R v McCalla
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY |
| Judgment Date | 30 March 1988 |
| Judgment citation (vLex) | [1988] EWCA Crim J0330-16 |
| Docket Number | No. 7484/B2/87 |
| Court | Court of Appeal (Criminal Division) |
| Date | 30 March 1988 |
[1988] EWCA Crim J0330-16
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice May
Mr. Justice Otton
and
Mr. Justice Simon Brown
No. 7484/B2/87
MR. E. COFIE appeared as Counsel on behalf of the Appellant.
MR. A. DE MOLLER appeared as Counsel on behalf of the Crown.
On 27th November, 1987 in the Crown Court at Inner London Sessions House the appellant was convicted after a three-day trial on count 2, attempted wounding, count 3, carrying an offensive weapon, and count 4, reckless driving. He was sentenced respectively to 12 months' imprisonment, three months' imprisonment consecutive, three months' imprisonment concurrent and to be disqualified from driving for three years, a total sentence of 15 months' imprisonment. He appeals against conviction on the count of carrying an offensive weapon on a point of law referred to the Full Court by the learned Single Judge, who so determined it to be and therefore needing no leave.
The incident giving rise to the offences began when plainclothes police officers, travelling in an unmarked Fiesta motor car, remonstrated with the appellant, who had double-parked his Saab motor car in a side street off Stockwell Road in London. The Fiesta was able to get past, but with difficulty.
Unfortunately, instead of leaving the matter there, as would have been wiser, the appellant, who alleged during the trial that the police officers had made racially offensive remarks, followed the Fiesta, overtaking another vehicle in Stockwell Road as he went, coming in behind the Fiesta and then bumping it twice from behind. He overtook the Fiesta, passed a pedestrian crossing on the wrong side of the road, and went into a side turning, causing an oncoming car to swerve. He then stopped his car at the next junction with the Fiesta alongside it.
The police officer who had been in the passenger's seat of the Fiesta went over to the driver's window of the Saab, told the driver, who was the appellant, that they were police officers and to stay where he was, and tried to take the ignition key from the Saab. The appellant pushed the door against the officer and produced a knife. He moved his hand holding the knife in what was described as a slashing movement towards the officer's face and shouted: "I don't joke, I'm going to kill." The officer fell backwards to avoid the knife. The appellant then shut the door and accelerated off once again. He was arrested not long afterwards on a nearby estate. He was taken to the police station with the Saab. It was not disputed that when that vehicle was searched there was found in the glove compartment a cosh, the subject of the count with which this appeal is concerned. The appellant accepted that it was in the car. According to the prosecution, when he was asked why it was there he replied: "Well, some of my mates have been attacked before and I don't want that to happen to me." He was asked: "If someone attacked you, would you use the cosh?", and he said: "Yes, but only to defend myself."
During his evidence the appellant denied that that conversation had taken place. He said that he had told the police the truth, which was that he had picked up the cosh on a building site where he worked, that he had put it in the car about a month before the incident with the Fiesta, and that he had forgotten about it.
Against that background two criticisms are made of the learned judge's summing-up. First, it is submitted that there was a misdirection on the question whether or not the appellant had had the cosh with him for the purposes of the relevant statute in the context that, although he had picked up the cosh on the building site, at the time when he was stopped by the police officers and the cosh was found he had forgotten that it was in the car.
The learned judge's summing-up on this point (p. 9) reads:
"Did the defendant have it with him? That is a question for you to answer. You may come to the conclusion that if, as is not in dispute, it was in the glove compartment of his Saab motor car, then when he was driving the motor car he certainly had it with him, in the same way that he had everything else in the car with him. But that begs one question which arises in this case. What is the significance, if you accept it, of the defendant's evidence to the effect that he had forgotten that the cosh was in the glove compartment? Members of the jury, I am going to direct you as a matter of law that if you cone to the conclusion – which, as I say, is not in dispute – that the defendant himself put the cosh into the glove compartment, he had it with him at the time he put it in, and he continued to have it with him whenever he was in the car, whether or not he remembered it was there. Having something with you in this legal sense does not depend upon the powers of memory of the person who put the article where it was. Possession of the article, if I can use that particular expression, does not come and go as memory revives or fades. It would be ridiculous to say, as he drives along the road, so, if he remembers that he has got the cosh in the glove compartment, he is guilty of an offence, and if at the next traffic lights he forgets, he ceases to be guilty of the offence, and then becomes guilty again next time he thinks about the cosh. That would be absurd."
It has been submitted that that was a misdirection in respects to which we will come in a moment, and that the learned judge ought not to have withdrawn from the jury consideration of whether the appellant knew at the material time that he had the cosh with him.
The other aspect of the summing-up which is criticised is the direction on reasonable excuse, viz.:
"There is one other requirement" (under the statute). "If the defendant himself proves that he had some lawful authority or reasonable excuse for having the offensive weapon with him, he is to be acquitted. I say if he proves it, because the Act of Parliament says that the proof of that particular lawful authority or reasonable excuse lies on him. It does not mean that he has to prove it as the prosecution have to prove, beyond reasonable doubt or so that you are sure. It means that he has to prove lawful authority or reasonable excuse on the balance of probabilities; in other words, it is more likely than not that facts exist which constitute lawful authority or reasonable excuse. I am going to direct you again as a matter of law that there is no evidence before you which could justify you in coming to the conclusion that the defendant has proved lawful authority or reasonable excuse."
Briefly, the contention on behalf of the appellant is that his absence of recollection of the presence of the cosh in the glove compartment could be a reasonable excuse for the appellant having the offensive weapon with him, if indeed he had, and that in any event that ought to have been left to the jury;further, that the learned judge was wrong to say that there was no evidence before the jury upon which they could come to the conclusion that the defendant had proved lawful authority or reasonable excuse.
Consideration of those two points – which if we may say so have been advanced to the Court succinctly, cogently and attractively by Mr. Cofie on the appellant's behalf – involves the examination of at least four earlier decisions. We start with Cugullere, (1961) 45 Cr. App. R. 108. The prosecution there was under s. 1 (1) of the Prevention of Crime Act in respect of an offensive weapon. On the facts the appellant was found driving a stolen motor van in the back of which there were three pickaxe handles which the prosecution said were offensive weapons. The appellant's defence was that he did not know, and never had known, that the implements were in the back of the van. At the trial the chairman directed the jury that the appellant had been in possession of the implements and that it was for him to prove that he had a lawful excuse for that possession.
When the matter came before the Court of Criminal Appeal the judgment was delivered by Salmon J (as he then was). The only passage that need be read is at p. 110 where, having cited the relevant provisions of the 1953 Act, the learned judge continued:
"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. In the judgment of this court, the section cannot apply in circumstances such as those. It is, therefore, extremely important in any case under this section for the judge to give a careful direction to the jury on the issue of possession. The first thing the jury have to be satisfied about, and it is always a question for the jury, is whether the accused person knowingly had with him the alleged offensive weapon."
In that case the appeal was allowed and the conviction quashed.
Chronologically we mention Buswell, (1972) 1 ER 75. It is, we think, unnecessary to deal in any detail with the facts. They concerned the alleged unlawful possession of drugs. The judgment of the Court on appeal was delivered by Phillimore LJ. A substantial portion of it appears in the judgment in the later case of M...
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