Wang, R. v

At the Chelmsford Crown Court on 28 August 2002 before His Honour Judge Pearson this appellant was convicted on the judge’s direction of two offences of being in possession of an article with a blade or point contrary to s.139(1) of the Criminal Justice Act 1988. On 4 October 2002 he was conditionally discharged for a period of 12 months.

He now appeals against conviction by leave of the single judge.

The case is an unusual one. The appellant is a Chinese asylum seeker. On 27 February 2002 the police were called to a disturbance at Clacton Railway Station, where they came upon the appellant who was detaining another man. He was also holding a curved sword, which was, however, still in its sheath. The appellant said that the other man had stolen his bag. Inside the bag there was a knife, called a “willow leaf” knife, which was indistinguishable in shape from a Ghurkha kukri knife. The sword was to be the subject of count 1 in the indictment, and the knife that of count 2. The appellant was arrested and interviewed with the assistance of a Mandarin interpreter. He told the police that his bag had been stolen at the railway station, that he had located the thief and the bag on a train, and that the sword had been covered with clothes inside the bag, but the thief had been through the bag and uncovered it. He said that he was trying to detain the thief and at the same time hold on to the sword, to stop the thief getting hold of it when the police arrived. At no time was the sword out of its sheath. The appellant said that he always carried the sword with him and used it to practise martial arts at deserted places. He had bought the knife at a market because it looked antique.

When he gave evidence before the jury the appellant did not dispute his possession of the two bladed items. He claimed to be a practitioner of the martial art of Shaolin, which involved or required practice with such weapons: indeed a Shaolin follower had to become expert in the use of 18 weapons. It was asserted on his behalf that his need to practise with the weapons constituted “good reason” for his being in possession of them, within the meaning of s.139(4) of the 1988 Act. (We shall set out the relevant statutory provisions in due course.) The appellant was moreover a Buddhist, and Shaolin was a branch of Buddhism; so that the appellant (it was contended) enjoyed a further defence, to both counts, arising under s.139(5)(b). The appellant told the jury that on the occasion in question he had been going to see his immigration solicitor in London; he did not think it safe to leave the two weapons at his home, so he had taken them with him.

In light of the issue joined in the appeal it is important to be as clear as possible about what the appellant actually said in evidence relating to his practice with the weapons as a Shaolin follower. When he was interviewed by the police he said nothing about it at all. We do not have a transcript of his testimony before the jury. We felt able to proceed without it, however, having regard to the references to what he said which appear in a ruling made by the trial judge which, as we shall shortly explain, is the genesis of this appeal, and also because of the assistance given to us by Mr Shaw for the appellant who was trial counsel and was able to refer us to his note of his client’s evidence. We describe these materials below.

At the end of the defence case, on 28 August 2002, the judge sent the jury out and indicated to counsel that he could see no defence to either count arising on the appellant’s evidence. After hearing argument the judge maintained his earlier view and directed the jury to convict on both counts, explaining that the matters raised by the appellant were no defence. The essence of the appeal to this court is that the judge was wrong to do so; the appellant was entitled to a verdict from the jury, and had they accepted his evidence or thought it might be true, then by force of 139(4) and/or (5)(b) he should have been acquitted.

It is convenient at this stage to set out the relevant statutory provisions. S.139 of the Criminal Justice Act 1988 in part provides:

“(1)

Subject to subsections (4) and (5) below, any person who has an article which has a blade or is sharply pointed with him in a public place shall be guilty of an offence.

…

(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.

(5)

Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him… (b) for religious reasons.”

