Bayliss, R (on the application of) v Director of Public Prosecutions

J U D G M E N T

1. MR JUSTICE PITCHFORD: This is a defendant's appeal by way of case stated from a decision of the Bury St Edmunds Magistrates' Court on 26 April 2002, convicting the appellant of an offence contrary to section 139(1) of the Criminal Justice Act 1988. In its relevant parts, section 139 provides as follows:

"1. Subject to subsections 4 and 5 below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence.

"2 . . . this section applies to any article which has a blade . . .

"4. It shall be a defence for a person charged under this section to prove that he had a good reason or lawful authority for having the article with him in a public place . . ."

2. The justices found the following facts as appears from their statement of case. The appellant was in Tesco's superstore, I am told, at around 10 o'clock on the morning of 31 December 2001. The store was open to the public at that time. Police Constable Balding approached the appellant, arrested him and took him to the police station. While at the police station and during a search, a lock knife was found in the appellant's possession, therefore it must have been in his possession while he was in the store. The appellant appeared surprised when the lock knife was found on him. He was, by occupation, a carpet and vinyl layer, and in the course of that occupation, had used the knife to cut vinyl floor coverings. Usually he used a Stanley knife, but at about 10.15pm on 30 December, the blade of his knife broke so he continued by using lock knife. Following the completion of his work, he placed the lock knife in a hollow in his jeans belt and at some point between that moment and visiting Tesco's, he forgot that he had the lock knife with him. The justices found that the lock knife was an article which was covered by the provisions of section 139.

3. Originally the appellant had been charged under the Prevention of Offences Act with possession of an offensive weapon. Subsequently, that charge was changed to an allegation that he was in possession of a bladed instrument, contrary to section 139, but omitted from the information were the words "in a public place", namely Tesco's store, St Saviour's Interchange, Bury St Edmunds. Upon an application by the prosecutor, the information was amended so as to include those words. As this appeal was originally cast, the appellant, as a ground of appeal, criticised the decision of the justices to permit the amendment, but in the light of authority, Mr Bailin, on behalf of the appellant, has abandoned that ground of appeal and rightly so.

4. There remain, however, two questions which I am invited to consider. First: was there evidence upon which the justices could have found that the defendant knowingly had the knife with him in a public place? Secondly: did the defendant establish, on a balance of probability, that he had good reason for having the knife with him at Tesco's? Mr Bailin first submits that since the appellant had forgotten the knife was in his belt, he did not knowingly have it with him in the context of having an offensive weapon, contrary to section 1 of the Prevention of Crime Act 1953.

5. R v Cugullere[1961] 1 WLR 858, is an authority providing some support to Mr Bailin's argument. In that case, the defendant had been driving a motor-van when he was stopped by the police. In the back of the van there were found three pickaxe handles bound with adhesive tape. His defence was that he did not know that the implements were in the back of his van. In his summing up, the Chairman of Quarter Sessions directed the jury that once the prosecution had proved possession, the onus then shifted to the appellant to prove lawful authority or reasonable excuse. The Court of Appeal over which Lord Parker CJ presided held that the words "has with him in any public place", meant in the context of the 1953 Act "knowingly has with him". Since the onus remained upon the Crown to prove that the defendant knew that the weapons were in his possession, the Chairman's direction to the jury was wrong in law.

6. Delivering the judgment of the court, Salmon J at page 860 said this:

"This court is clearly of the opinion that the words 'has with him in any public place' must mean 'knowingly has with him in any public place'. If some innocent person has a cosh slipped into his pocket by an escaping rogue, he would not be guilty of having it with him within the meaning of the section because he would be quite innocent of any knowledge that it had been put into his pocket."

7. However, the facts of Cugullere are clearly distinguishable from those in the present appeal since it was this appellant who placed the knife into his belt.

