Lots from Blackstone

[cockroach]

Hi Ross (or any other legal eagles out there),
I am trying to find the court case (not the legislation) which defined what is a "folding pocket knife" (not the one which defined a lock knife).
I remember reading about a judge stating that a knife is only a folding pocket knife if it can be opened & closed with one hand.
This would be obviously be useful to find, because if I remember right, it could mean that most traditional slipjoint knives aren't folding pocket knives, but most decent one hand opening knives are.
Can anyone help???

[MushiSushi]

We weave a web like a spider on Mescalin



watching


:wink:

[dtalbot]

Hi Ross (or any other legal eagles out there),
I am trying to find the court case (not the legislation) which defined what is a "folding pocket knife" (not the one which defined a lock knife).
I remember reading about a judge stating that a knife is only a folding pocket knife if it can be opened & closed with one hand.
This would be obviously be useful to find, because if I remember right, it could mean that most traditional slipjoint knives aren't folding pocket knives, but most decent one hand opening knives are.
Can anyone help???
Now thats an odd definition, as I'm sitting here typing one handed happily opening locking unlocking and closing my opinel with the other, had I got my liner lock it'd be even easier!
David

[keith_beef]

Now thats an odd definition, as I'm sitting here typing one handed happily opening locking unlocking and closing my opinel with the other, had I got my liner lock it'd be even easier!
David

Through much use, the pivot on my N°8 Opinel has become very free; and since it's been kept dry for quite a while, the wood has not swollen to take up the slack. This means, :yikes: that I can flick it open :yikes:

One day, I'll get around to posting the "locking shut" ferrule for you all.


KKK.

[Ross]

spin-flex:
The Criminal Justice Act 1988, s. 139 states:

This offence applies to any sharply pointed article or article having a blade. Folding pocket knives are excluded unless the cutting edge of the blade exceeds three inches (7.62 cms). If the knife is a lock-knife, it will be covered by this offence, irrespective of whether the blade is actually locked open at the time (Harris v DPP (1992) 96 Cr App R 235).

I think this is the case you are after?

[stonehard]

I notided in the Times this weekend that some writer was telling us that "pocket Knives" were legal in the UK although the police were telling tourists not to carry them.Will try to find a link to it on line

[cockroach]

Thanks Ross,
No, Harris v DPP is not the case I was thinking of, this is the one where lock knives were stated not to be folding pocket knives.
I have definitely read a case (but can't now remember the name of it) where the judge defined a "folding pocket knife" as a knife capable of being opened & closed with one hand, ie if it can't be opened & closed with one hand, then it's not a "folding pocket knife".
I know this goes against other court decisions, but that's what the law is like, illogical & pedantic.
It would really help me out if someone could find the case I'm talking about. It does exist!

[Danzo]

Hi Spinflex

I will see if I can find any mention in Blackstones Criminal Practice, the bible of criminal law and procedure, although I need a more up to date copy; anyone got a spare £135?

:yikes:

I don't know of the case, but it sound like an interesting interpretation of the law as generally understood. As you say the law is riddled with illogicality!

;)

Danzo

[MushiSushi]

And the hip bone's connected to the thigh bone :bandit:

[Danzo]

And the hip bone's connected to the thigh bone :bandit:

Not in the case of 'Thighless' Geoff Hinchcliffe of Weston Super-mare, a singular medical marvel with nothing but ligaments connecting hip to knee. They also call him 'Wobbly Geoff', as you might imagine.

Danzo

[MushiSushi]

there's always an exception to the rule with you :rolleyes: ;)

[999]

Not in the case of 'Thighless' Geoff Hinchcliffe of Weston Super-mare, a singular medical marvel with nothing but ligaments connecting hip to knee. They also call him 'Wobbly Geoff', as you might imagine.

Danzo

Link?

:D

[landrovrbabe]

Hey guys
Just stumbled across your site after a google search and saw the posting re when is a folding knife a folding knife (well that was the gist - started by Spinflex as a qu to Ross) Anyway - I saw Danzo had written "Hi Spinflex
I will see if I can find any mention in Blackstones Criminal Practice, the bible of criminal law and procedure, although I need a more up to date copy; anyone got a spare £135?" and being as I happen to have a copy of that very book open at the relevant pages and indeed have it online infront of me too I thought I'd send you what Blackstone's has to say on the subject...

Hope this is some help... :biggthump Anyway I had better get back to my sorting out this indictment for my bar exams...:banghead: (which is how I stumbled across you guys in the first place) :yup: It doesn't directly answer the qu - but I cannot actually find such a case...

"Other Offences Involving Possession of Weapons

Having Article with Blade or Point in a Public Place

It is an offence triable either way, contrary to the CJA 1988, s. 139(1), for a person to have with him in a public place an article to which the section applies. The offence is an arrestable offence (PACE 1984, s. 24 and sch. 1A: see D1.13). Section 139 covers any article which has a blade or is sharply pointed except a folding pocket knife, but a folding pocket knife is covered if the cutting edge of its blade exceeds three inches. If a knife is secured in the open position by a locking device, it is not a folding pocket knife because it is not immediately foldable at all times by virtue of the folding process (Harris v DPP (1992) 96 Cr App R 235). Harris was followed in Deegan [1998] 2 Cr App R 121, where a challenge to the established meaning on the basis of what Ministers said in Hansard was rejected on the basis that what they said was not sufficiently clear. In Davis [1998] Crim LR 564, the Court of Appeal decided that determining whether an article fell within the CJA 1988, s. 139, is a matter of law for the judge to determine. There is no room for applying the decision in Brutus v Cozens [1973] AC 854, [1972] 2 All ER 1297, because the ‘issue was not the simple etymological meaning of the word “blade” ‘. The test is not whether the article is capable of causing injury, because the offence is limited to articles which ‘happen to have something that could be described as a blade’, so a common-sense test is to be applied that the article must be ‘within the same broad category as a knife or a sharply pointed instrument’. Thus the court allowed the appeal on the basis that a screwdriver does not fall within s. 139. It is submitted that this is an example of the sometime judicial desire not to use the approach in Brutus v Cozens (cf. the different approach in Manning [1998] Crim LR 198). As a general principle, a person has something with him or is in possession of it only if he knows that he has it with him or is in possession of the object in question. Thus the judge’s summing up, which may have made the jury think that a mere belief that a knife was somewhere in the accused’s van would be sufficient, was incorrect (Daubney (2000) 164 JP 519). Forgetfulness is, therefore, relevant to possession because the accused must either be aware of the presence of the knife in the vehicle when making the journey in the course of which he was stopped or be responsible for putting the knife where it was mislaid (Jolie (2003) 167 JP 313). See also B12.92.‘Public place’ includes any place to which, at the material time, the public have or are permitted access, whether on payment or otherwise.


