Jolie v R

On 11^th February 2003 in the Crown Court at Southwark this appellant was convicted of having with him in a public place without good reason an article with a blade or point, namely a knife, contrary to section 139(1) of the Criminal Justice Act 1988. The ground of appeal is that the trial judge misdirected the jury as to the law of “knowingly has with him” and the burden and standard of proof of the same, as a result of which the conviction is unsafe. In order to understand that ground of appeal it is necessary to set out the facts.

At about 12.30 a.m. on Saturday 24^th August 2002 two police officers in a patrol car stopped a Vauxhall Astra motor car which was being driven by the appellant in Morning Lane, East London. The car belonged to Lorraine Samuels, a girl friend of the appellant’s brother, and it was stopped by the police officers because of the speed at which it was travelling.

Having caused the appellant’s car to stop ahead of him PC Linton, the driver of the police car, remained in his seat with the head lights of his vehicle illuminated, and his passenger PC Taiwo got out and walked along the pavement to the nearside door of the appellant’s vehicle. The officers could see that the appellant was leaning forward and apparently reaching down under his seat. He was told to get out, and got out of the passenger door. He was asked his name and at first gave a false name. PC Linton, having got out of the police car could see a pair of scissors lying on the driver’s seat in the Astra, and he asked the appellant “what were you doing when you stopped, you appeared to be fidgeting and trying to conceal something under your seat?” The appellant replied “No, I was just turning the engine off.” PC Taiwo asked what he meant, and the appellant said “There are no keys and I had to use something else.” A second police car then attended, the appellant gave his correct name, and the Astra was searched. The scissors were recovered, and in addition a black handled kitchen knife was found under the driver’s seat. PC Linton said to the appellant “what do you know about these?” The appellant replied “The scissors are what I used to start the car, I don’t know about the knife.” The officer said “The knife was found under your seat, and when you first stopped you were fidgeting as if you were trying to hide something under your seat”. The appellant then said “I will have the scissors, but not the knife”. He was arrested and cautioned and said “I’ll have the scissors, as I wanted to start the car.”

The appellant was then taken to Stoke Newington Police Station and some hours later at 11.24 a.m. he was interviewed in the presence of a solicitor. He said –

“A couple of days ago the car key was lost for the car, so the barrel for the ignition was broken and you need something pointed but square to turn it on and off. The knife had been used as a form of turning the ignition on and off, so had the scissors. At the time I didn’t have the knife, I had the scissors. ….”

A little later he was asked what the knife in the car was for, and he said –

“That’s for the same thing. We couldn’t find the knife, so when we stopped at the hairdressers, we went and saw the woman who works in the hairdressers and said ‘have you got a pair of scissors we can borrow so we can start the car?’ because we didn’t find the knife.”

He accepted that the knife was his, and his account in substance was that initially when the keys were mislaid his knife was used to start the car, it was then mislaid, and the scissors were then used instead.

At trial the appellant gave evidence and said that the car key had been lost on the previous Saturday (not, as he had said at the interview, “a couple of days ago”). His friend had helped him to recover the car by taking the barrel out with the appellant’s knife. The car owner had been told. He had not driven the car during the week, but it had been driven by the owner and by his brother, using the knife on each occasion. Then, when they were at a hairdressers, the knife could not be found. He and his brother searched the car without success, so they borrowed some scissors from the hairdresser to replace the knife, and it was those scissors which he used to start the car for the journey during the course of which he was stopped. When the knife was found by the police officers and produced to him he realised what it was. He said –

“O.K., its my knife. I did not try to conceal the knife. I did not know it was in the car.”

In cross-examination he accepted that he did not tell the officers at the scene why the knife was in the car. As the Recorder pointed out, if, contrary to the evidence of the police officers, he did accept at the scene that the knife was his, it is surprising that he was not asked why he had it, and it was common ground that the question was not asked.

We turn now to the law. Section 139(1) of the criminal Justice Act 1988 provides that “any person who has an article to which this section applies with him in a public place shall be guilty of an offence”. Section 139(2) provides that the section “applies to any article which has a blade or is sharply pointed, except a folding pocket knife.” It therefore clearly applies to a kitchen knife, but section 139 (4) provides that it shall be a defence for a person charged with an offence under the section to prove that he had good reason (or lawful authority) for having the article with him in a public place.

