N v Director of Public Prosecutions

LORD JUSTICE PITCHFORD: Supperstone J will give the first judgment.

MR JUSTICE SUPPERSTONE: This is an appeal from the decision of District Judge Arbuthnot in the Youth Court at Croydon Magistrates' Court on 6 July 2010, whereby the appellant was convicted of the offence of possession of an offensive weapon, namely a metal bar, contrary to section 1(1) of the Prevention of Crime Act 1953.

The Act provides by section 1(1):

By sub-section (4) an "offensive weapon" is defined as meaning "any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him".

The facts found were that the appellant and a friend had gone to a party at 32 Cassland Road ("the property") where they had been involved in an altercation. They had been approached by about 15 males. The group of men had asked them to leave. Their manner was aggressive. There was shouting and swearing. The males were about the same age as them. There had been a little scuffle. No weapons were used or shown to the appellant and his friend. The appellant and his friend had then left the party on foot.

The police received a report that a group of youths had left the property armed with knives taken from the kitchen. This was not within the knowledge of the appellant. As the appellant and his friend were walking down the main road, a car stopped approximately 2-3 metres away from them. One of the occupants shouted, "We thought you were bad boys". The car was packed with boys the same age, although two appeared older. No men got out of the car. The appellant did not see any weapons. The appellant did not recognise the men in the car. The appellant and his friend then ran off when they saw the other car door open. The appellant had had reasonable cause to fear, and indeed had feared, that he would be attacked at this stage.

The appellant did not see the car again. The appellant had picked up the bar three minutes after the incident with the men in the car. The appellant said he picked up the bar to protect himself in case the car found them.

The appellant said he took four steps and the police arrived. The police did not see the appellant pick up the bar. They had been following the appellant and his friend along two streets. The appellant had the metal bar with him in a public place. The appellant was out of breath and sweating when stopped by the police. The appellant dropped the bar on seeing the police.

Before the judge, it was contended by the appellant that he had a reasonable excuse for the possession of the metal bar, namely that he had been in imminent fear of attack. It was contended by the respondent that the appellant had not been in imminent fear of attack.

The judge was of the opinion that five minutes after the incident with the car, the appellant was not at risk of imminent attack. The appellant may have believed he was at risk of imminent attack, but his belief was not a reasonable one in the circumstances. It was not a reasonable belief because the appellant had not seen any weapons in the car. He had not believed the car had followed him, and he had the bar five minutes after he had seen the car once all threat had passed. He did not therefore satisfy the judge, on the balance of probabilities, that he had a reasonable excuse for having the metal bar with him when he was stopped by the police five minutes after the risk of danger had passed. Accordingly, the judge found the appellant guilty.

The question for the opinion of this court is:

Miss Orme, in her attractive argument on behalf of the appellant, has advanced two grounds of appeal: first, that the judge erred in finding that the appellant was no longer in anticipation of imminent attack at the time he was found in possession of the metal bar; second, the assessment as to whether the appellant was in anticipation of imminent attack should be subjectively determined on the basis of what the appellant believed the circumstances and danger posed by those circumstances to be at the time. What is relevant is whether such a belief was genuinely held by the appellant. The assessment is to be determined in accordance with the circumstances as the appellant perceived them to be, even if that assessment was mistaken.

On the first ground, Miss Orme submits that the judge erred in three respects in holding that the appellant was not in anticipation of imminent attack. First, the decision, she submits, represents a marked departure from the temporal restrictions identified in Evans v Hughes [1972] 1 WLR 1452 as to the permissible limits of the concept of imminence. Second, the decision in Evans v Hughes notwithstanding, five minutes is well within the margin of "imminence". Third, the judge failed to give due regard to the geographical proximity of the appellant when he was found in possession of the metal bar to the scene of what she described as the earlier "assault" at the party and to the incident with the car.

On the second ground, Miss Orme submits that there is no support for the adoption of a reasonableness criterion from Evans v Hughes. The issue is whether the defendant is in "anticipation of imminent attack". Anticipation, she submits, is not a concept amenable to objective determination. It is dependent on the particular appreciation and assessment of facts as perceived by an individual.

Miss Orme submits that the assessment as to whether a defendant could be said to be "in anticipation of imminent attack" is analogous to the assessment of circumstances justifying recourse to force in the context of self-defence.