Two defences are created by s. 139(4) and (5). First it is a defence for the accused to prove that he had good reason or lawful authority for having the article with him in a public place. It was held in Godwin v DPP (1992) 96 Cr App R 244 that the accused had to prove his good reason on a balance of probabilities so that merely providing an uncontradicted explanation is not necessarily sufficient (in the instant case, it was held that magistrates were entitled to disbelieve such a defence). Having considered the effect of Lambert [2002] 2 AC 545 (see F3.6), the Divisional Court in L v DPP [2003] QB 137, [2002] 2 All ER 854 decided that the reverse onus provision in relation to a good reason for having the article in s. 139 did not breach the ECHR, Article 6. The court took the view that a fair balance had been achieved in s. 139, which is readily distinguishable from that in the Misuse of Drugs Act 1971, s. 28 (see B20.19), as the prosecution has to prove that the accused knows that he had the relevant article in his possession. Further, there is a strong public interest in bladed articles not being carried in public without good reason and, taking into account Parliament’s decision, this requirement was not an improper rights infringement. The accused has to prove something within his own knowledge and the court can be expected to scrutinise the evidence with a view to deciding if a good reason existed. Usually the question will be whether the reason was a good one or not. And the limited sentence available was also relevant. See also Mathews 3 WLR 693.


In Bown (2003) The Times, 14 July 2003, it was decided that there are some limits, as a matter of law, to what can be a good reason. Therefore, it is for the judge to determine whether the explanation is capable of amounting to a good reason and, if so, it is for the jury to determine whether it did so amount. Since the words in s. 139(4) are ordinary words of the English language, it is only in the clearest of cases that the matter can be withdrawn from the jury. Further, the good reason must be related to both having the bladed article and having it with him in a public place. It could not, in this case, be a good reason to have a knife in public in the evening because the accused might want to harm himself with it some time the next day. That is simply too detached a set of facts and too detached a link to come within the statute. Whether wanting to inflict self-harm could ever be a good reason was not determined. Forgetfulness alone does not amount to a good reason (DPP v Gregson (1992) 96 Cr App R 240, confirmed in Manning and Hargreaves [2000] 1 Arch News 2); see also Jolie and B12.96.


For assistance on the meaning of ‘good reason’, the Court of Appeal in Emmanuel [1998] Crim LR 347 looked to the concept of ‘reasonable excuse’ under the Prevention of Crime Act 1953 (see B12.96). However, as Professor Sir John Smith points out ([1998] Crim LR 347), the defence in the 1996 Act was intended to be a narrower one than that of reasonable excuse in the 1953 Act. In Emmanuel the Court of Appeal decided that ‘good reason’ includes self-defence. Secondly, and without prejudice to the generality of the first, it is a defence for the accused to prove that he had the article with him for use at work, or for religious reasons, or as part of any national costume. Whether an article was for use for work (and therefore the other purposes also) is a matter to be determined in accordance with the approach in Brutus v Cozens, as the statute uses words of the ordinary English language. It is, therefore, a matter for the jury to determine having been so directed by the judge (Manning). See also Mohammed v Chief Constable of South Yorkshire Police [2002] All ER (D) 374 (Feb), [2002] EWHC 406 (Admin), where it was held that it cannot be a good reason that a person ultimately is going to use an article for a lawful purpose or that he requires ultimately something to be done to that article for a lawful purpose; there must be a sufficient connection in time between the possession and the carrying out of that purpose (M had the meat cleaver in his van for too long for the purpose of having it sharpened, which could otherwise have been a good reason). It may well be that there is good reason for following the approach in Brutus v Cozens in this case on the basis that there is no special meaning required for the terms of the defence, whereas whether the article falls within the offence in the first place does not warrant application of that approach (see Deegan) but perhaps only because of a fear that juries might apply the offence too widely to such items as screwdrivers. In Giles [2003] All ER (D) 68 (Feb), [2003] EWCA Crim 1287, it was held that a person must have a specific good reason for having the item in his possession. It is not enough, where the item has a blade satisfying s. 139, that he might think of using part of it, say the corkscrew.


The offence is punishable, on summary conviction, with imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both and, on conviction on indictment, to a term of imprisonment not exceeding two years or a fine or both (CJA 1988, s. 139(6)).


When dealt with summarily, the Magistrates’ Courts Guidelines (2000) are the same as those for possession of an offensive weapon (see B12.87) except that ‘very dangerous weapon’ does not appear in the list of aggravating factors for this offence.


In Datson [1999] 1 Cr App R (S) 84, the offender was in a pub when he was seen to transfer a knife from his bag and put it inside his jacket. The police were called. The offender claimed that he had found the knife when removing belongings from his former matrimonial home. The Court of Appeal said that, in light of the guilty plea and the offender’s relatively good record, the appropriate sentence was probably a community service order. Since the offender had served three weeks of his two-month prison sentence, a conditional discharge was substituted. In Baldwin [2000] 1 Cr App R (S) 81, the offender was arrested by a store detective on suspicion of shoplifting. When the police were called, the offender handed over a kitchen knife with a five-inch blade, which had been concealed in his sock. The offender pleaded guilty to an offence under s. 139, but claimed that he was carrying the knife for his own protection. He was addicted to drugs, had a bad record for offences of dishonesty, but no previous convictions for carrying a weapon. The Court of Appeal reduced the prison sentence of 18 months to one of six months. See further B12.87.

[999]

Wow! Anyone care to translate? Thanks landrovrbabe for the info-that was very public spirited of you.
Good luck with your exams :D

[Ross]

WOW!! Thanks for posting that, the most detailed explanation by far. Raises alot of questions and answers alot of them too.

[Colin KC]

Well hi Landrovrbabe & welcome to BB (I'd give you some reputation points for taking the time to type out all that stuff if I knew what it achully meant;))

BTW, if you REALLY are a Babe, keep a careful eye on both Five-oh (Danzo) & Mushy (mushisushi), they'll REALLY test ya:rolleyes:


Welcome agin :newbie::D

[Danzo]

Thank you Landrovrbabe!

:biggthump

And if you can wear that dress and those heels whilst analysing Blackstone you are a better girl than me!

;)

Welcome on board, ignore Colin, he wears strange underwear.

:approve:

Danzo

[ANDYLASER]

Greetings and thanks for that. My head hurts now. Hopefully Danzo will translate and summarise for us.

[ANDYLASER]

Did I see "self defence as reasonable grounds" or is my head still confused?

[999]

"For assistance on the meaning of ‘good reason’, the Court of Appeal in Emmanuel [1998] Crim LR 347 looked to the concept of ‘reasonable excuse’ under the Prevention of Crime Act 1953 (see B12.96). However, as Professor Sir John Smith points out ([1998] Crim LR 347), the defence in the 1996 Act was intended to be a narrower one than that of reasonable excuse in the 1953 Act. In Emmanuel the Court of Appeal decided that ‘good reason’ includes self-defence"

Care to share your thoughts on this Danzo? I must admit this sets a precedent at odds with what I perceived to be the Law.

[Ross]

I had to re-read it a few times but I think what the court was getting at was that in that particular case, self defence was good reason. Maybe the defendent had established a case surrounding being bullied or repeatedly attacked or something.

[ANDYLASER]

Thank you Landrovrbabe!

:biggthump

And if you can wear that dress and those heels whilst analysing Blackstone you are a better girl than me!

;)
:approve:

Danzo

Surely all girls, are a better girl than you.