In view of the course taken by the judge it is perhaps little surprise, and it is certainly no criticism, that much energy and paper has been expended on the appellant’s behalf in marshalling argument and learning in order to demonstrate that the power of a trial judge to direct a jury to convict is, on constitutional grounds, very severely circumscribed. Reference has been made to authority such as Gent 89 CAR 247, Hill & Hall 89 CAR 74, Stonehouse [1978] AC 55 and Wright [1992] Crim LR 596. There is no doubt but that such a power is much constrained. In her skeleton argument for the Crown, however, Miss Davey, who appeared in the Crown Court, submits that it is necessary to distinguish between two classes of case: (1) where it is said that on the evidence an issue as respects which the burden of proof lies on the prosecution could only rationally be decided against the defendant, and (2) where it is said that the defendant has failed to discharge an evidential burden which lies on him. Miss Davey submits, in our judgment correctly, that the decision of this court in Gent shows that if it is ever permissible for the judge to direct the jury to convict in the first class of case, it would only arise in exceptional circumstances, and may be confined to the situation in which there had been something like a formal admission of guilt. However a different approach has been taken in the second type of case. In Hill & Hall the judge directed the jury to convict the defendants of possession of an article with intent to damage property (contrary to s.3 of the Criminal Damage Act 1971) because the defendants had failed to discharge an evidential burden which lay on them in relation to the defence of reasonable excuse. The convictions which followed were upheld in this court.

Bown [2003] EWCA Crim 1989 was a case, like the present, in which the appellant was prosecuted for an offence under s.139(1) of the Criminal Justice Act 1988. He had been found in possession of a lock knife. His defence was good reason under s.139(4). His “good reason” was that he had the knife on him to satisfy his propensity to harm himself. He did not give evidence at his trial. The Recorder ruled that it was for him to determine whether the reason advanced was capable of amounting to a good reason within s.139(4), and held that in this case it did not. Accordingly he directed the jury to convict. Keene LJ, delivering the judgment of this court, stated:

“16.

… there are some limits as a matter of law as to what can amount to a good reason under s.139(4). It is for the judge to determine as a matter of law whether the explanation is capable of being seen by a jury as a good reason. If it is, then it is indeed for the jury to decide whether in fact in all the circumstances it did amount to a good reason.

…

17.

… As a matter of approach… to his role as compared to the jury’s role, the Recorder in the present case in our judgment did not err…

Keene LJ proceeded to emphasise (paragraph 18) that the trial judge “should be slow to rule that the particular facts cannot as a matter of law fall within the scope of a ‘good reason’. The words are very general in nature.” He went on to consider whether on the facts the Recorder was right to rule that the defence put forward was incapable of amounting to good reason; but at length the court concluded (paragraph 25) that it was in the event unnecessary to decide whether self harm might amount to a good reason, because it considered (paragraph 26) that “the crucial factor [was] the absence of evidence from the defendant… There was simply insufficient evidence to establish the defence to the degree of particularity which was requisite.” And so the appeal was dismissed.

Here, of course, the appellant did give evidence. Following Bown (and in line with Hill & Hall) the judge was entitled to consider whether the appellant’s account, if it were accepted, disclosed material which was capable of being accepted by the jury as showing that he had the sword and knife with him for religious reasons (or for good reason). The question for this court is whether he was right to hold that it did not.

While we accept that we should be very slow to rule that particular facts, which raise at least some issue as to religious motivation, are in law incapable of furnishing a defence under s.139(5)(b), there are some features of the statutory provision which should in our judgment be clearly stated. Mr Abell, who was instructed to conduct this appeal for the Crown submitted that s.139)(5)(b) should be narrowly construed. We would not necessarily adopt that language, since in our view the two considerations which we are about to emphasise involve no tension with the ordinary meaning of the words the legislature has used. They are as follows. First, the religious reason (or reasons) proffered, assuming it can reasonably be regarded as a religious reason, must in our judgment constitute at least the predominant, if not the only, motivation for the accused’s being in possession of the bladed instrument in a public place, if the s.139(5) defence is to be made out. Secondly, (and in truth this flows from the first consideration) it must be shown that the religious reason specifically motivated the accused to have the article with him on the particular occasion in question. As Keene LJ said in Bown:

“25.

… [I]t cannot… be a good reason in our judgment to have a knife with you in public one evening because you may want to self-harm at some time the next week.”