The consequence of the Court of Appeal's decision in Attorney General's Reference (No 2 of 1983) [1984] EWCA Crim 1 is, she submits, that actions of defendants which will normally represent the commission of criminal offences preparatory to self-defence in anticipation of future violence will be covered by self-defence. It is therefore open to a defendant, she submits, to argue, even in the absence of a statutory provision, that in arming himself in anticipation of an imminent threat, he was acting in pre-emptive self-defence.

To the extent that both the defence of anticipation of imminent attack in Evans v Hughes and the fact that self-defence are co-extensive in application, the principles governing the application of both defences must be the same.

In the context of the defence of self-defence, Miss Orme submits that while the use of force employed is objectively assessed subject to a criterion of reasonableness, the assessment as to the circumstances necessitating recourse to force is subjectively assessed. She contends that the same position should prevail in the context of assessing validity of a defendant's contention that he was in anticipation of imminent attack.

In relation to the test to be applied to self-defence, Miss Orme referred us to the well-known statement of Lord Griffiths in Beckford v The Queen [1988] AC 130 at 145 and to the decision in Palmer v The Queen [1971] AC 814. Further, Miss Orme relies on section 76 of the Criminal Justice and Immigration Act 2008, and in particular sub-section (7). She recognises that section 76(2), which prescribes the remit of its application, does not extend to reasonable excuse under section 1 of the Prevention of Crime Act 1953. However, she argues by analogy that it is illuminative as to the interpretation such concepts should be afforded. She submits the judge confused the application of a criterion of reasonableness to the state of mind of the appellant, rather than to his actions.

Section 76(7) confirms that it is "action" which has to be necessary and reasonable. In contrast, it is what the person "honestly and instinctively thought" which is relevant. The assessment is not qualified by a criterion of reasonableness. Miss Orme submits that even in cases where a defendant is mistaken as to the need for force, he may still be entitled to rely on self-defence.

Miss Orme submits that a three-stage process should be adopted when considering the defence of reasonable excuse in section 1 of the Prevention of Crime Act 1953: first, the defendant must establish on a balance of probabilities the facts which led to the generation of fear or the belief; second, that he had an honestly and genuinely held belief that in consequence of those facts he was in imminent danger of attack; third, that arming himself with the weapon was a reasonable response.

Mr Fenhalls, for the respondent, submits that the judge committed no error of law. As to the first of Miss Orme's two grounds of appeal, he submits that the judge did not depart from the approach adopted in Evans v Hughes. The issue of how long after the original threat a reasonable excuse can exist is a simple question of fact for the court to determine. Mr Fenhalls referred to the case of R v McAuley [2009] EWCA Crim 2130 as confirming what he described as the enduring applicability of the approach set out in Evans v Hughes. He submits that the appellant is wrong to suggest that the authorities create a clear and binding analytical approach to the question of imminent attack.

The judge, he says, could not have expressed the conclusion that she did, namely that the appellant may have believed he was at risk of imminent attack, and his belief was not a reasonable one in the circumstances, without giving proper consideration to the arguments advanced on his behalf. Evans v Hughes is not authority for the submission that five minutes after an attack an imminent threat must remain.

As to Miss Orme's second ground, Mr Fenhalls submits that there is no authority to support the suggestion that reasonable excuse should be determined subjectively. Further, there is no good reason to import the self-defence test as the appellant contends. He submits that if a defendant fears imminent attack, this may afford him a reasonable excuse, but it does not guarantee this result.

In my judgment, the judge did not err in finding that the appellant was no longer in anticipation of imminent attack at the time he was found in possession of the metal bar. I do not accept Miss Orme's submission that Evans v Hughes provides explicit guidance as to what lapse in time would be permissible when assessing whether a defendant was in anticipation of imminent attack. In my view, far from departing from the approach adopted in Evans v Hughes, the judge adopted the approach suggested in that case.