8. The Court of Appeal again considered the meaning of the phrase "having in a public place any offensive weapon" in McCalla [1988] 87 Cr App 372. This was, again, a charge brought under section 1 of the 1953 Act. The police stopped the defendant in a car. They found a cosh in the glove compartment. In evidence, the defendant maintained that he picked up the cosh on a building site where he had been working about a month before, had put it in the glove compartment and then forgotten about it. The decision reached by the Court of Appeal in dismissing the appeal against conviction was that once someone had or possessed something, he continued to have or possess it until he did something to rid himself of having or possessing it. Merely to have forgotten is not sufficient to exclude him from continuing to have or possess the object.

9. The court considered a number of authorities including Cugullere, Buswell [1972] 1 WLR 64, Martindale (1986) 84 Cr APP 31, and Russell (1985) 81 Cr App 315. May LJ, in giving the judgment of the court, at page 377, cited from the judgment of the Lord Chief Justice in Martindale as follows:

"In the judgment of this court [that the argument that lack of memory or knowledge negatives possession is fallacious], it is true that a man does not necessarily possess every article which he may have in his pocket. If for example some evil-minded person secretly slips a portion of cannabis resin into the pocket of another without the other's knowledge, the other is not in law in possession of the cannabis. That scarcely needs stating. But the present situation is different. Here the applicant himself put the cannabis into his wallet knowing what it was and put the wallet into his pocket. In our judgment, subject to the authorities to which reference will have to be made in a moment, he remained in possession even though his memory of the presence of the drug had failed or disappeared altogether. 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 the good memory would be convicted."

10. At page 378, May LJ continued:

"As to the law as stated in those four cases, one comment must first be made. In those concerning drugs, the consideration is that of possession. In those concerning offensive weapons, it is having them in a public place. To have something with one necessarily requires, we think, closer contact, as it were, with mere possession. Every case of 'having' is one of 'possessing', but it does not necessarily follow that every case of 'possessing' is one of 'having' within the meaning of the relevant statutory provisions. However, for the purposes of the instant case, and having regard to the earlier decisions to which we have referred, in our view, the relevant considerations as to recollection and forgetfulness are the same."

11. Having held that Russell was decided per incuriam, he continued atpage 379:

"We think that the basic principle underlying those cases is that once one has or possesses something, be it an offensive weapon or a drug, one continues to have or possess it until one does something to rid oneself of having or possessing it; that merely to have forgotten that one has possession of it is not sufficient to exclude continuing to have or possess it. As Phillimore LJ said in Buswell, there is no limbo into which the article can go if recollection dims. Accordingly, in our judgment, there was no misdirection by the learned judge in the instant case about the appellant's knowledge that he had the cosh with him. There was no need to leave to the jury the question whether he had it with him. He knew that he had it because he had picked it up at the building site and continued to have it with him in his car, and by the statutory provisions he had it with him in a public place."

12. Mr Bailin submits that there is a distinction to be drawn between the facts of the cases which I have outlined and the facts of this case: a distinction between forgetting while in a private place or having a reasonable excuse, and forgetting while in a public place. He submits that since the appellant may have forgotten about the knife while he was at home rather than when he was in the street or in the store, he cannot be said to have had it with him knowingly in a public place. In my view, that submission cannot survive the reasoning in McCalla. It is a gloss which formed no part of the process which led May LJ to reach the conclusion to which I have just referred. In my judgment, McCalla is binding and conclusive of the first ground. This appellant placed a knife in his belt the day before his arrest. At the time of his arrest he had forgotten. Forgetfulness does not change the fact that he had it with him, and accordingly the first ground must fail.