[stonehard]

god you guys are just bird dogs.
even the smell of a women gets you guys on heat.

" Hi Landy I'm Stoney "

[landrovrbabe]

Of course alot of it is fairly gobbledegooky - but hey if it may help... don't hesitate to ask if you want any more of Blackstones copied and pasted... ...oh how I loooooooooove to breach those copyright laws... hehehehe ;o)

[landrovrbabe]

Hi there Boys

"And if you can wear that dress and those heels whilst analysing Blackstone you are a better girl than me!"
Heels are def the best thing to wear when reading Blackstones... especially ludicrously high ones... that way the agonising pain of standing in them stops the brain going numb reading all that gibberish....

Re - "BTW, if you REALLY are a Babe..."

Nah... actually I'm an ugly egit called Bob... with BO... and bad breath... and a flatulence problem ... :wink:

Later alligators...

Mucho mwahs
landrovrbabe

PS If I can be of any assistance with any of the Blackstones stuff - just let me know - on the other hand it seems like you've got a pretty impressive knowledge base to draw on already...

[narsil]

Welcome to the forums...well you're certainly not afraid to get stuck straight in...I think I may well frame that post :)

I belive that several of our members like to wear heels while forging... :wink:

[999]

Nah... actually I'm an ugly egit called Bob... with BO... and bad breath... and a flatulence problem ... :wink:

Can I have your phone number? :rolleyes:

[cockroach]

Landrovrbabe,
I'm impressed with the effort you've put in there.
You raised some interesting points - especially the anomaly about self defence, where generally you cannot carry ANYTHING for self defence, except for the stated case where you can! (I believe there is another stated case where a shopkeeper in a riot situation was acquitted of posession of PETROL BOMBS on the grounds of self defence!).
Shame you couldn't find the case I originally mentioned at the start of this post, I have definitely seen it, I'm not going mad.
Someone must be able to find it for me???

[landrovrbabe]

Hi Spinflex... OOO OOO OOO <general jumping around with excitement>
I think I've found the case you're looking for... maybe... ..although it may not be... ...it's amazing what I'll do rather than the actual work I'm supposed to be doing... ;) :rolleyes:
Is this the one?

McAuley v Brown
Also known as:
McAuley v Mulholland
(HCJ) High Court of Justiciary
27 March 2003

2003 S.L.T. 736
2003 S.C.C.R. 326
2003 G.W.D. 16-506

Summary
Subject: Criminal law

Keywords: Knives; Offensive weapons; Scotland

Catchphrases: offensive weapons; carrying knives; folding pocketknife; knife with broken locking mechanism preventing blade being locked in extended position; Scotland

Abstract: M was tried on summary complaint with a contravention of the Criminal Law (Consolidation) (Scotland) Act 1995 s. 49(1). He was found in possession of a knife equipped with a locking mechanism which was not in working order and which could not lock the blade in the extended position. The sheriff repelled a submission that there was no case to answer and convicted M, who appealed, arguing that the knife was a folding pocketknife.
Summary: Held, allowing the appeal and quashing the conviction, that (1) it was the presence of a device or mechanism which had the actual effect of locking the blade of the knife in the open position that prevented a knife from being a folding pocketknife, and (2) a broken lock knife, the locking mechanism of which was inoperative, was a folding pocketknife, since it was immediately foldable and could be carried in a pocket, and as the article was a folding pocketknife with a blade the cutting edge of which was less than three inches in length, s. 49 did not apply.

Judge: Lord Macfadyen, Lord Carloway, Temporary Judge Sir GH Gordon Q.C.

Counsel: For M: Shead. For B: R Anthony, Q.C., AD

Solicitor: For M: Adam Bevan & Co. For B: N McFadyen, Crown Agent

[landrovrbabe]

Me again... :p

And this is the only other case I can find (relevant to Spinflex's orginal qu) and essentially the law lords confirmed Harris v DPP - but if you can bear to read it, it may be that the case was the one you were thinking of...
Most interesting chunk being the section in red... (what follows is obviously an extract to save you the pain of the full thing)

*272 Stewart v. Friel


High Court of Justiciary

HCJ Appeal

The Lord Justice General (Hope), Lords Mayfield and Sutherland

26 April 1995


Justiciary--Statutory offence--Carrying knife in public place--"Folding pocketknife"--Knife with catch preventing blade being always and immediately folded back into handle--Whether "folding pocketknife"--Carrying of Knives etc (Scotland) Act 1993 (c 13), s 1 (3).


OPINION OF THE COURT.



Counsel for the appellant did not seek to challenge the sheriff's view that arguments about the onus of proof were irrelevant in this case. In our opinion he was right not to do so, as there was ample evidence about the physical characteristics of the knife, which was produced in court and was available for examination to supplement and explain the witness's evidence. Nor did he dispute that this was an article which had a blade which was sharply pointed within the meaning of subs (2). The question to which he addressed his argument was whether this was a folding pocketknife within the meaning of subs (3), there being no dispute that its blade did not exceed three inches.

He submitted that, as the expression "folding pocketknife" was not defined in the Act, it fell to be given its ordinary meaning. He referred to the definition of "pocket-knife" in the Oxford English Dictionary, which is that this expression means "A knife with one or more blades which fold into the handle, for carrying in the pocket." He said that all these elements were satisfied in this case, as the blade of this knife was capable of being folded into the handle for carrying in the pocket, and there was nothing in this definition which suggested that the presence or absence of a locking device made any difference to the question whether, applying ordinary common sense, it could be described as a pocketknife.

He then drew our attention to Harris v DPPin which it was held that, for the purposes of s 139 of the Criminal Justice Act 1988, a "folding pocketknife"is a knife which is readily and immediately foldable at all times simply by the folding process, and that lock knives were not folding pocketknives within the meaning of that section. He invited us to hold that *274 that case was wrongly decided, on the ground that there was no reason to think that a knife was dangerous simply because the blade could be locked in the open position. He said that the blade might be safer to use if it was locked, and that the locking device was simply there as a matter of convenience for the user.

The learned advocate depute's response to this argument was that it was clear, as a matter of common sense, that a knife was not a folding pocketknife if it had a mechanical device to prevent the blade from being folded unless that device was operated. He submitted that in any event Parliament must be presumed to have intended, having used the expression "folding pocketknife" in s 1 (3) of the 1993 Act, that this phrase should receive the same interpretation as had been placed upon it in Harris v DPP, as that was a recent decision relating to analogous legislation which Parliament would have had in contemplation when the 1993 Act was being framed. On this view it was not necessary to consider whether the decision in that case was correct, but it was a decision about the meaning of the phrase which made good sense. It was at least not so obviously unsound that we should not follow it for the purpose of placing a reasonable interpretation upon the same phrase in the 1993 Act.