In Evans v Hughes, the Divisional Court, presided over by the then Lord Chief Justice, held that it could be a reasonable excuse that the person with the offensive weapon was anticipating an imminent attack and so carried the weapon for his own defence. Lord Widgery said at 1455D-E:

He added at 1455F-H that:

It necessarily follows that each case must be determined on its own facts. There is, in my view, no assistance to be had by comparing the facts of the present case with the facts of other cases. In R v McAuley the court was concerned with an appellant charged with having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988. Sub-section (4) of that section provides a defence for a person charged with an offence under this section to prove that he had "good reason" for having the article with him in a public place. The defence of "good reason" under the 1988 Act has been held to be akin to that of reasonable excuse under the 1953 Act. Keene LJ, giving the judgment of the court, said at paragraph 13:

In Archbold 2011 at 24-122 it is observed that:

In my view, that is the correct approach. In the present case, the judge took into account all relevant factors, before concluding that she was satisfied that the appellant had a reasonable excuse for having the metal bar with him when he was stopped by the police five minutes after she found the risk of danger had passed. In reaching that conclusion, it is clear she had regard to temporal and geographical considerations.

Turning to Miss Orme's second ground of appeal, there is no authority to support the submission that reasonable excuse should be determined subjectively. Nor is there, in my view, any basis for importing the self-defence test. The approach of the judge was, in my view, entirely correct. She properly took into account that the appellant may have believed he was at risk of imminent attack, but concluded that his belief was not a reasonable one in the circumstances. This was because, on the facts as she found them, he had not seen any weapons in the car, he had not believed the car had followed him and he had the metal bar five minutes after he had seen the car once all threat had passed.

When a defendant claims that he had a reasonable excuse for possession of an offensive weapon because he believed he was at risk of imminent attack, it is for him to prove both the belief and the reasonableness of the belief on a balance of probabilities. Were this not the case, any defendant could claim that he honestly believed he was at risk of imminent attack.

As Lord Widgery made clear in Evans v Hughes in the passage of his judgment I have referred to, the purpose of the Act is to prevent the carrying of weapons, except when there is "an imminent particular threat affecting the particular circumstances in which the weapon was carried". Both the test and where the burden lies are different in a case where self-defence is claimed. In such a case the prosecution must prove either that the defendant is not entitled to rely on the defence because he did not honestly believe he was under attack, or was about to be attacked, or that the force used was excessive.

In my view, there is no justification for the adoption of the three-stage process Miss Orme puts forward. The fact-finder has to make a decision as to the circumstances that prevailed at the material time. We are prepared to accept that the defendant's honestly held belief is one of the circumstances. It is then for the tribunal to decide objectively whether, in all the circumstances, the defendant had a reasonable excuse for carrying the weapon. The judge was prepared to accept he believed he was in danger of attack, but her objective assessment of all the circumstances led to her finding that there was no reasonable excuse, for the reasons she gave.

For the reasons I have given, the answer to the question for the opinion of this court is "Yes". Accordingly, I would dismiss this appeal.

LORD JUSTICE PITCHFORD: I agree.

For over 50 years Magistrates' Courts and juries have been engaged in the task of assessing objectively circumstances in which the defendant claimed he had a reasonable excuse for carrying an offensive weapon. I agree with my Lord that one of those circumstances may be the defendant's own belief that he was in danger of imminent attack by another or others. But Miss Orme argues that the reasonableness of the excuse should be judged solely in the light of a defendant's belief in an imminent attack upon him.

First, in this case, the District Judge did not find that, on a balance of probability, the defendant had such a belief; she found that he "may" have done. She assumed the existence of that belief for the purpose of assessing the reasonableness of the excuse. Second, and on the other hand, Miss Orme was driven to concede that, upon the authority of McAuley [2009] EWCA Crim 2130 at paragraph 13, the tribunal of fact is entitled when considering the reasonableness of the excuse to assess for itself, for example, how imminent was that attack; or how soon would it take place; or how likely was it to take place.

In my judgment, that is exactly what District Judge Arbuthnot did when she concluded that, notwithstanding the existence of a belief claimed by the defendant, that belief could not constitute a reasonable excuse for being in possession of a metal bar because the risk in which the defendant believed had plainly passed or was minimal.

I too would dismiss the appeal.

Thank you both very much for your assistance. Are there any consequential applications?

MR FENHALLS: My Lord, no, not from us. The appellant is a youth and legally aided, so there are no applications. Thank you.

MISS ORMES: No, my Lord.

LORD JUSTICE PITCHFORD: Very well. Thank you very much.