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

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:

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.

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.

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.

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.

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

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.

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.

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:

At page 378, May LJ continued:

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

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.

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:

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:

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.

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:

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:

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.

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

MR JUSTICE PITCHFORD: Yes.

MR BAILIN: I am grateful.