In our opinion a knife which has a blade which can be fixed in the open position by a locking device is not a folding pocketknife within the meaning of s 1 (3) of the 1993 Act. The exception which is described in that subsection is contained in the two words "folding pocketknife". It is not enough that the knife can be placed in the pocket, or that the blade can be folded to enable it to be placed there. It must be a folding pocketknife. It cannot be described as a knife of that kind if it has a device which is designed, until it has been overcome, to prevent the blade from being folded. That device provides the knife with an additional feature which is not mentioned in the subsection. The description which it would be natural to give to a knife of that kind is that it is a lock knife or a locking knife, to distinguish it from a knife whose blade is always and immediately foldable.

This interpretation of the expression "folding pocketknife" is consistent with what was decided in Harris v DPP. The Court of Appeal was dealing in that case with the provisions of s 139 of the Criminal Justice Act 1988 which, so far as relevant, is in these terms: [his Lordship quoted the terms of s 139 (1)-(3)and continued:]

The article in question in that case was a knife whose blade, when fully opened, was immediately locked in that position. In order to fold it back into the handle it was necessary to activate a button triggered mechanism. The nature of the locking device was not decisive in that case. It was sufficient that the blade could be locked so that, when locked, it became in effect a fixed blade knife. McCowan LJ said at [1993] 1 WLR, p 87E-F: "In my judgment, the right approach to the matter is this. To be a folding pocketknife the knife has to be readily and indeed immediately foldable at all times, simply by the folding process. A knife of the type with which these appeals are concerned is not in this category because, in the first place, there is a stage, namely, when it has been opened, when it is not immediately foldable simply by the folding process and, secondly, it requires that further process, namely, the pressing of the button."

We respectfully agree with this approach. Had there been any doubt on the matter there would have been much to be said for the view that, in this case, as the wording of s 1of the 1993 Act is so close to that of s 139 of the 1988 Act, Parliament must be taken to have had in view the decision in Harris v DPPin deciding to repeat the phrase "folding pocketknife" , especially as that decision was reported only a few months before the Carrying of Knives etc (Scotland) Bill was first introduced: see Barras v Aberdeen Steam Trawling and Fishing Co. While that doctrine must be applied with caution, as was emphasised in Haigh v Charles W Ireland Ltd by Lord Diplock at 1974 SC (HL), p 40; 1974 SLT, p 42, and Lord Kilbrandon at p 41 (p 43), the present case is one where one could be reasonably confident that it was appropriate. But we do not find it necessary to rely on this point, as it appears to us to be clear that a knife whose blade is equipped with a locking device cannot be said to be a folding pocketknife within the ordinary meaning of these words.

For these reasons we shall answer the question of law in the affirmative and refuse the appeal.

[cockroach]

Even more impressed!
Still not the one I'm looking for though (sorry!), your quotation is expanding more on the definition of a lock knife, but the case I've seen refers to whether the knife can be opened & closed with one hand (& doesn't mention any locking mechanism) - I'm sure the judge's decision was that if it can't, then it's not a "folding pocket knife".
This interests me, because it would make your average Swiss Army Knife illegal to carry without good reason.
I've got the legal "experts" where I work looking into it, I'll be straight back on here with any news.

[landrovrbabe]

Oh knickers... hope your guys find it... although am sure that during the wee small hours tonight when I should be finishing off this law thing (partly involving knives) I will find myself looking for your case... ;)

Ciao for now

[Ross]

Criminal Law (Consolidation) (Scotland) Act 1995 s. 49(1) = Criminal Justice Act 1988, s. 139(1). Just in case anyone was wondering.

[Little claw]

Excellent thread! Definite "add to favourites"

Particularly interested in the implications of this:

>>In Emmanuel the Court of Appeal decided that ‘good reason’ includes self-defence"

[Ross]

LC - as I said above: I had to re-read it a few times but I think what the court was getting at was that in that particular case, self defence was good reason. Maybe the defendent had established a case surrounding being bullied or repeatedly attacked or something.
Not sure if this is the correct interpretation but I think it is the likely one.

[landrovrbabe]

Little Claw - Ross is bang on the money - I can't find the specific details of the 'Emmanuel' case for you - but self defence being argued successfully is only ever going to happen in very very specific circumstances...
If it's any help here is the Blackstones section (see below) on reasonable excuse...

On which note I'll tootle off leave and you all in peace - I shouldn't be here by rights anyway I guess (although it's been great fun seeing all your posts and getting responses to mine!), but I don't really know enough about knives to truly be allowed to be here - although have always had penknives in my pocket... since I was a little squirt/tomboy... and was besotted with a SOG knife I was given in my teens (the boys had leathermans... but I liked my SOG... ) but in all seriousness I think you guys are somewhat more into all this knife stuff and rather more knowledgeable... ... so I'm completely out of my depth... ...oh the ignominy of it all... ;) hehehehe

Smoochy mwahs
Landrovrbabe
PS I may not know a huge amount about knives but hey... my Landrover rocks! :biggthump


Reasonable Excuse
B12.96
In Densu [1998] 1 Cr App R 400, the Court of Appeal held that the defence of reasonable excuse arises only once it is established that the accused was in possession of an offensive weapon. A reasonable excuse does not then arise if the argument is that the accused did not know that what he was carrying was an offensive weapon. Any other approach would defeat the statutory purpose. The court also held that ‘the cases where the defence of reasonable excuse will be available are restricted’. A number of reasonable excuses have been recognised. The obvious form is where a person has an article properly in his possession for a legitimate purpose, such as the penknife in Humphreys [1977] Crim LR 225, and the workman’s hammer in Ohlson v Hylton [1975] 1 WLR 724, [1975] 2 All ER 490 (see B12.91).