On the facts of this case there were therefore two issues for the jury to consider, and in relation to which clear directions were required, namely –

(1)

when the appellant was driving the car in Morning Lane on 24^th August 2002 was he in possession of the knife? Did he have it with him in that public place?

(2)

If so, had he, on the balance of probabilities, demonstrated that he had a good reason for having the knife with him at that time and in that place?

As to possession the law was helpfully reviewed by May LJ in McCalla [1988] 87 CR App R 372. In that case a cosh had been found in the glove compartment of the appellant’s car. He said he had picked it up a month earlier, had put it away and had forgotten about it. At 376 May LJ referred to the earlier decision of Cugullere [1961] 45 Cr App R 108 where Salmon J had said that the statutory words has with him in any public place must mean “knowingly has with him in any public place”. Otherwise an innocent person could be liable if an article was put in his pocket without his knowledge. Salmon J continued –

“It is therefore extremely important in any case under this section for the judge to give a careful direction to the jury on the issue of possession. The first thing the jury have to be satisfied about, and it is always a question for the jury, is whether the accused person knowingly had with him the alleged offensive weapon.”

The decision in Cugullere left room for doubt as to what degree of knowledge was required. Did the prosecution have to prove that the defendant currently knew where the offending article was? What if he may have forgotten where he had put it? As to that, in Buswell [1972] 1 WLR 64, a case concerned with unauthorised possession of drugs, Phillimore LJ said at 67 C –

“If you have got it in your custody and you put it in some safe place and then forget that you have got it, and discover a year or two later, when you happen to look into that particular receptacle that it is still there, it seems to this court idle to suggest that during those two years it has not been in your possession. It has been there under your hand and control.”

Buswell was overlooked in a subsequent decision to which we need not refer, but it was followed in Martindale [1986] 84 Cr App R 31 where Lord Lane CJ said at 33 –

“Possession does not depend upon the alleged possessor’s powers of memory. Nor does possession come and go as memory revives or fails. If it were to do so, a man with a poor memory would be acquitted, he with a good memory would be convicted.”

But it is important to note that in all three cases – Buswell, Martindale and McCalla it was clear that the offending article was under the control of the defendant when it was placed where it was later found. There was no such clarity in the present case. When giving evidence at the trial the appellant said –

“I did not drive the car in between the two Saturdays but had been in the car. It had been driven by Lorraine or my brother. The knife was used to drive it. The knife then got lost. We had started the car with the knife to get to the hairdressers, but then we could not find the knife and then went back to the hairdressers and got the scissors. My brother searched the driver’s side and back and I checked the passenger’s side and couldn’t find it. The car was started with the scissors.”

The visit to the hairdressers was, it seems, prior to the night in question, and if the appellant’s account was accepted it would seem as though the knife was probably not under his control when it was mislaid.

Plainly, as it seems to us, this was a case where it was essential for there to be a discussion between the judge and counsel, in the absence of the jury prior to final submissions, as to how to deal with the issue of possession and the other legal issues which arose in the case. We have been told that there was such a discussion, but we are not sure what it achieved. It seems to us that had it been fruitful the conclusion in relation to possession might well have been that the judge should direct the jury only to find possession proved if satisfied that the appellant either –

(1)

was aware of the presence of the knife in the vehicle when making the journey during the course of which he was stopped, which might well account for what the police officers said they saw of his apparent attempt to hide something, or –

(2)

was responsible for putting the knife where it was mislaid.

It was important for the jury to be required to deal first with possession because it was only if possession was established that it would be necessary for them to consider whether the appellant had demonstrated on a balance of probabilities that he had a good reason for having the knife with him in the car. If he knew that he had it on the night when he was stopped the jury might well conclude that the prosecution was right in its submission that the scissors were used to start the car but the knife was a weapon carried for other purposes. If he was only possessed of it in law because he was the person responsible for putting it where it was mislaid, had it been brought into the car simply to start and stop the engine? If so then, as it seems to us, it ought to be open to the jury to find that the statutory defence set out in section 139(4) of the 1988 Act was established. At the time when McCalla was decided the relevant statutory words were “reasonable excuse” and at 379 May LJ said –

“We are quite satisfied that to have forgotten that one has an offensive weapon in the car that one is driving is not in itself a reasonable excuse under the Act. But when such forgetfulness is coupled with particular circumstances relating to the original acquisition of the article the combination of the original acquisition and the subsequent forgetfulness of possessing it may, given sufficient facts, be a reasonable excuse for having the offensive weapon with one.”

