Divisional Court
| Published date | 01 November 1993 |
| DOI | 10.1177/002201839305700402 |
| Date | 01 November 1993 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
A
GOOD
REASON FOR HAVING AN OFFENSIVE WEAPON
DPP
VGregson
Godwin v
DPP
Harris v
DPP
Fehmi v
DPP
Aperson is guilty of an offence contrary to s 139 of the Criminal Justice
Act 1988 if he has with him in a public place 'any article which has a
blade or is sharply pointed except a folding pocket-knife' unless he had a
good reason or lawful authority for having the article with him in a public
place. In
DPP
v Gregson (1993) 96 Cr App R 240, the defendant, who
was charged with an offence under s 139, was being questioned by the
police when a knife with a four-inch blade fell from his jeans. He gave
no reason for his having it to the police, but at his trial he stated that he
habitually used the knife at work for cutting floor tiles, that he had left it
in his jacket pocket some six days earlier, when he had last used it at
work, and had forgotten about it. The justices held that on a balance of
probabilities they thought that the defendant had a 'good reason' for
having the knife with him on the later occasion and they dismissed the
information. In a case stated, two questions of interpretation were raised:
(1) whether, to constitute a good reason under s 139(4), the defendant
must have a specific reason for having the knife with him on that
occasion, and (2) whether adefendant may rely on the fact that he had
forgotten that he had it with him can constitute a good reason within the
subsection. Although the Act is here concerned with the words 'good
reason', reliance was sought to be placed on the statement by May U in
RvMcCalian (1988) 87 Cr App R 372 as to the proper interpretation of
the words 'reasonable excuse' in s 1 of the Prevention of Crime Act
1953. There, May U stated that, although to have forgotten that one has
an offensive weapon with one 'is not in itself a reasonable excuse', it may
assist in establishing an excuse if it is 'coupled with particular
circumstances relating to the original acquisition of the article', for, taken
together, 'given sufficient facts', the two factors may combine to give a
reasonable excuse. Here, however, the Divisional Court held that the
time element was important in considering the two factors. Six days
earlier, when the knife was used at work, the defendant had a good
reason, but that could not mean that that was a good reason for having
it with him six days later when not
at
work. Everything, therefore,
depended on his plea for forgetfulness. The court expressed surprise at
the fact that the justices had accepted the defendant's statement that he
had forgotten, since he stated that he had put it in his jacket pocket six
days earlier, whereas the evidence showed that it had fallen out of his
jeans. The court none-the-Iess accepted the justices' finding of the fact of
forgetfulness, but held that, while that might afford an explanation, it
308
Divisional Court
did not constitute a good reason under the subsection. The court
therefore held that the justices had not made the correct determination
in law, in view of their reliance on the defence of forgetfulness. But the
court declined to make a pronouncement on the correct answer to the
justices' first
question-whether
the defendant must prove a specific
reason for having it with him on the particular occasion alleged.
In Godwin v
DPP
(1993) 96 Cr
App
R 246, the defendant was found
to have with him in a public place a kitchen knife with a sharp point and
ablade in excess of three inches. He claimed that he had a good reason,
as he had obtained it, to take it to his new home, where there were as
yet no kitchen utensils. The justices thought that this explanation was
'most improbable', as the defendant had produced the knife when he
encountered aperson whom he knew to have a grudge against him. They
convicted him and stated a case upon the question whether there was
evidence on which they were entitled to disbelieve him on a balance of
probabilities and whether, where an explanation is put forward which is
not inherently unlikely and which the prosecution has declined to check
(although invited to do so), the prosecution is entitled to invite the
justices to disbelieve the defendant.
The
defendant contended that,
where an explanation which is not inherently incredible is given and no
attempt is made to rebut it, the presumption of innocence is resurrected.
This suggestion was 'entirely rejected' by the court. Once the Crown has
discharged the burden placed on it by s 139, the defendant is guilty
unless he satisfies the justices as to the burden placed on him by subs
(4).
Here,
he was stated to have failed to do so, so that they were bound
to convict. McGowan Ustated that, as the justices were entitled to
disbelieve the defendant, the appeal was 'unarguable'.
In both Harris v
DPP
and Fehmi v
DPP
[1993] 1 WLR 82, the
defendants, who were charged with an offence under s 139 of the
Criminal Justice Act 1988 in respect of their having a 'lock-knife' with
them in a public place, argued that the knife was a 'foldable pocket-
knife' and therefore came within the exception set
out
in subs (4). Harris
had a pointed lock-knife which locked in the
open
position and could be
unlocked and refolded only by pressing a button to release the locking
mechanism.
The
magistrate, being referred to the dictionary definition of
pocket-knife and pen-knife, concluded that the lock-knife came within
neither of those definitions and convicted. In Fehmi's case, the justices
found that, although the blade of the knife could be folded, it was only
by activating the button-trigger, as in Harris's case. They, too, concluded,
as the stipendiary magistrate had done in that case, that the knife was
not a folding pocket-knife and convicted.
The
Divisional Court concluded
that the vital relevant fact about both knives was that, although one
could open them manually, one could not close them in the same way,
owing to the necessity of first operating the unlocking device. The
appellants submitted that, as this was a penal statute, it required to be
interpreted in such a way that any uncertainty was resolved in favour of
the defendant. A conviction could be obtained only if the Act stated
clearly that it applied to the knife in question.
The
appellants pointed to
the fact that there is nothing in the Act which says that the presence or
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