A frequently recurring argument has been that it amounts to a reasonable excuse that the weapon is carried for the purposes of self-defence in case the carrier should be attacked. The problem with this argument is that the carrier is likely to be permanently or constantly carrying the weapon because of some constant or enduring (supposed or actual) threat of danger to the carrier. Carrying of a weapon simply as a general precaution was thought by the Divisional Court in Evans v Hughes [1972] 1 WLR 1452, [1972] 3 All ER 412, following Evans v Wright [1964] Crim LR 466, and Grieve v Macleod [1967] Crim LR 424, to be insufficient to establish a reasonable excuse, and this approach has recently been confirmed by the Court of Appeal in Densu. What would be acceptable would be where the carrier was in anticipation of imminent attack and was carrying the weapon for his own personal defence against that specific danger. The decision in Evans v Hughes has consistently been followed; see Peacock [1973] Crim LR 639, Bradley v Moss [1974] Crim LR 430, Bryan v Mott (1975) 62 Cr App R 71. Evans v Hughes was followed by the Divisional Court in Malnik v DPP [1989] Crim LR 451. Bingham LJ giving the judgment of the court said that ordinarily one cannot legitimately arm oneself with an offensive weapon with which to repel unlawful violence when one has deliberately and knowingly brought about the situation in which such violence was liable to be inflicted. Bingham LJ went on to state that the position was quite different in the case of those to whom society has entrusted the responsibility for enforcing the law, and indeed there is a difference in the case of those such as security guards who are handling valuable property in the course of their ordinary occupation and have reason to fear attack.
It would seem that the courts strive to permit a person to have a reasonable excuse where there is ‘good’ reason for the possession of the offensive weapon. So in Southwell v Chadwick (1986) 85 Cr App R 235, the Court of Appeal accepted that it was a reasonable excuse for a person to have in his possession a machete knife in its scabbard and a catapult for use for killing grey squirrels, so that he could obtain food for his wild birds which he kept under licence. Also in Callaghan (30 October 1987 unreported), the Court of Appeal was of the view that the jury should have been left to consider whether the accused had a reasonable excuse for being in possession of a machete, which he used in a fight, when his claim was that he had bought it for domestic use and was taking it back to his home after having lent it to a friend. Even where a weapon offensive per se was carried, but merely as a theatrical property as part and parcel of fancy dress worn by a person going to or from a fancy dress party, the Court of Appeal accepted that the innocent motive could amount to a reasonable excuse (Houghton v Chief Constable of Greater Manchester (1987) 84 Cr App R 319). The accused was dressed in a police uniform and was carrying a truncheon and was held, on the facts, to have a reasonable excuse. In Densu the Court of Appeal thought that the following example provided by May LJ in McCalla (1988) 87 Cr App R 372 might amount to a reasonable excuse:
if someone driving along a road where earlier there had been a demonstration were to see and pick up a police truncheon which had obviously been dropped there and were to put it into the boot of his car, intending to take it to the nearest police station, and then were to be stopped within a few minutes, he would have a reasonable excuse for having the truncheon with him in the boot of the car.
In Glidewell (1999) 163 JP 557, the Court of Appeal held that ‘depending on the circumstances of the particular case, forgetfulness may be relevant to whether or not a defendant has a reasonable excuse for possession of an offensive weapon’. Factors that might be relevant are (in relation to the facts of the instant case): the accused did not introduce the weapons into his car; the weapons had been in the car for a relatively short period of time; the accused was very busy on the night in question. As these all bore on the question of forgetfulness, they were matters for the jury. See also Ivey (15 August 2002 unreported, CA), where forgetfulness was relevant to the reasonable excuse that D had put the knife in his pocket as part of moving his possessions from one house to another (the knife having been bought as an ornament) and he had had his possessions in his car for two weeks and had forgotten about the knife.) See also Lorimer [2003] All ER (D) 61 (Feb), [2003] EWCA Crim 721. In R (Bayliss) v DPP [2003] All ER (D) 71 (Feb), [2003] EWHC 245 (Admin), the Divisional Court accepted that there may be circumstances where forgetfulness is relevant to the defence of good reason, but it is not relevant to having the weapon with him (as to which see B12.92). Simple forgetfulness would not be sufficient to amount to a reasonable excuse, as is made clear in Glidewell (and see Gregson (1993) 96 Cr App R 240 at B12.97 and Hargreaves (1999) unreported), but factors causing forgetfulness such as an illness or the taking of medication would be relevant.

[narsil]

You're certainly thorough...I hadn't realised that self defence was ever a reasonable excuse, just goes to show the value of a new perspctive... and a flagrant (albeit healthy) disregard for copryright :biggthump

It seems that the judiciary has rather more common sense than the legislature, which is at last a bit reassuring.

Feel free to stick around, all are welcome regardless of expertise. To be honest we mainly talk utter nonsense to each other in the early hours of the morning most of which is only tenuously related to knives, previous subjects have included, castles, elder gods, crayons, desert islands and one other thing keeps cropping up, can't quite remember what it is at the moment seem to recall it begins with V... :)

[999]

All are welcome landrovrbabe :D Only an interest in knives helps...

[Martyn]

You're certainly thorough...I hadn't realised that self defence was ever a reasonable excuse...


I dont think it is a reasonable excuse for general purposes. I think what landroverbabe and Ross meant what that in that particular set of circumstances, the Judge felt that carrying a knife for the defence of the defendants "self" was excusable. That's different from self defence being a generally reasonable excuse ...if you see what i mean.

Oh, BTWE, welcome landroverbabe - please continue your contributions, they're both informative and fascinating.... :)

Spinflex, can you remember anything more about the case? It may help to track it down.

[keith_beef]

Reasonable Excuse
B12.96
In Densu [1998] 1 Cr App R 400, the Court of Appeal held that the defence of reasonable excuse arises only once it is established that the accused was in possession of an offensive weapon. A reasonable excuse does not then arise if the argument is that the accused did not know that what he was carrying was an offensive weapon. Any other approach would defeat the statutory purpose. The court also held that ‘the cases where the defence of reasonable excuse will be available are restricted’. A number of reasonable excuses have been recognised. The obvious form is where a person has an article properly in his possession for a legitimate purpose, such as the penknife in Humphreys [1977] Crim LR 225, and the workman’s hammer in Ohlson v Hylton [1975] 1 WLR 724, [1975] 2 All ER 490 (see B12.91).

Which seems to imply that if you get charged with carrying an offensive weapon, the thing to definitely NOT do, is argue that it is not a weapon.

After having explored all the other possibilities, of course, to avoid having to go to court to argue the point and justify carrying the item in question.




A frequently recurring argument has been that it amounts to a reasonable excuse that the weapon is carried for the purposes of self-defence in case the carrier should be attacked. The problem with this argument is that the carrier is likely to be permanently or constantly carrying the weapon because of some constant or enduring (supposed or actual) threat of danger to the carrier. Carrying of a weapon simply as a general precaution was thought by the Divisional Court in Evans v Hughes [1972] 1 WLR 1452, [1972] 3 All ER 412, following Evans v Wright [1964] Crim LR 466, and Grieve v Macleod [1967] Crim LR 424, to be insufficient to establish a reasonable excuse, and this approach has recently been confirmed by the Court of Appeal in Densu. What would be acceptable would be where the carrier was in anticipation of imminent attack and was carrying the weapon for his own personal defence against that specific danger. The decision in Evans v Hughes has consistently been followed; see Peacock [1973] Crim LR 639, Bradley v Moss [1974] Crim LR 430, Bryan v Mott (1975) 62 Cr App R 71. Evans v Hughes was followed by the Divisional Court in Malnik v DPP [1989] Crim LR 451. Bingham LJ giving the judgment of the court said that ordinarily one cannot legitimately arm oneself with an offensive weapon with which to repel unlawful violence when one has deliberately and knowingly brought about the situation in which such violence was liable to be inflicted. Bingham LJ went on to state that the position was quite different in the case of those to whom society has entrusted the responsibility for enforcing the law, and indeed there is a difference in the case of those such as security guards who are handling valuable property in the course of their ordinary occupation and have reason to fear attack.

So the driver of an armoured van transporting money or valuables can legitimately carry a weapon with which to defend himself against unlawful violence, since he has not gone out seeking confrontation.

However, if I look out of my kitchen window and see somebody breaking into my car and decide to go and put a stop to it, I had better not pick up a rolling pin, because I am going out seeking the confrontation which is the cause of the unlawful violence against me?

I hope that in the phrase


"ordinarily one cannot legitimately arm oneself with an offensive weapon with which to repel unlawful violence when one has deliberately and knowingly brought about the situation in which such violence was liable to be inflicted"

the use of the word "ordinarily" would demonstrate that attempted theft of my proprty, seen through the kitchen window and my intervention would not be seen as an "ordinary" event.



