Cooke v Director of Public Prosecutions [2015] EWHC 3312 (Admin)

Case No CO/1793/2015[2015] EWHC 3312 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday 20 th October 2015
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE BEATSON
and
MR JUSTICE MITTING
Between
RONALD COOKEAppellant
B E T W E E N:
- v -
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
Mr Kevin Hill (of Hill Twine Solicitors, Dorset BH1 2EF) appeared for AppellantMr Duncan Penny QC and Mr James Boyd (instructed by the Crown Prosecution Service) appeared for Respondent
Computer Aided Transcription byWordwave International Ltd trading as DTI165 Fleet Street, London EC4A 2DYTelephone No: 020 7404 1400; Fax No: 0207 7404 1424(Official Shorthand Writers to the Court)
J U D G M E N TTuesday 20 th October 2015
[1]The appellant is a trader who trades under the name Dorset Militaria and British Bobby from premises in Dorset. On 19th September 2013 search warrants were executed by police at his home and at his business premises. A considerable quantity of police caps, helmets, badges and bags were seized. He was charged with eight offences of possession of articles of police uniform, contrary to section 90(3) of the Police Act 1996. He was convicted on 5th August 2014 of all offences by Bournemouth Magistrates' Court. He appealed to the Crown Court which dismissed his appeal on 5th December 2014. He appeals by Case Stated against the decision of the Crown Court.[2]The facts were not and are not in dispute. The seized items were "articles of police uniform", as defined by section 90(4), "any article of uniform or any distinctive badge or mark ... of identification usually issued to members of police forces ... or anything having the appearance of such an article, badge, mark ..." They were part of the appellant's stock in trade. He bought from a variety of sellers and sold to members of the public, mostly on-line. He carried out no checks on the identity of those who bought from him, or as to their purpose in doing so.[3]Section 90(3) of the 1996 Act provides:
"Any person who, not being a member of a police force or special constable, has in his possession any article of police uniform shall, unless he proves that he obtained possession of that article lawfully and has possession of it for a lawful purpose, be guilty of an offence ..."
The appellant relied on the statutory defence. He accepted that the legal burden of proof lay upon him to establish that he had obtained possession of the articles lawfully and had possession of them for a lawful purpose, and that he had to do so on the balance of probabilities.[4]The prosecution and the Crown Court either accepted that he had obtained possession of the items lawfully or accepted that he had done so, subject only to the proposition that his subsequent possession of the articles might have converted his initial obtaining of them into unlawful obtaining.[5]The sole question which the Crown Court addressed, and which is determinative of this appeal, is whether or not the appellant had proved that he had possession of them for a lawful purpose. The Crown Court held that he had not. It made an undisputed finding that his purpose was commercial: to sell the articles at a profit. It observed, in my view correctly, that selling articles for a profit "is of course not inherently unlawful".[6]The prosecution submitted that the defence of lawful purpose was to be narrowly construed to protect "only those involved in the manufacture, transport and provision of uniforms to the Police Service and others who are lawfully authorised to wear or posses such uniforms". Mr Penny QC, who appears for the respondent today (but did not appear in the court below), no longer supports that way of putting the prosecution case as to what the appellant must prove.[7]The Crown Court's finding and ruling were set out in writing as follows:
"It is inescapable that the appellant has obtained these articles to sell on to any member of the public without restriction, although the unauthorised wearing of them is potentially criminal under section 90(2). Although the appellant may wish and hope to sell these articles only to honest and sensible people who would neither misuse them nor run the risk of confusing members of the public, the nature of his business is such that he could not control or monitor the purchases from his business to eliminate or minimise the risk that purchasers might misuse the uniforms to deceive and thereby commit offences under subsections (1) and (2) of section 90 or for other improper purposes. Moreover, the appellant has not established that he takes steps to reduce the risk by checking and warning his customers. Accordingly, the appellant has not established that at the relevant time he had obtained possession of these articles for a lawful purpose."
[8]The case correctly distils the question of law from those findings as follows:
"Was the court correct to read into the Police Act 1996, section 90(3), a requirement on the appellant to have made checks on the purchasers of the articles of police uniform in order to establish his lawful purpose of supplying them commercially?"
[9]Mr Penny submits that the Crown Court reached the right conclusion for essentially the right reasons. He points out that subsections (1) and (2) of section 90 set the context for the interpretation of subsection (3). Section 90(1) makes it an offence to impersonate a member of the Police Force with intent to deceive. Section 90(2) makes it an offence to wear any article of police uniform "where it gives him an appearance so nearly resembling that of a member of the Police Force as to be calculated to deceive". Section 90(3) is intended to reinforce those prohibitions by prohibiting possession of articles of police uniform, except by those who can prove a lawful purpose for their possession.[10]The prosecution submitted below, and Mr Penny submits here, that there is a strong analogy with a person who has possession of explosives or an offensive weapon: in the case of explosives, that he had a specific positive purpose which was lawful. He cites R v Riding [2009] EWCA Crim 892 in support of that proposition. In that case an unusual man, it seems, had decided to make a pipe bomb simply out of curiosity. The trial judge held that that could not be a lawful object. The issue for the Court of Appeal Criminal Division was whether or not that ruling was correct. At paragraph 10 Hughes LJ (then the Vice President) giving the judgment of the court said as follows:
"The short point in the case is whether it is correct that a lawful object is simply the absence of criminal purpose. We are satisfied that that is not what the Act says. The Act requires that if you are found in possession or have made an explosive substance in circumstances in which there is a reasonable suspicion that there is no lawful object, it is an offence unless there was in fact some affirmative object which was lawful. That is, as it seems to us, an entirely unsurprising provision for a statute to make, given the enormous danger of explosive substances generally."
It is not therefore, submits Mr Penny, enough for the appellant to prove that he did not have the items in his possession for an unlawful purpose; he must prove positively what his purpose was. Mr Penny supports the Crown Court's decision that what the appellant had proved here was inadequate to discharge the legal burden on him of proving lawful purpose.[11]Mr Hill submits, without opposition from Mr Penny, that the original way in which the prosecution put its case is too narrow. I therefore need say no more about that.[12]For my part, I accept that the lawful purpose or purposes for which articles of police uniform are obtained and possessed must be a positive purpose. I do not, however, accept that that purpose must be narrowly construed. Articles of police uniform can lawfully be possessed for a wide variety of purposes, other than the performance of police duty. The following is a non-exhaustive list: theatrical, film or TV performance by actors (amateur and professional) in the role of a police officer; wearing at fancy dress parties and similar events; collection and display in a museum; private collection for personal enjoyment; even nowadays the retention by a former police officer of his uniform and other items as a memento of his service (formerly prohibited by section 16 of the Metropolitan Police Act 1839, but now not so); possession by a person supplying an article of police uniform to such end, for example, by a theatrical costumier would also clearly be lawful.[13]The possession of articles of police uniform for the purpose of supply, whether by way of sale or otherwise, to an end user who intends to use them for an unlawful purpose, including, for example, impersonating a police officer with intent to deceive, would, on the face of it, be an unlawful purpose. Because this is a criminal offence, there must be an element of mens rea. Possession for the purpose of sale to someone who, unknown to the seller, had such an unlawful purpose would not be, unless as the Crown Court found, he was obliged to carry out a series of checks and issue warnings. The burden of proving the absence of necessary mens rea is, of course, on him. One formulation from which Mr Penny does not dissent – and Mr Hill certainly does not – is that if the seller proves that he neither knew nor had reason to believe that the end user to whom he was selling had an unlawful purpose in mind, then, subject to the requirement to carry out checks, the burden of proving the absence of mens rea would be discharged.[14]The question posed by the facts of this case is stark. It can be simply stated: does a person who possesses articles of police uniform for the sole purpose of selling them on to others at a profit do so lawfully?[15]Subject to the Crown Court's view about the need to warn and check, the Crown Court gave an answer to that which was in favour of the appellant when it observed:
"Selling articles for a profit is of course not inherently unlawful, even if those articles could be misused for criminal purposes."
That was a proposition that was repeated in the Stated Case: 16. "In dismissing the appeal the court accepted that possession of the articles for commercial supply could amount to a lawful purpose." 17. "Although the appellant may wish and hope to sell these articles only to honest and sensible people who would neither misuse them nor run the risk of confusing members of the public ..." The Crown Court has accepted that the appellant had that hope and wish, and therefore by necessary implication has accepted that he did not have an unlawful mens rea and had proved that he did not have an unlawful mens rea.