We note that in Brutus v Cozens [1973] AC 854 the House of Lords considered the words “insulting words or behaviour” in section 5 of the Public Order Act 1936 as amended, and refused to accept that they needed any form of legal interpretation before being applied by the fact finding body to the circumstances of the particular case. Lord Reid said at 861C that “the meaning of an ordinary word of the English language is not a question of law”, and Lord Morris said at 863 H –

“What the Divisional Court have done is to lay down a definition of the words ‘insulting behaviour’ and then to say that the appellants behaviour came within the definition. But the Act contains no such definition, and indeed no words of definition are needed. The words of the section are clear and they convey of themselves a meaning which the ordinary citizen can well understand. The suggested definition would enlarge what Parliament has enacted and it would do this in relation to a criminal offence. ”

The same could be said of any restricted interpretation of section 139(4) of the 1988 Act. Returning to Brutus v Cozens, at 865 G Viscount Dilhorne said –

“The Act does not define the meaning to be given to the word ‘insulting’ and the cases cited in this House, the Divisional Court and before the magistrates do not say or suggest that it should be given any special meaning. Unless the context otherwise requires, words in a statute have to be given their ordinary natural meaning and there is in this Act, in my opinion, nothing to indicate or suggest that the word ‘insulting’ should be given any other than its ordinary natural meaning.”

However, in DPP v Gregson [1993] 96 Cr App R 240, an appeal to the Divisional Court by way of case stated, a knife fell from the defendant’s jeans during the course of a police search. McCowan LJ cited McCalla, noted the change in the statutory wording, and at 243 continued –

“In my judgment (counsel) is right to say that it is important to concentrate on the time in respect of which the defendant is charged. Six days earlier, no doubt this man had the knife on him for a good reason, because the justices found that it was a knife that he used in his work and would have had with him at his work and might well have put into his pocket at work six days earlier. But did he have it with him for a good reason at the time of his arrest? Having it for work reasons six days earlier cannot, in my judgment, be a good reason for having it on him six days later when not at work. The question, therefore, it seems to me, boils down to whether forgetfulness at the relevant time was a good reason. It does appear that the justices found that he had forgotten that he had it on him. I am bound to say that I am surprised at this finding, having regard to their finding of fact that the knife fell not from his jacket pocket where the knife, he said, had been put by him at the time of his work, but from his jeans, and the further finding that when that happened he offered no specific reason or excuse for having it with him. However, they did in fact find, as I understand it, that they believed that he had forgotten that he had the knife with him. Was that a good reason?

In my judgment, forgetfulness may be an explanation. It cannot be a good reason. I would therefore answer the second question, by saying that the fact that a defendant has forgotten that he has an article to which section 139 applies cannot constitute a defence of good reason within section 139(4) of the Act.”

We have set out the whole of that passage to demonstrate the reasoning, which we do not find entirely persuasive. If the defendant had a good reason for having the knife on him six days earlier, when did that good reason cease? Did it cease as soon as he returned home from work? What if he called at a public house on the way? What was it about the new statutory wording which prevented the tribunal of fact from considering not only the alleged forgetfulness but also the reason given for the knife being where it was, and the time involved, when deciding whether or not the defendant had established the statutory defence? If Gregson was rightly decided, it would seem to follow that a parent who, having bought a kitchen knife, put it in the glove compartment of a car out of reach of a child, and then forgot to retrieve it when he arrived home would be committing an offence next time he drove the vehicle on a public road. That does not seem to us to be what Parliament intended.

