R v Simpson (Calvin)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 28 October 1983 |
| Judgment citation (vLex) | [1983] EWCA Crim J1028-9 |
| Docket Number | No. 500/A/83 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 October 1983 |
[1983] EWCA Crim J1028-9
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Mustill
and
Mr. Justice Leonard
No. 500/A/83
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. D. WOLCHOVER appeared on behalf of the Appellant.
MR. A.J. COOPER appeared on behalf of the Crown.
On 7th January this year at the Crown Court at Croydon Before His Honour Judge Band and a jury, this appellant, Calvin Simpson, was convicted of having with him on 5th May 1982 in a public place and without lawful authority or reasonable excuse an offensive weapon, that is to say a flick-knife, contrary to the provisions of section 1 of the Prevention of Crime Act 1953. He was sentenced to three months' imprisonment suspended for two years. He was ordered to pay a fine of £100 or, in default of payment of that fine, to serve one month's imprisonment. There were other charges levelled against him, to which no reference need be made for the purpose of this decision.
It was admitted at the trial that the appellant was in possession of the flick-knife and in possession of it in a public place. In the event, after submissions made to the Judge which we shall describe shortly, he raised as his defence reasonable excuse for the possession of that weapon, the flick-knife, on the basis that he had it in his possession for nothing more sinister than the carrying out of electrical repairs to his motor car. This defence was, as is apparent, rejected by the jury.
It was not contended Before the jury by Mr. Wolchover for the defence that the weapon was other than one made for use for causing injury to the person. The reason for that matter was this. At the close of the - prosecution case defending counsel sought an indication from the learned Judge as to whether he, the Judge, considered it to be open to the defendant to argue that the flick-knife was not made for such use, or, as it is sometimes called, was not offensive per se. The learned Judge held that on the authority of the decision of the Divisional Court in Gibson v. Wales (1983) 76 Cr. App. R. 60, that defence was not open to the defendant.
The appellant, Calvin Simpson, now contends Before us, through the arguments of his counsel, Mr. Wolchover, that the Judge was in error in that conclusion and he submits that this Court should not follow the decision of the Divisional Court in Gibson v. Wales. That sets the scene for the appeal.
It is necessary first of all to turn to the provisions of the Prevention of Crime Act 1953, upon the interpretation of which, in the end, the decision of this Court must be based. Section 1(1) of the Act reads as follows: "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 ….". Subsection (4) contains a definition of "offensive weapon" and it is in these terms: " 'offensive weapon' means 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."
If one analyses the words of the definition, there are three possible categories of offensive weapon: first of all the weapon made for use for causing injury to the person, that is a weapon offensive per se as it is called for instance a bayonet, a stiletto or a handgun; the second category is the weapon which is adapted for such a purpose: the example usually given is the bottle deliberately broken in order that the jagged end may be inserted into the victim's face; and the third category is an object not so made or adapted, but one which the person carrying intends to use for the purpose of causing injury to the person.
The question, simple to state but like most questions simple to state not so easy to answer, is whether the flick-knife comes within the first category or not; and the subsidiary question is, if it does come within the category, in what terms should the Judge direct the jury.
The flick-knife is an easily recognisable object. It has as a matter of fact been conveniently defined in the Restriction of Offensive Weapons Act 1959 as "any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a 'flick knife' or 'flick gun'".
We observe in passing that the 1959 Act and its 1961 counterpart (which was passed in order to fill up a gap in the 1959 Act which was disclosed by the case of Fisher v. Bell (1961) 1 Q.B. 394), were designed to prohibit the importation, sale, display for sale and so on of flick-knives in this country, the reason being that there had been a whole bevy of cases in which flick-knives had been used often with lethal effect in affrays and brawls, and the public was, not unnaturally, alarmed. Parliament acted in order to allay such alarm. But the fact that Parliament and the public in general justifiably regarded this weapon and its use with that alarm does not necessarily mean that they are made for use for causing injury to the person.
Lord Justice Griffiths who delivered the leading judgment in Gibson v. Wales to which we have already referred, came to this conclusion: there is no alternative to the view that a flick-knife is a dangerous weapon per se. It is made for the purpose of causing injury to the person. It may sometimes be used for wholly innocent purposes, even possessed for innocent purposes, but there will be a very heavy burden on any person in possession of a flick-knife to satisfy any court that he had it for such an innocent purpose. I would say that the justices here on the facts of this case fell into error and that a flick-knife is now to be regarded as an offensive weapon per se, for the purpose of section 1 (1) of the Prevention of Crime Act 1953."
Mr. Justice McCullough, the other member of the Court, had this to say: "Whether a flick-knife is an article made for use for causing injury to the person is a question of fact, but in my judgment it is a question which admits of only one answer; it is.
"For the reasons given by Lord Justice Griffiths I take this to have been the view held by Parliament in 1953 and 1961 and to be beyond argument. I, too, would allow this appeal."
The opposing argument put forward is based upon what was said by this Court in Williamson (1978) 67 Cr. App. E. 35. That was a case of a sheath knife, here obviously very different considerations apply from those which affect the position of a flick-knife. It would plainly be impossible to classify all sheath knives as either offensive per se or not offensive per se, and in those circumstances the matter was plainly a question for the jury. But does a flick-knife fall within the words used in Williamson?
These were the words in Williamson: "But what is sometimes lost sight of is this. It is for the jury to decide these matters. It is for the jury to decide whether a weapon held by the defendant was an offensive weapon, bearing in mind the definition in the section which I have just read. Consequently whether the object in the possession of the defendant in any case can properly be described as an offensive weapon is a matter not for the judge but for the jury to decide. The jury must determine whether they feel sure that the object was made or adapted for use in causing injury to the person or was intended by the person having it with him for such use by him. There may perhaps be circumstances in which it is possible to say that there is no evidence to the contrary in a particular case. But that is not the case here."
What has to be decided first of all is whether the flick-knife falls within that exclusion which was put forward as...
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