That was a proposition that was repeated in the Stated Case:

[16]The Crown Court's reason for finding that the sale was unlawful is contained in what it set out immediately afterwards:
"The nature of his business is such that he could not control or monitor the purchases from his business to eliminate or minimise the risk that purchasers might misuse the uniforms to deceive and thereby commit offences under subsections (1) and (2) of section 90 or for other improper purposes. Moreover, the appellant has not established that he takes steps to reduce the risk by checking and warning his customers."
The Crown Court's finding, in other words is that a seller in the ordinary course of a business for profit must prove that he has taken steps to satisfy himself that his customers are buying the items from him for a lawful purpose. Nothing to that effect is found in the language of section 90(3). There are problems with an approach not founded in the language of a statute of that kind. For example, what is the seller required to do "to reduce the risk"? Warning customers, as the Crown Court thought was incumbent on the appellant, is unlikely in the real world to put off those with an illicit purpose from buying items of police uniform. Armed robbers, who intended to use them for illicit purposes, could simply pretend that they wanted them for a fancy dress party. What could the seller do to satisfy himself that their stated intention was their true intention? What else could the appellant do (in the language of the Crown Court) to "check" his customers?[17]These seem, to me at least, to be matters that require detailed regulation – detailed regulation which can only be provided by Parliament. There is nothing to this effect in the language of section 90(3). I would hold that a seller in the ordinary course of business, who proves that he did not know and had no reason to believe that the buyer from him had an illicit purpose, has acted lawfully and has succeeded in establishing the statutory defence. On the findings of the Crown Court that is precisely what this appellant did. I would therefore be in favour of allowing this appeal. LORD JUSTICE BEATSON: I agree.