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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Garry v Crown Prosecution Service [2019] EWHC 636 (Admin) (19 March 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/636.html Cite as: [2019] WLR 3630, [2019] WLR(D) 164, [2019] 2 Cr App R 4, [2019] 1 WLR 3630, [2019] EWHC 636 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE CARR
____________________
Jolleh Garry | Appellant |
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| - and - |
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Crown Prosecution Service | Respondent |
____________________
Mr Peter Ratliff (instructed by CPS) for the Respondent
Hearing dates: 19th February 2019
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VERSION
OF JUDGMENT APPROVED
Crown
Copyright ©
Lady Justice Rafferty :
Crown
Court sitting at Inner London of his appeal against conviction on 3rd 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.
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.
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.
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.
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 forviolence
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"
"On the issue of reasonable excuse were we correct in lawa) 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
"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, ….—"
"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;"
Grounds of appeal
"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
v
G [2009] UKHL 13, in which regard the fact-finding tribunal enjoys a wide discretion. Additionally, where the weapon is a butterfly knife there will be a
very
heavy burden on the defendant to satisfy a court that he had it for such innocent purpose as to constitute a reasonable excuse: DPP
v
Patterson [2004] EWHC 2744 (Admin).
view
the court did no more than find that a Stanley knife, not offensive per se, was capable of being a tool, whereas a butterfly knife was offensive per se. That does not equate to a finding that a weapon offensive per se cannot be used as a tool.
Crown
Court.
v
Mott [1975] 62 Cr App R 71 where the Lord Chief Justice said: "In deciding whether a reasonable excuse is made out for the carrying of an offensive weapon in a public place the court should ask whether a reasonable man would accept that in the particular circumstances it was a proper occasion for carrying such a weapon."
vehicle.
v
Gregson (1992) 96 Cr App R 240.
v
DPP [2007 EWHC 2192 (Admin). The ruling in this case was not Wednesbury irrational let alone perverse.
violence.
violent
purpose.
Discussion
violence
had no relevance. The
Crown
did not even suggest he was lying or that he carried the butterfly knife for a criminal or
violent
cause. If all this were not more than sufficient to dispose of this ground, the Appellant was not even of good character: R
v
Hunter [2015] EWCA Crim 631. He was on 3rd September 2018 convicted of possession of cannabis and one of his cautions was for threatening or
violent conduct. Thus to give itself a good character direction would have obliged the court to depart from the standard position for good reason, which it could justify. The facts here came nowhere near prompting such an approach.
Conclusion
Mrs Justice Carr: I agree.