceptions which are not relevant to the present case. Sub-section 4 provides: "
It shall be a defence for a person charged with an offence under sub-section (1) above to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence."[5]I was provided in advance with a clear photograph of the knife in question and have now been provided with the knife itself. The photograph has a ruler beside it which enables me to see what the dimensions of the knife are. It has a straight oval shaped handle, approximately 3/4 of an inch in diameter and approximately 4 inches in length with an open, circular extension at the end of the handle, no doubt for hanging it on a hook. It has a blade which is slightly narrower than the handle, approximately 4 and a quarter inches long, with a pointed end and serrated cutting edges on both sides of the blade for about half of the blade's length at the pointed end. The pointed end curves upwards somewhat so, that the blade's profile looked at from sideways is not straight.[6]The magistrates heard evidence from a director of the interested party and a representative of the supplier to the effect that they did not regard this grapefruit knife as a knife within section 141A, but rather, at least as one of them may have said, as a gadget.[7]The magistrates dismissed the information which had been made on 14 August 2009 alleging breach of section 141A, making what they characterised as a finding of fact that this was not a knife within the section.[8]I am told today by Mr Hakme on behalf of the interested party that although the magistrates were directed to the question of whether the object was indeed a knife, no substantial point was taken on behalf of the interested party that it was not a knife. Rather the defence was a defence under 141A(4) to the effect that the interested party took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.[9]The magistrates having decided it was not a knife did not proceed to deal with that defence or other matters. They recorded that they reached the conclusion that it was not a knife because despite the use of the word "knife" in the description this did not define it as a knife within the meaning of the Act. They were not satisfied beyond reasonable doubt that the article was a knife because it had a curved blade designed specifically for a single use and because it was distinct or different from a usual straight bladed instrument that in general usage characterises a knife. They also referred to the supplier's evidence about the understanding of those who supply and market these instruments.[10]In my judgment this is not a pure question of fact, but rather a mixed question of fact and law. Once it is determined what by description the article is and what are its characteristics it is a matter of law whether it is a knife within the section of the Act. Nor do I consider that any of the magistrates reasons are persuasive reasons to determine the issue of law. An article designed for single use may well be a knife. Some articles with curved blades may be knives. The supplier's understanding is certainly not determinative and may not be relevant.[11]Section 141A of the 1988 Act appears in a part of it, as amended, which has a heading "Articles with Blades or Points and Offensive Weapons." Section 139 makes it an offence to have an article with a blade or point in a public place and section 139A makes it an offence to have such an article on school premises. Section 141 is concerned with offensive weapons. None of these sections refers in terms simply to a knife, in contrast with section 141A, and for that section there is no definition of knife. But section 139 excepts from "an article which has a blade or point" a folding pocketknife, which is a single word in the statute, and then section 149(3) provides that the section does apply to a folding pocketknife if the folding edge of the blade exceeds 6 inches. Thus the legislation envisages that a folding pocketknife, which is, one supposes, a knife, will have a blade and a cutting edge.[12]The first definition of "knife" within the second edition of the Oxford English Dictionary, contains this:
"Knife. A cutting instrument consisting of a blade with a sharpened longitudinal edge fixed in a handle either rigidly, as in a table knife, carving or sheath knife, or with a joint, as in a pocket or clasp knife. The blade is generally of steel, but sometimes of other material, as in the silver fish and fruit knives, the blunt edged paper knife of ivory, wood, etcetera, and the flint knives of early man."
That accords with my understanding of the meaning of the word "knife" and there is in my judgment nothing in the legislation to suggest that the word has a different meaning within section of 141A(2)(a). This meaning accords with the description of the blade, at least, of a pocketknife within section 139(3).[13]In my judgment this grapefruit knife is a cutting instrument consisting of a blade with a sharpened longitudinal edge -- it has two such edges in fact -- fixed in a handle, and in my judgment it is a knife within section 141A(2) of the 1988 Act. Mr Hakme, very sensibly if I may say so, did not attempt to argue in this court otherwise.[14]I should add for completeness that there is a definition of "knife" in section 10 of the Knives act 1997 which is consistent with what I have just held, but that is subsequent legislation.[15]Accordingly, in my judgment this claim for judicial review succeeds and it will be necessary for the matter to be sent back to the magistrates, having quashed their decision, for them to continue to hear the case.[16]Mr Whitley, does anything else other than costs need to be dealt with?[17]MR WHITLEY: My Lord, not being a regular before this court or this jurisdiction, the mechanics of that return, I do not know whether my Lord sets a time limit or it is up to the parties, the prosecutor, to contact the court to inform them of the decision and then to set a timetable.

SIR ANTHONY MAY: Well the precise mechanics, I guess, are that the Magistrates' Court are a party to these proceedings and will therefore get notification of the outcome. It is indeed for the parties and the court to arrange what is to happen hereafter.

[19]MR WHITLEY: I am grateful, my Lord. My Lord, if I may turn to the issue of costs? Of course the usual rule is that costs follow the event. The difficulty in these sorts of proceedings is of course against whom any costs order is to be made. It is not possible for an order to be made from central funds because the Local Authority falls within the definition of public authority under the Prosecution of Offences Act. The Magistrates' Court are not usually --

SIR ANTHONY MAY: It is not usual to order magistrates who do not appear and take part to pay costs.

[21]MR WHITLEY: And I cannot allege any sort of misconduct or anything of the sort to suggest anything otherwise. I am afraid I look to the interested party and suggest that it would be appropriate. The interested party has, if I can put it this way, been silent through these proceedings until today. There was no rebuttal served. There was an acknowledgment of service lodged. A pre-action protocol letter was served on both the defendant Magistrates' Court and the interested party on 11 January. Had there been an acceptance that this was a knife, which we appear to have from them this morning, this might have taken a rather more rapid course, if I may put it that way.

SIR ANTHONY MAY: Well, it has not taken exactly very long.

[23]MR WHITLEY: It could have been dealt with rather more shortly if there was that simple acceptance. There has not been until today, and in those circumstances, in my submission, my Lord, I submit it is appropriate for there to be an order for costs of these proceedings against the interested party.[24]MR HAKME: I have to say, if I may respond, I am astonished my learned friend is asking for costs against us.

SIR ANTHONY MAY: I am not going to make you pay the costs. It does not seem to me, Mr Whitley, to be appropriate, in particular because I am told, and you have not said otherwise, that this was a point which essentially the magistrates thought up for themselves, and it was not urged upon them in the court below.

[26]MR WHITLEY: It was a point raised in the sentence. As my learned friend, I think, put it, you have to be sure that it is a knife. If you are sure it is a knife you move on to the due diligence issue, that is the way it was put.

SIR ANTHONY MAY: Of course, but any careful counsel will take the magistrates through the steps they have to go through. It does not appear that the interested party made any case that this was not a knife.

[28]MR WHITLEY: There was no concession of the point, if I put it that way, and it was raised in sentence. The only way I would put it is that there has been no engagement with this process until today, and the interested party does seem to be represented.

SIR ANTHONY MAY: You have that point, but it does not persuade me to award you costs. Thank you very much. The magistrates' decision that this was not a knife will be quashed. The case will be remitted to them to continue the hearing. No order as to costs of these proceedings.

Cited in 1 later judgment