Jolleh Garry v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty,Mrs Justice Carr |
| Judgment Date | 19 March 2019 |
| Neutral Citation | [2019] EWHC 636 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5192/2018 |
| Date | 19 March 2019 |
[2019] EWHC 636 (Admin)
Lady Justice Rafferty
Mrs Justice Carr
Case No: CO/5192/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Hannah Thomas (instructed by LLM Solicitors) for the Appellant
Mr Peter Ratliff (instructed by CPS) for the Respondent
Hearing dates: 19 th February 2019
Approved Judgment
The Appellant appeals against the 1st of November 2018 dismissal at the Crown Court sitting at Inner London of his appeal against conviction on 3 rd September 2018 for possession of an offensive weapon — a butterfly knife — contrary to S1(1) Crime Prevention Act 1953 (“the 1953 Act”). The knife was in the glove compartment of his car. He accepts that a butterfly knife is offensive per se.
At the Magistrates' and at the Crown Court he advanced the defence of “reasonable excuse” claiming that he used the butterfly knife for his work as a plumber, electrician and gas engineer. He said he used his personal car for work, often storing in it tools and equipment. His evidence was that he used the butterfly knife to open access panels and unsheathe aluminium from piping. He discounted alternative tools, for example Stanley knives, as ineffective.
He had no previous convictions for violence but had been cautioned for four offences, in 1998 for use of threatening abusive or insulting words or behaviour and in 1999 and 2001 for possession of cannabis.
The Crown Court accepted that the butterfly knife might have been used for work purposes and found compelling evidence of his employment and his consequential use of tools. However it concluded that this was not determinative of the issue. Even though used for work, a weapon offensive per se nevertheless required the court to consider whether such use were reasonable.
The questions posed for this court are:
1. Were we correct in making a distinction between items such as a Stanley knife and a butterfly knife in holding that the latter was offensive per se whereas the former was not and was capable of being a tool?
2. Were we correct in law in deciding that the absence in the appellant's previous convictions of any criminal conviction for violence was, contrary to what the appellant submitted, irrelevant to our consideration of reasonable excuse?
3. On the issue of reasonable excuse were we correct in law
a) in considering whether an item that was offensive per se might have been reasonably used as a tool when there were items that were not offensive per se that could be used?
b) in applying an objective rather than a subjective test?
The question posed at 3 (b) need not trouble us since, solely for the purpose of these submissions, the Appellant conceded that the answer must be “yes”
The amended Case Stated of December 2018 seemed to me perhaps to add avoidable strata to the core issues. I take it that when the Case Stated recorded:
“On the issue of reasonable excuse were we correct in law
a) in considering whether an item that was offensive per se might have been reasonably used as a tool when there were items that were not offensive per se that could be used?”
the intention was to phrase the query as I have done above (in paragraph 4?).
I approached our task by considering first whether, once satisfied that a weapon offensive per se was used for work, the court were obliged to find that that amounted to a reasonable excuse, and, second, whether the appellant should have had a good character direction.
The statutory framework
Possession of an offensive weapon
The 1953 Act reads in relevant part:
“1. Prohibition of the carrying of offensive weapons without lawful authority or reasonable excuse
(1) Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence, ….—”
The Criminal Justice Act 1998 (“the 1998 Act”) reads in relevant part:
“139. Offence of having article with blade or point in public place.
(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…..
(4) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place.
(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him—
(a) for use at work;”
The Appellant introduced into argument the 1998 Act, despite the charge being correctly laid under the 1953 Act, so as to set up the submission that where the weapon is a knife, little practical distinction can be drawn between the two Acts, which “share” a Sentencing Council Guideline, and that good reason to use a knife for work (in the later Act) should equate to a reasonable excuse (in the earlier).
In dialogue counsel sensibly conceded that on these facts, that a different statutory regime could have been contemplated for charging the appellant did not assist in the court in answering the questions.
Grounds of appeal
It is convenient to discuss both of questions 1 and 3 together.
The Appellant as to question one, namely:
“Were we correct in law in making a distinction between items such as a Stanley knife and the item in question a butterfly knife in holding that the latter was offensive per se whereas the former was not and was capable of being a tool?”
suggests that the court found in essence that a weapon offensive per se cannot (lawfully) be used as a tool. The effect, he argues, is to preclude every workman using a tool which is also a weapon offensive per se from advancing the defence of reasonable excuse and that such must be contrary to the intention of Parliament.
Discussion
The 1953...
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