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The provisions of section 71 of the Criminal Justice Act 2003 apply to these proceedings. By virtue of those provisions, no publication may include a report of these proceedings, save for the specified basic facts, until the conclusion of a trial, unless the court orders that the provisions are not to apply. Since the application involves an issue of law, the restrictions will be lifted so that the decision may be reported with anonymity afforded to

This is a prosecution appeal under section 58 of the Criminal Justice Act 2003 from a ruling made by His Honour Judge Ader on 12 December 2018 in the Wood Green Crown Court. The ruling concerned count 3 of an indictment, the respondent (the defendant) having pleaded guilty to count 1, possession of a class B drug contrary to section 5(2) of the Misuse of Drugs Act 1971 and count 2, obstructing a constable in the exercise of his powers, contrary to section 23(4)(a) of the 1971 Act.

Count 3 charged an offence of having an article with a blade or point in a public place without lawful excuse, contrary to section 139(1) of the Criminal Justice Act 1988. The

Section 139 of the Criminal Justice Act 1988 provides:

Subsection (5) provides that it shall be a defence for a person charged to prove that he

The judge ruled that the item referred to in the indictment fell within the definition of "a folding pocketknife" and consequently was excluded from the prohibition by reason of

Following an adjournment in accordance with section 58(4)(a)(ii) of the Criminal Justice Act 2003, the prosecution informed the court of its intention to appeal and gave the requisite assurance pursuant to section 58(8) of the 2003 Act. Leave was granted by

On 6 June 2018 the defendant had been stopped by police in the street and was subjected to a search pursuant to the Misuse of Drugs Act 1971. Police officers found in his trouser pocket a folding (and folded down) cut-throat razor. There was no dispute that the cutting edge was less than two inches and that there was no locking mechanism for

He was arrested and in his police interview asserted that he had the article on him in connection with his apprenticeship as a barber. He served a Defence statement in support of the case that he had a reasonable excuse for having the article.

The ruling came about because the defence submitted that the folding cut-throat razor was not an article that fell within the prohibition in section 139. It was submitted by the prosecution that the article was a razor and therefore was not a pocket knife to which the exclusion in section 139(3) applied. Mr Mandel also argued that the item was not only a bladed article, but was potentially lethal in the wrong hands, and for this reason it was appropriate to invoke the mischief rule of statutory interpretation to see why Parliament made it an offence to carry a bladed article. It was submitted by Miss Smart that the statutory prohibition was intended to prevent the carrying of fixed bladed knives in a public place and she cited authority in support of this proposition. She argued that the

The judge ruled that while the authorities offered no assistance on the question of whether a cut-throat razor was a folding knife as defined in section 139, as a matter of commonsense the item in this case was a bladed article. It would fit into a pocket, it had a blade that folded simply into and out of the handle, but could not be fixed. In the absence of any authority to the contrary it fell within the definition of folding pocket knife and, as it had a blade that was less than three inches, it was excluded from the

We have seen the article in question. It is a small razor on an extended metal shaft, sharpened to the degree necessary for use as a razor. It folds into a plastic handle and can be kept open by pressing the thumb on a metal flange. It could be used to inflict serious cutting injuries in the wrong hands.

On this appeal the parties referred to three authorities: a decision of this court Deegan

Miss Smart submitted that the starting point should be that if a court has any doubt as to the meaning of a provision imposing criminal liability, it should apply the presumption that Parliament intended the meaning that was most favourable to the accused. She referred the court to a passage in the Law Commission Report on the Interpretation of Statutes laid before Parliament on 9 June 1999 and particularly paragraph 34 where the report refers to the presumption of Parliamentary intent with a reference to Wright v Ford Motor Company [1967] 1 QB 230. She submitted that the purpose of section 139 of the Criminal Justice Act 1988 was to prevent the carrying of fixed blade articles in public places. In order to fall within the statutory exemption for a "folding pocketknife" the article in question must have three distinct characteristics. First, the cutting edge of the blade must not exceed three inches. Second, the article must not be capable of being locked in place. If it is capable of being locked in place this creates a fixed blade article which is the article which Parliament intended should be prescribed. Third, the blade must be immediately foldable by simple pressure to one side of the blade and there cannot be any other process, for example the pressing of a button. The article in the present case, she submitted, had all these characteristics and therefore fell within the exemption. She drew attention to a passage in Sharma v DPP at paragraph 11 in which Leggatt LJ observed:

Since Parliament chose not to define "folding pocketknife", Miss Smart submitted that it was not sufficient for the prosecution to show that an article that was an immediately foldable cut-throat razor, whose blade did not exceed three inches, was not a "knife". If Parliament intended to exclude this type of item it should have made it clear.

We start with a few preliminary observations. First, we would accept that a penal statute is to be construed strictly in favour of those who may be prosecuted under them -- see for

Second, in two of the three cases referred to by counsel and the judge, the court had the advantage of seeing the article in question, as we have in this case. It has enabled us to form a view as to the nature of the blade in the present case, but of course we have not seen the articles in issue in the other cases, although Mr Mandel showed us a photograph

Third, in Harris and Fehmi the issue was whether a folding knife had to be readily and immediately foldable at all times or whether it was sufficient for the purpose of the proviso in subsection (3) that it could be folded by the pressing of a button. The court

Fourth, in Deegan the appellant had been found in possession of a pocketknife which was capable of being locked in an open position and also being folded once the mechanism had been operated to unlock the blade. The blade did not exceed three inches. The judge had ruled that it was a bladed article and was not a folding pocketknife. He gave permission to appeal on the basis that the Divisional Court in Harris and Fehmi had not been aware of the record of ministerial statements in the course of the Parliamentary debates about what became section 139 of the 1988 Act. The Court of Appeal

Fifth, Sharma concerned a different type of article described by Leggatt LJ at paragraph 7. The magistrates convicted the defendant and the Crown Court dismissed an appeal but stated a case for the High Court. The Divisional Court dismissed the

Section 139(1) defines the offence by reference to possession of "an article" in a public place. Subsection (2) provides that an article to which subsection (1) applies is one which has a blade or is sharply pointed, unless it is a folding pocketknife. Subsection (3) qualifies the folding pocketknife exception. It is not to be regarded as a folding pocketknife for this purpose if the blade exceeds three inches. The cases to which we have referred were cases where the article in question was argued to be a pocketknife within the exception of subsection (2) as qualified by subsection (3). It was common ground in each case that the article fell within the definition of pocketknife.

However, the issue here is whether the article can properly be regarded as a pocketknife. In our view it plainly cannot. A pocketknife is not an apt description of a cut-throat razor. The items have distinct characteristics, as reflected both in their descriptive names and in their functions. A razor is an article of sufficient sharpness to be used to

We are satisfied that the ruling was wrong in law and we will make an order under section 61(4) of the Criminal Justice Act 2003 for proceedings to be resumed in respect of count 3.