It would seem that the courts strive to permit a person to have a reasonable excuse where there is ‘good’ reason for the possession of the offensive weapon. So in Southwell v Chadwick (1986) 85 Cr App R 235, the Court of Appeal accepted that it was a reasonable excuse for a person to have in his possession a machete knife in its scabbard and a catapult for use for killing grey squirrels, so that he could obtain food for his wild birds which he kept under licence. Also in Callaghan (30 October 1987 unreported), the Court of Appeal was of the view that the jury should have been left to consider whether the accused had a reasonable excuse for being in possession of a machete, which he used in a fight, when his claim was that he had bought it for domestic use and was taking it back to his home after having lent it to a friend. Even where a weapon offensive per se was carried, but merely as a theatrical property as part and parcel of fancy dress worn by a person going to or from a fancy dress party, the Court of Appeal accepted that the innocent motive could amount to a reasonable excuse (Houghton v Chief Constable of Greater Manchester (1987) 84 Cr App R 319). The accused was dressed in a police uniform and was carrying a truncheon and was held, on the facts, to have a reasonable excuse.

Ah, now that is good. Ross and I (and a few others on here) now have two good reasons for carrying a Sgean dhu! ;)

Not only on the grounds of National Costume, but also Fancy Dress! :)

But I wonder about the Policeman's Uniform bit... I suppose it should be a period costume, Dixon of Dock Green, maybe, so as to avoid being charged with "impersonating a police officer".

Probably not a good idea to go to a fancy dress party in Moss Side dressed up as a member of a special Armed Response Team, either.



KKK.

[ANDYLASER]

Wow, much work from Landrovrbabe. :biggthump
Mmmmm babe with knives and landrover. :smlove2:
I'm off for a cold shower. :banghead:

[Martyn]

....and she's gonna be a barrister.

You name isn't Lara is it?

Just kidding. ;)

[ANDYLASER]

....and she's gonna be a barrister.

You name isn't Lara is it?

Just kidding. ;)

That'll upset Danzo. Competition on the legal front.

[Ross]

They could sue each other perhaps?

[landrovrbabe]

Evening Chaps,

Thanks for the posts - you all seem a good laugh - I think I'll stick around after all... who knows - maybe even pick up some very useful knife info and lingo... ;)

Just a quickie - Spinflex - re your elusive case - do you remember if you read about it or heard about it? If you heard about it - where - radio/TV/word of mouth/something else entirely? If read it - was it a newspaper? If so any chance you recall which one? Was it referred to in an article or a law report in its own right? Do you remember vaguely when you heard/read about it? Any partic distinguishing features of the case? (ie useful keywords for searching databases)

Right I'll skiddaddle now - loads of work to do before tomorrow... :noggin:

;)

[Danzo]

Dammit, I hate being off forum! Mrs Danzo seems to think that bathing Sammi and feeding her is somehow gratifying, but instead I miss all of this!

;)

Many thanks Ms Babe, you have updated my Blackstone quite well; you wanna post the whole offensive weapons section in?

:approve:

Good luck with the Bar Exams. You are lucky that Ophidian is away somewhere hot and sticky hunting snakes as he would certainly offer to let you look at his landrover if you showed him yours...........

:rolleyes:

Stick around though; a SOG of any type is a good starting point! You can sign up to what we call 'passarounds' and get to play with some different knives for a week or so then post them on to the next person.

:thanks: for some very valuable input,

Danzo

[landrovrbabe]

Thanks for the good luck wishes Danzo...
Come 6pm tomorrow I am all done and dusted with bar exams :biggthump oh joy oh joy oh joy < little dance around the room and hopping up and down in childlike excitement> :D !
But will also no longer have online access to Blackstones (and copying and pasting is infinitely preferable to actually copytyping... ...yeuch) so here you go, whilst I still can(!), here is offensive weapons in its full glory:
;)

Offensive Weapons

Definition

B12.84

Prevention of Crime Act 1953, s. 1

(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.

Procedure

B12.85

This offence is an arrestable offence (PACE 1984, s. 24 and sch. 1A: see D1.13). It is triable either way (Prevention of Crime Act 1953, s. 1(1)).


Indictment


B12.86




Statement of Offence


Having an offensive weapon in a public place contrary to section 1 of the Prevention of Crime Act 1953


Particulars of Offence


A on the . . . day of . . . had with him in a public place, namely . . . an offensive weapon, namely . . . without lawful authority or reasonable excuse



‘Time’ and ‘place’ are material elements of the instant offence which must, therefore, be stated with accuracy in the particulars of the offence (Allamby [1974] 1 WLR 1494, [1974] 3 All ER 126).


Where the weapon may be offensive under two of the categories of offensive weapons, the indictment need not contain two counts (Flynn (1985) 82 Cr App R 319).


Sentencing Guidelines



B12.87



The maximum penalty is: on conviction on indictment, imprisonment for a term not exceeding four years or a fine or both; on summary conviction, a term of imprisonment not exceeding six months, or a fine not exceeding £5,000 or both (Prevention of Crime Act 1953, s. 1(1).


When dealt with summarily, the Magistrates’ Courts Guidelines (2000) indicate the following:



Aggravating Factors ±


For example location of offence; group action or joint possession; racial aggravation; people put in fear/weapon brandished; planned use; very dangerous weapon; offence committed on bail; relevant previous convictions and any failures to respond to previous sentences.


Mitigating Factors ³


For example acting out of genuine fear; no attempt to use; not premeditated.


Guideline: Is it so serious that only custody is appropriate?



The Court of Appeal issued sentencing guidelines for this offence in Celaire [2003] 1 Cr App R (S) 610, based on advice from the Sentencing Advisory Panel. Lord Justice Rose, giving the judgment of the Court, said that the task of issuing guidelines was not made easier by the fact that the maximum penalty for this offence was four years, but the maximum penalty for possessing an article with a blade or point in a public place (see B12.97) was two years. For avoidance of doubt, the judgment related to offences of possessing an offensive weapon with a four-year maximum. In determining the appropriate sentence it was necessary to consider three interlinking factors: (a) the offender’s intention in committing the offence, (b) the circumstances of the offence, and (c) the nature of the weapon involved. As to intention, specific factors that would aggravate the offence are: planned use of the weapon to commit or threaten violence or to intimidate, if the offence was motivated by hostility to a minority individual or group, commission of the offence while the offender was under the influence of drink or drugs, and commission of the offence in the course of carrying out another crime. As to the circumstances of the offence, specific factors that would aggravate the offence are: its commission on school premises, or in a hospital or other place where vulnerable people are likely to be found, or at public gatherings, or on public transport, on in licensed premises. By itself the nature of the weapon would not be a prime determinant of sentence, since the use of a relatively less dangerous weapon to threaten or create fear would be at least as serious as possession of a more dangerous weapon where no attempt had been made to use it. The nature of the weapon could, however, assist the court in drawing inferences as to the offender’s intention, such as where a weapon which is offensive per se has been carried, or a weapon has been designed or adapted to cause serious injury. Mitigation might be found if the weapon was being carried on a temporary basis, and might also arise from personal factors, co-operation with the police, and a timely guilty plea. In relation to an adult offender of previous good character, the custody threshold would almost invariably be passed where there was a combination of dangerous circumstances and use of the weapon to threaten or cause fear. Alternatively, there would be cases (no threat had been made and the weapon was not particularly dangerous), where the custody threshold might not be passed and a community sentence towards the upper end of the range might be appropriate. Where the weapons offence was ancillary to another more serious offence, concurrent sentences would normally be appropriate; if the weapons offence was distinct and independent from the other offence, a consecutive sentence was usually called for, subject to the usual considerations of totality.