We consider that these limiting factors are necessary to preserve the force of the offence created by s.139, whose efficacy is very greatly in the public interest.

We turn then to consider whether on the material before him the judge was right to direct the jury that the appellant’s account was not in law capable of furnishing a defence under s.139(5)(b). What was the appellant’s evidence as to the purpose for which he had the weapons in his possession, undoubtedly in a public place, on his trip to see the solicitor? As we have indicated, Mr Shaw referred us to his note of his client’s evidence. He told us that the appellant made it plain that he was on his way to London intending to practise with the weapons after he had seen his solicitor. But counsel’s note did not go so far. We do not of course suggest that Mr Shaw was seeking to put his case too high before us; but this is what he had recorded:

“I was going with my friend to see the Home Office lawyer in Romford. I always went with the bag and stopped at remote and uninhabited places to practise my Shaolin.”

The transcript of the hearing before the judge on 28August 2002 contains these following passages. First, there is Mr Shaw’s submission at 4C – D:

“The defendant’s evidence is plain; that Shaolin and Buddhism are inextricably linked, that members help society to protect people, to behave and keep the spirit. It teaches love without denominations or limitations. The basic belief of the Buddhist people teaching Shaolin, he said.”

Then the judge said this at 5A – C:

“… what this defendant has said is simply this: that whilst Shaolin may be a part of Buddhism and certainly it can have beneficial effects in terms of protecting people and loving all people, nevertheless the martial arts themselves and the weapons in connection therewith are not important to the faith as such. It is the personality and the faith itself which are crucial.”

Then at 5E – F:

“It seems to me that to say that he carries them in a bag – and what we are interested in is why did he have them in a public place, namely Clacton Railway Station, on the 27^th? Put quite simply, to say that he had nowhere else to put them and he might want to practise with them cannot amount, in my judgment, to a defence of law.”

8E – F (now addressing the jury, who had returned to court):

“What this defendant has told you, put quite simply, is that he is a Buddhist; that he is a follower of traditional Chinese martial arts, called Shaolin; that Shaolin himself was a Buddhist and that Shaolin has become part of, as it were, the Buddhist religion, but it is clearly an adjunct and not central to Buddhism because he said himself: ‘Martial arts themselves are not important. What is important is the personality and the faith.’”

Lastly 9B – D (again to the jury):

“On the 27^th, he was going to London to see a solicitor. What possible reason could one have for having those two blades for that purpose? The reason he gives is simply this: ‘There was no-one at home to look after the knives. The bag was the best place for them. I wanted to practise with them’, and you will recall his evidence about wanting to become the leading figure in martial arts and, perhaps, even to become a film star.”

After careful consideration we have come to the conclusion that on this material the judge was justified in directing the jury to convict. The appellant’s evidence was not capable of discharging the burden, which lay on him, of showing that he had the weapons with him for good reason (s.139(4) or for religious reasons (s.139(5)(b)). It is very far from clear that he had any settled intention to practise with them on the day in question; even if he did, there was on his own evidence no religious requirement that he do so, and in any event that was plainly not the predominant or only reason for his possessing them that day; the fact that “there was no one at home to look after [them]” cannot, in our judgment, be a good reason for taking these weapons into public places. To borrow the words of Keene LJ in Bown: “[t]here was simply insufficient evidence to establish the defence to the degree of particularity which was requisite”.

The facts here are unusual. Nothing we have said is intended to encourage trial judges to direct convictions, even where the material issue is one on which the defendant carries the burden, unless it is plain beyond sensible argument that the material before the jury could not in law suffice to discharge the burden.

There was some discussion at the Bar as to the impact of Article 9 of the European Convention on Human Rights. Assuming, without deciding, that Article 9 might require the State authorities to allow persons to carry bladed instruments in public in pursuit of their religious beliefs (at least in some circumstances), such a right is guaranteed by s.139(5)(b) itself; there is no need for the subvention of Strasbourg authority.