Gregson has been considered in this court. In Manning 22^nd October 1997 the defendant had been in possession of a knife which he said that he had used to fix his car radiator and then put in his pocket. As to the statutory defence the trial judge had directed the jury that “just forgetfulness on its own was no reason” and Henry LJ in this court said at 4G of the transcript –

“We agree with that statement of law on these facts. When you are found in a public place with a prohibited knife on your person it is no defence to say ‘I forgot I had it’. As McCowan LJ said in DPP v Gregson at 243 :

‘In my judgment forgetfulness may be an explanation. It cannot be a good reason’

He was speaking there, as we are in this case, in context of the facts before him. As a general rule, and in this case, but not invariably, that proposition stands true: it all depends on the facts of the case.

But the judge then went on to say, perhaps charitably to the defendant in all the circumstances, that forgetfulness combined with another reason might afford a good reason. He went on to say that, if he had the knife on him for some further work, it would be a defence to say ‘I’d forgotten it was there but it was there for further work on the car.’ He therefore left both defences to the jury. If anything, in so doing he was being too favourable to the defendant, particularly, it may be thought, with reference to the good reason point.”

Perhaps surprisingly the third ground of appeal in Manning was that the trial judge had failed to give an adequate direction to the jury as to what could or could not constitute a good reason, and had wrongly applied Gregson’s case. The first two grounds of appeal related to the words in section 139(5)(a) “for use at work”, and having referred to Brutus v Cozens Henry LJ rejected the suggestion that the jury required guidance as to what those words meant. At 9G he continued –

“The third ground of appeal relates to the alleged failure to give adequate directions to the jury in respect of what could or could not constitute good reason. Similar considerations apply to that as to the phrase ‘for use at work’ and so that ground of appeal fails on similar grounds. The learned judge did not, in our judgment, wrongly apply the authority of DPP v Gregson. When he said ‘that just forgetfulness on its own was no reason’ that was an entirely right direction of law on the facts of this case.”

So, as it seems to us, Manning is authority for the proposition that the words “good reason” do not require any judicial gloss. As the trial judge had said, in the direction which was approved, forgetfulness alone would not amount to a good reason, but forgetfulness combined with another reason might afford a good reason (as in the parent example given above). Once the facts are known the tribunal of fact can safely be left to decide for itself whether the statutory defence, which is formulated in simple words, has been made out. As the late Professor Smith said of the statutory defence in his note on Manning [1998] CLR 199 “what could be more ordinary than that phrase?”

In Glidewell [1999] 163 JP 557 the defendant was a mini cab driver who had offensive weapons in his vehicle when he was stopped. He said they had been left by a passenger a few days earlier, and that he had forgotten to remove them. When charged with an offence contrary to section 1 of the Prevention of Crimes Act 1953 he contended that he had “reasonable excuse” for having the weapons with him in a public place. The trial judge directed the jury that forgetfulness is not an excuse, and this court, having referred to McCalla, found that to be a misdirection. At 559 Rose LJ said –

“Depending upon the circumstances of the particular case, forgetfulness may be relevant to whether or not a defendant has a reasonable excuse for possession of an offensive weapon. The circumstances of the present case, including the fact that it was not the defendant who had introduced the weapons into his car, the fact that the weapons had been in his possession for a comparative short period of time and the fact that he had given evidence as to how busy he was on the relevant night, which bear on the question of his forgetfulness, all as it seems to us, made the relevance of the forgetfulness to the question of whether his excuse of possession was reasonable a matter for the jury.”

Of course we recognise that in Glidewell, as in McCalla, the statutory words were not precisely the same as those with which we are concerned in this case, but the distinction does not seem to us to be significant.

In Hargreaves 30^th July 1999 a cyclist stopped by the police had a knife in an inside pocket. He claimed to have taken it from home and then forgotten about it. He was advised by his counsel that for the purposes of section 139(4) of the 1988 Act neither forgetfulness nor the fact that he was transporting the knife from one private property to another could amount to a good reason, but he was not prepared to accept that advice and dispensed with the services of his lawyers. In this court Otton LJ observed that the only possible defence which could have been advanced was based on forgetfulness, and referred to Glidewell and Gregson, saying that the law as expounded by McCowan LJ in Gregson is clear and unequivocal. Otton LJ continued –

“Although we are not bound by it, we have no reason to doubt its accuracy. It fits entirely with the circumstances of this particular case and in our opinion the appellant did not have a defence of ‘good reason’. Accordingly the advice which was given before he was arraigned by counsel was the correct advice.”