Meaning of ‘Offensive Weapon’


B12.88



Prevention of Crime Act 1953, s. 1


(4) In this section ‘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 or by some other person.



It is not necessarily easy to establish whether a particular article is an offensive weapon. The definition provided above means, according to the Court of Appeal in Simpson [1983] 1 WLR 1494, [1983] 3 All ER 784, that there are three possible categories of offensive weapon:



(a) an article made for use for causing injury to the person, commonly known as weapons offensive per se;



(b) an article adapted for use for causing injury to the person;



(c) an article which the person carrying it intends to use for the purpose of causing injury to the person.



In many cases little or no distinction is drawn between the first two categories, but there is a very clear distinction between the first two and the third categories. It is the requirement that the prosecution must prove the intent to injure in cases involving weapons in the third category.


Weapons Offensive per se


B12.89



It has been held that a flick-knife is an offensive weapon per se (Lawrence (1971) 57 Cr App R 64, Allamby [1974] 1 WLR 1494, [1974] 3 All ER 126, and Gibson v Wales [1983] 1 WLR 393, [1983] 1 All ER 869). The Court of Appeal held in Simpson [1983] 1 WLR 1494, [1983] 3 All ER 784 that trial judges are entitled to take judicial notice of the fact that a flick-knife is an offensive weapon per se. Whilst, therefore, it is clear that a flick-knife is an offensive weapon, this will not be the case with all articles. Not even all knives are offensive weapons per se (Simpson, where it was held that not all sheath knives are offensive weapons; Patterson v PC 108D PK (1984) The Times, 21 June 1984, where it was held that a lock knife is not an offensive weapon per se). In a decision on the Aviation Security Act 1982, s. 4(2)(c), it was held that a butterfly knife is necessarily an article for use for causing injury to the person and judicial notice can be taken of that fact (DPP v Hynde [1998] 1 WLR 1222, [1988] 1 All ER 649, where the court referred to both the definition in the CJA 1988 and the decision in Simpson).


The Court of Appeal in the following cases was satisfied that the articles in question were offensive weapons per se. It remains to be seen whether trial judges may now regard it as determined that the following cases have decided that the items are offensive weapons per se, either by regarding the matter as one of which they may take judicial notice or by being bound by previous decisions. The judgments in both cases indicate no hesitation in stating that the weapons were offensive per se. However, against this must be weighed the consideration, referred to in the following paragraph, that the decision as to whether a weapon is offensive per se is one for a jury to take (see, in particular, the decision of the Court of Appeal in Williamson (1977) 67 Cr App R 35). It was held in Butler [1988] Crim LR 695, that a sword stick is a weapon, offensive per se. The trial judge had left the matter to the jury, but the Court of Appeal regarded this as, if anything, over generous. In Houghton v Chief Constable of Greater Manchester (1986) 84 Cr App R 319, it was held that a truncheon is an offensive weapon per se, in part because it does not contain per se any innocent quality. Where an article has no readily apparent use except to cause injury to the person, it is submitted that judicial notice may well be appropriate.


Where there is doubt as to whether an article is an offensive weapon per se, the deciders of fact must have their attention drawn to the statutory definition, but determining whether any particular article is such a weapon is a matter of fact (Williamson (1977) 67 Cr App R 35, Simpson [1983] 1 WLR 1494, [1983] 3 All ER 784, Humphries (1987) Independent, 13 April 1987). The conclusion by magistrates that a rice flail was an offensive weapon per se could not successfully be challenged, because it was legitimately reached in accordance with the evidence (Copus v DPP [1989] Crim LR 577).


If an article has an innocent purpose, which may have to be the main purpose for which it is produced, it will not be an offensive weapon per se. This follows from, for example, the cases on knives (see above), from Houghton v Chief Constable of Greater Manchester (1986) 84 Cr App R 319, from Petrie [1961] 1 WLR 358, [1961] 1 All ER 466, where it was held that an ordinary razor is not an offensive weapon per se, and from Humphreys [1977] Crim LR 225, where it was held that an ordinary penknife is not an offensive weapon per se.


Where the article is a weapon, offensive per se, there is no requirement on the prosecution that it be proved that the possessor also had an intention to use it to cause injury (Davis v Alexander (1970) 54 Cr App R 398, and Southwell v Chadwick (1986) 85 Cr App R 235). While the prosecution must prove that the accused had possession of the offensive weapon, they need not prove a specific intent to injure (see B12.91).


Weapons Adapted to Cause Injury


B12.90



Whether an article falls into this category is a decision of fact to be answered by the jury or magistrates (Williamson (1977) 67 Cr App R 35). The need for determination by either the jury or the magistrates was reaffirmed in Warne v DPP (3 June 1997 unreported), where the Divisional Court also made clear that the fact that the item was later used for a violent purpose did not determine the question of its earlier adaptation. It was not possible, in this case, to sustain the conclusion that the pick-axe handle, when it had lost its head, had, on the evidence available, been adapted for use for causing injury to the person. Experimentation with the article may assist the jury in determining whether it is an offensive weapon. If such experimentation is permitted, the Court of Appeal decided in Higgins (1989) The Times, 16 February 1989, that the experiment must take place in open court, when, of course, it is possible for counsel to address the issue. Clear examples of articles falling within this category are a bottle which is deliberately broken so that the jagged end can be pushed into the victim’s face (Simpson [1983] 1 WLR 1494, [1983] 3 All ER 784) and a potato with a razor blade inserted into it (Williamson).


It may be that the ‘injury to the person’ includes injury to the possessor of the weapon, i.e. self-inflicted injury. The decision of the Crown Court to this effect was not challenged in the Divisional Court in Bryan v Mott (1975) 62 Cr App R 71. On the other hand, the Crown Court sitting at Beverley took the view in Fleming [1989] Crim LR 71 that an element in the offence was injury to a person other than the possessor of the weapon. In Bryan v Mott, the court held that, even though the expressed intention of the accused (to commit suicide) was not unlawful, he had no reasonable excuse for having the article in a public place for that purpose.


Weapons Intended to be Used to Cause Injury


B12.91



In order for a weapon to satisfy this category, it is essential that an intention to cause injury to the person be proved. It is essential that the defendant have an intention to cause such injury at the time and place of the charge. It is not sufficient that he had the necessary intention at some earlier stage (Allamby [1974] 1 WLR 1494, [1974] 3 All ER 126).


