Ronald Cooke v Director of Public Prosecutions
Jurisdiction | England & Wales |
Judge | Lord Justice Beatson,Mr Justice Miting |
Judgment Date | 20 October 2015 |
Neutral Citation | [2015] EWHC 3312 (Admin) |
Date | 20 October 2015 |
Docket Number | CO/1793/2015 |
Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 3312 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Beatson
and
Mr Justice Mitting
CO/1793/2015
Mr Kevin Hill (of Hill Twine Solicitors, Dorset BH1 2EF) appeared on behalf of the Appellant
Mr Duncan Penny QC and Mr James Boyd (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
Tuesday 20 th October 2015
I will ask Mr Justice Mitting to give the first judgment.
The appellant is a trader who trades under the name Dorset Militaria and British Bobby from premises in Dorset. On 19 th September 2013 search warrants were executed by police at his home and at his business premises. A considerable quantity of police caps, helmets, badges and bags were seized. He was charged with eight offences of possession of articles of police uniform, contrary to section 90(3) of the Police Act 1996. He was convicted on 5 th August 2014 of all offences by Bournemouth Magistrates' Court. He appealed to the Crown Court which dismissed his appeal on 5 th December 2014. He appeals by Case Stated against the decision of the Crown Court.
The facts were not and are not in dispute. The seized items were "articles of police uniform", as defined by section 90(4), "any article of uniform or any distinctive badge or mark … of identification usually issued to members of police forces … or anything having the appearance of such an article, badge, mark …" They were part of the appellant's stock in trade. He bought from a variety of sellers and sold to members of the public, mostly on-line. He carried out no checks on the identity of those who bought from him, or as to their purpose in doing so.
Section 90(3) of the 1996 Act provides:
"Any person who, not being a member of a police force or special constable, has in his possession any article of police uniform shall, unless he proves that he obtained possession of that article lawfully and has possession of it for a lawful purpose, be guilty of an offence …"
The appellant relied on the statutory defence. He accepted that the legal burden of proof lay upon him to establish that he had obtained possession of the articles lawfully and had possession of them for a lawful purpose, and that he had to do so on the balance of probabilities.
The prosecution and the Crown Court either accepted that he had obtained possession of the items lawfully or accepted that he had done so, subject only to the proposition that his subsequent possession of the articles might have converted his initial obtaining of them into unlawful obtaining.
The sole question which the Crown Court addressed, and which is determinative of this appeal, is whether or not the appellant had proved that he had possession of them for a lawful purpose. The Crown Court held that he had not. It made an undisputed finding that his purpose was commercial: to sell the articles at a profit. It observed, in my view correctly, that selling articles for a profit "is of course not inherently unlawful".
The prosecution submitted that the defence of lawful purpose was to be narrowly construed to protect "only those involved in the manufacture, transport and provision of uniforms to the Police Service and others who are lawfully authorised to wear or posses such uniforms". Mr Penny QC, who appears for the respondent today (but did not appear in the court below), no longer supports that way of putting the prosecution case as to what the appellant must prove.
The Crown Court's finding and ruling were set out in writing as follows:
"It is inescapable that the appellant has obtained these articles to sell on to any member of the public without restriction, although the unauthorised wearing of them is potentially criminal under section 90(2).
Although the appellant may wish and hope to sell these articles only to honest and sensible people who would neither misuse them nor run the risk of confusing members of the public, the nature of his business is such that he could not control or monitor the purchases from his business to eliminate or minimise the risk that purchasers might misuse the uniforms to deceive and thereby commit offences under subsections (1) and (2) of section 90 or for other improper purposes.
Moreover, the appellant has not established that he takes steps to reduce the risk by checking and warning his customers.
Accordingly, the appellant has not established that at the relevant time he had obtained possession of these articles for a lawful purpose."
The case correctly distils the question of law from those findings as follows:
"Was the court correct to read into the Police Act 1996, section 90(3), a requirement on the appellant to have made checks on the purchasers of the articles of police uniform in order to establish his lawful purpose of supplying them commercially?"
Mr Penny submits that the Crown Court reached the right conclusion for essentially the right reasons. He points out that subsections (1) and (2) of section 90 set the context for the interpretation of subsection (3). Section 90(1) makes it an offence to...
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