There was no apparent reference to Manning, and it seems to us that on its particular facts Hargreaves was rightly decided because, as everyone agrees, forgetfulness on its own cannot constitute a good defence, or a reasonable excuse (see May LJ in McCalla supra). Accordingly in our judgment where a defendant does seek to rely on section 139(4) the fact finding tribunal should be left free to consider whether in the circumstances the defendant has shown that he had a good reason for having the article with him in a public place. If forgetfulness is relied upon it does need to be said that alone it cannot constitute a good reason, but otherwise no legal direction is required.

We turn now to the directions actually given. The Recorder began this part of her summing up by saying –

“The issue in this case is, whether or not he had it with him, and if you are satisfied – as I will go on to explain what it is you need to be satisfied of – so you are sure that he had the knife with him, then you would need to go on to consider whether that was without good reason.”

She continued –

“Has with him in law means knowingly has with him. It does not simply mean physical custody or control. Once a person has something knowingly, he continues to have it until he does something to rid himself of it. Merely forgetting that he has it is not enough to prevent him from having it. For instance, if a person puts an item with a blade into a bag or a handbag and then does not remove it and forgets that item is in the bag or handbag, for the purposes of the law, he still has it with him when he carries the bag or handbag around.”

A little later she said –

“So you would have to be satisfied so that you are sure that the defendant knowingly put the article in the car. If you are satisfied that he had it with him in that way, then you would go on to consider whether he had good reason. And good reason, members of the jury, is a matter for you to judge, but as I say, forgetfulness can never be good reason.”

That is where the Recorder first fell into error. She had not previously said that forgetfulness can never be a good reason. She had rightly said that forgetfulness does not bring possession to an end, and in fact, as we have indicated, we consider that forgetfulness can be part of a good reason. Having summarised the case on each side the Recorder continued –

“So the issues for you to determine in the context of this case are as follows: 1. Did the defendant knowingly put the knife in the car? You may think that in the first analysis the answer to that question is yes, because when the keys were first lost he put the knife in the car, he knew that it was there. It was used for several days to start the car. 2. This the important matter; did the knife get lost two days before his arrest? If it did – and this is a matter for you on the facts to judge – are you satisfied so you are sure that the knife was lost two days before.”

Here again there are problems. The Recorder’s formulation of the first issue and her suggested resolution are misleading, because it did not matter what happened at first when the car keys were lost. And the formulation of the second issue suggests that the appellant had to prove to a criminal standard that the knife was lost. A few sentences later the Recorder got the burden of proof right, but without reference to what she had already said. She said –

“This, members of the jury, is not a case of forgetting because the defendant is not saying to you that the knife had been there on the first day and then I forgot it was in the car and I had borrowed the scissors, this is a case which you need to decide, whether it is more likely than not that the knife was lost, because if it was, the defendant could not have known about it when he was arrested. But members of the jury, more importantly, it is not for him to prove and satisfy you so you are sure that the knife was lost, it is for the prosecution to satisfy you that the knife was not lost.”

That seems to us to be less than clear, and on the following page the Recorder said –

“So, members of the jury, that is a matter for you to decide then, whether or not you are satisfied so you are sure that what he says to you about the reason for the knife having been in the car in the first place is one, that you can accept as being good reason. If you do not, the verdict would have to be guilty.”

That again is wrong, because of the burden of proof which it imposes on the defendant.

In our judgment all that was required in this case was for the jury to be assisted in relation to possession as indicated in paragraph 13 above, and then told that if satisfied that the defendant did have the knife with him they must then decide whether, in all the circumstances, he had shown on a balance of probabilities that he had it for a good reason, bearing in the mind that forgetfulness alone would not suffice. Unfortunately in the summing up the legal issues were not clarified in that way. The direction as to the law was muddled, and at times wrong. As the jury did not have the assistance it plainly required we found ourselves unable to regard the conviction as safe. That is why on 8^th May, after hearing submissions, we allowed the appeal. The Crown did not seek a re-hearing, and we therefore ordered that the appellant be discharged.