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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cooke v Director of Public Prosecutions [2015] EWHC 3312 (Admin) (20 October 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/3312.html Cite as: (2016) 180 JP 27, 180 JP 27, [2015] EWHC 3312 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Strand London WC2A 2LL |
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B e f o r e :
and
MR JUSTICE MITTING
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RONALD COOKE | Appellant | |
- v - | ||
DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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Mr Duncan Penny QC and Mr James Boyd (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
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Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020 7404 1400; Fax No: 0207 7404 1424
(Official Shorthand Writers to the Court)
____________________
Crown Copyright ©
Tuesday 20th October 2015
LORD JUSTICE BEATSON: I will ask Mr Justice Mitting to give the first judgment.
MR JUSTICE MITING:
"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.
"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."
"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?"
"The short point in the case is whether it is correct that a lawful object is simply the absence of criminal purpose. We are satisfied that that is not what the Act says. The Act requires that if you are found in possession or have made an explosive substance in circumstances in which there is a reasonable suspicion that there is no lawful object, it is an offence unless there was in fact some affirmative object which was lawful. That is, as it seems to us, an entirely unsurprising provision for a statute to make, given the enormous danger of explosive substances generally."
It is not therefore, submits Mr Penny, enough for the appellant to prove that he did not have the items in his possession for an unlawful purpose; he must prove positively what his purpose was. Mr Penny supports the Crown Court's decision that what the appellant had proved here was inadequate to discharge the legal burden on him of proving lawful purpose.
"Selling articles for a profit is of course not inherently unlawful, even if those articles could be misused for criminal purposes."
That was a proposition that was repeated in the Stated Case:
"In dismissing the appeal the court accepted that possession of the articles for commercial supply could amount to a lawful purpose."
Again, subject to the Crown's Court point about checking and warning, its own findings were that the appellant did not have, and had proved that he did not have, an unlawful mens rea when it found:
"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 Crown Court has accepted that the appellant had that hope and wish, and therefore by necessary implication has accepted that he did not have an unlawful mens rea and had proved that he did not have an unlawful mens rea.
"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."
The Crown Court's finding, in other words is that a seller in the ordinary course of a business for profit must prove that he has taken steps to satisfy himself that his customers are buying the items from him for a lawful purpose. Nothing to that effect is found in the language of section 90(3). There are problems with an approach not founded in the language of a statute of that kind. For example, what is the seller required to do "to reduce the risk"? Warning customers, as the Crown Court thought was incumbent on the appellant, is unlikely in the real world to put off those with an illicit purpose from buying items of police uniform. Armed robbers, who intended to use them for illicit purposes, could simply pretend that they wanted them for a fancy dress party. What could the seller do to satisfy himself that their stated intention was their true intention? What else could the appellant do (in the language of the Crown Court) to "check" his customers?
LORD JUSTICE BEATSON: I agree.