13. As to ground two, the position is, it seems to me, just as straightforward. I accept the proposition, for reasons which I shall come to in a moment, that there may be circumstances in which forgetfulness can be relevant to the defence of good reason. In dealing with an offensive weapon case, the Court of Appeal, Rose LJ presiding in Glidewell, decided that forgetfulness might very well be relevant in a jury's consideration of whether or not a defendant had a reasonable excuse for possession of an offensive weapon. I have been provided with a transcript of the judgment of the Vice President, reference 9804789/W3. At page 3 of the transcript, Rose LJ said this, having considered the case of McCalla:

"On behalf of the Crown, Mr Hallowes drew attention to the fact that McCalla's appeal was dismissed. It is to be noted that there was one significant difference between the facts of McCalla and the facts in the present case, namely that McCalla was himself the author of the introduction of the offensive weapon into the glove compartment of his car. It was an item which he had found on a building site at about a month before the time of his arrest. In the present case, of course, it is apparent that on the evidence it was not the appellant who was responsible for introducing any of these items into his vehicle . . .

"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 case, the fact that the weapons had been in his possession for a comparatively 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 forgetfulness to the question of whether his excuse for possession was reasonable, a matter for the jury."

14. Where however, a defendant placed a work knife in his pocket and simply forgot it, his forgetfulness would not alone provide him with a good reason for having it. In Gregson (1993), 96 Cr App 240, a decision of the Divisional Court upon section 139 of the Criminal Justice Act 1988, McCowan LJ gave the leading judgment. The facts were similar to those in the instant appeal, but the interval between placing the work knife in his jacket and the defendant's discovery with it in a public place was six days. At page 243 McCowan LJ said:

"In my judgment, Mr McGuiness 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 it with him at his work and might well have put it into his pocket at work six days earlier . . . In my judgment, forgetfulness may be a explanation, it cannot be a good reason."

15. Gregson was followed by the Court of Appeal in Hargreaves, a decision delivered on 30 July 1999, again I have helpfully been provided with a transcript, reference 98/2069/X2. The facts in that case were that the defendant said that he had completely forgotten that he had a knife on him. He had left his home and cycled two miles and then realised that he had the knife in his pocket. He intended to give the knife to his mother at the Railway Institute but she was not there. A friend told him that he could obtain money from a cash machine at York Station and he had cycled there to take out £10. Then, having obtained the money, he decided to go straight home and had in the meantime entirely forgotten about the knife. Only when approached by police officers did he remember it.

16. In dealing with the submission to the effect that his forgetfulness provided a good reason, Otton LJ delivering the judgment of the court, referred to the case of Gregson. He quoted the passage from Gregson to which I have already referred and continuing:

"That statement of law is clear and unequivocal. Although we are not bound by it, we have no reason to doubt its accuracy."

17. I have accepted earlier that it seems to me there may be circumstances in which forgetfulness might be relevant to the issue of good reason. Suppose, for example, the reason why a defendant had forgotten that he had a bladed instrument, which he usually used for work, in his possession, was because he was suffering at that time from a relevant illness, or suppose that his forgetfulness was occasioned by the consumption of medication in consequence of such an illness. I do not read the judgment of McCowan LJ in Gregson and the judgment of Otton LJ in Hargreaves as declaring the law to be that forgetfulness can never be relevant to the question of good reason, merely that in those cases, forgetfulness alone did not constitute, and could not constitute, good reason. Here the justices were the tribunal of fact. They considered all the circumstances and it is instructive to remember the words used in the case stated:

"The lock knife was an article covered by the provisions of section 139 of the Criminal Justice Act 1988, and given the short time period between the defendant using it on 30 December and visiting Tesco's on 31 December, the combination of the facts, that the appellant had been using the lock knife for a legitimate purpose on 30 December and forgotten he had it with him by the time he went to Tesco's on 31 December, did not in this particular case amount to good reason within the meaning of the section."

18. It seems to me that the decision reached by the justices was open to them upon the facts as found by them. On authority, I can see no basis for interfering with that view. Accordingly, for the reasons I have given, the justices were right to find that the appellant had the knife with him within the meaning of section 139(1), and were right to find that he had no good reason for having it with him within the meaning of section 139(4). Accordingly, the appeal must be dismissed. Thank you both very much for your help.

19. MR BAILIN: My Lord, can I asked for a detailed assessment for legal aid taxation?

20. MR JUSTICE PITCHFORD: Yes.

21. MR BAILIN: I am grateful.