The intention to cause injury to the person may apparently be satisfied by the intention to inflict injury on one’s self, but the authorities, weak as they are, conflict; see B12.90. It is essential that an intention to cause injury rather than an intention to frighten or to intimidate be established. If, however, what is established is that the defendant’s intention was to cause injury by shock and hence injury to the person, that, although probably a rare situation, would be sufficient (Rapier (1979) 70 Cr App R 17, following Edmonds [1963] 2 QB 142, [1963] 1 All ER 828, and explaining Woodward v Koessler [1958] 1 WLR 1255, [1958] 3 All ER 557). It is, therefore, necessary for the judge to give a careful direction so that the jury is aware that, if it determines that the defendant’s intention was to scare others away, that does not amount to an intention to use a weapon to cause injury (Snooks [1997] Crim LR 230).


When considering whether an article falls into this category of offensive weapon, it is for the prosecution to prove the element of specific intention (Petrie [1961] 1 WLR 358, [1961] 1 All ER 466 (making the comparative point that, if the article is an offensive weapon per se, there is no need to prove such intention)). This is a matter of circumstantial evidence based on all the circumstances of the case. Some assistance is provided by the general approach taken to the concept of intention, see A2.2. In particular it is clear that the use to which the weapon is actually put can assist in determining what the intention of the possessor was. Indeed in some cases it may itself be sufficient to establish the necessary intent, but each case must depend upon its own facts (Harrison v Thornton (1966) 68 Cr App R 28, Dayle [1974] 1 WLR 181, [1973] 3 All ER 1151, Ohlson v Hylton [1975] 1 WLR 724, [1975] 2 All ER 490).


The phrase ‘has with him’ (see B12.92) emphasises that the offence is concerned with the situation where a person carries a weapon with the intent to use it if the occasion arises. The offence is not concerned with the actual use of the weapon, or with the situation where a person arms himself with a weapon for an instant attack on the victim.


Actual use can, of course, be dealt with by charging appropriate offences against the person. This was made clear by the Court of Criminal Appeal in Jura [1954] 1 QB 503, [1954] 1 All ER 696, where a conviction for this offence was quashed where the appellant had possession of an air rifle at a shooting gallery, which he then used to fire at a woman companion. It was his use of the rifle which was unlawful, not his carrying of it, for which he had a reasonable excuse. As Lord Goddard CJ put it: ‘The Act of 1953 is meant to deal with a person who goes out with an offensive weapon, it may be a cosh or a knife, without any reasonable excuse’. The point is confirmed by the Court of Appeal in Dayle [1974] 1 WLR 181, [1973] 3 All ER 1151. The trial judge, following Jura, held that it was open to a jury to find that there was no possession of an offensive weapon when an inoffensive article lawfully carried was offensively used. The Court of Appeal agreed with this approach. Consequently, it appeared that the appellant would not have been in possession of an offensive weapon when he took the car jack and brace in the heat of the moment.


Both these Court of Appeal decisions were applied by the Divisional Court in Ohlson v Hylton [1975] 1 WLR 724, [1975] 2 All ER 490, where a workman was held not to be guilty of the offence where he took a hammer from his work bag and struck a fellow traveller at an Underground station. The hammer was properly in his possession. Lord Widgery CJ delivering the judgment of the court, said at pp. 728–9:



. . . I would hold that an offence under section 1 is not committed where a person arms himself with a weapon for instant attack on his victim. It seems to me that the section is concerned only with a man who, possessed of a weapon, forms the necessary intent before an occasion to use actual violence has arisen. In other words, it is not the actual use of the weapon with which the section is concerned, but the carrying of a weapon with intent to use it if occasion arises. . . .


I accept that it is unnecessary for the prosecution to prove that the relevant intent was formed from the moment when the defendant set out on his expedition. An innocent carrying of say, a hammer can be converted into an unlawful carrying when the defendant forms the guilty intent, provided, in my view, that the intent is formed before the actual occasion to use violence has arisen.



In Humphreys [1977] Crim LR 225, the Court of Appeal, following Ohlson v Hylton, decided that no offence was committed where a person who happened to have a penknife on him then used it in desperation, because it had not been carried in a public place with the necessary intent. In Bates v Bulman [1979] 1 WLR 1190, [1979] 3 All ER 170, the Divisional Court, applying Ohlson v Hylton held that the accused, who acquired an unopened clasp knife (which was not made or adapted for causing injury) with the immediate intention of using it as an offensive weapon, did not commit the instant offence, since ‘the purport of the [1953] Act . . . is to cover the situation where an accused person . . . has with him and is carrying an offensive weapon intending that it shall be used, if necessary, for offensive purposes’. Again, it was indicated that if there was use of an offensive weapon, that was better dealt with by a substantive offence. Stocker J giving the judgment of the court, also said that it ‘would be a rather academic and over-analytical approach [to make] a distinction between an innocent weapon subsequently used with the intention of an assault and which is being carried innocently . . ., and a similar article which is acquired either by borrowing from somebody else or fortuitously by being picked up in the street’. On the assumption that this is a correct interpretation of the cases, it casts doubts upon the accuracy of an earlier decision of the Divisional Court where it was held that an offence was committed when the accused, in the course of a fight between others, picked up a stone, thus arming himself, and threw it at one of the fighters, but missed him (Harrison v Thornton (1966) 68 Cr App R 28). See also B12.63.


The Court of Appeal returned to this issue in Veasey [1999] Crim LR 158. It confirmed that in cases where the real issue is the use of an offensive weapon a charge of assault is ‘quite adequate’. The instant offence is concerned with carrying and not use, a distinction drawn by Professor Sir John Smith and approved by the Court (see now Smith and Hogan: Criminal Law (9th ed., 1999) at p. 448). The direction to the jury in Veasey did not sufficiently draw this distinction. It would not necessarily follow that the accused did have the requisite intent if, as the judge had directed, he left the car with a Krooklok, which he intended to use to cause injury. See also C v DPP [2002] Crim LR 322


In Edmonds [1963] 2 QB 142, [1963] 1 All ER 828, the Court of Criminal Appeal held (at pp. 149–50) that in a case of joint possession, the direction which was appropriate and requisite was:



. . . consider the nature of each article and the case of each man individually and separately, and have regard to the circumstances as a whole and the time of day. Are you sure that each man intended to use the article he carried to injure someone? Alternatively, are you satisfied that he was party to a common purpose, with one or more of the others, of using one or more of the articles for inflicting injury upon someone? And, when you consider this alternative, you must first be sure that he knew that one or both of the others had the article which each of them was shown to be carrying.



Meaning of ‘Has with Him’



B12.92



In Densu [1998] 1 Cr App R 400, the Court of Appeal noted that counsel had taken a point in skeleton argument which he had abandoned when shown two unreported cases by the Registrar of the Court of Appeal Criminal Division. Counsel had indicated that he wished to argue that the trial judge was wrong when he ruled that the phrase ‘has with him’ was satisfied ‘if the prosecution proved that the appellant merely knew that he had the baton with him but did not know that it was a weapon’. The reliability of this as a statement of law is open to question. The Court of Appeal makes no comment on the abandonment of the argument. The decisions are not ones concerned with the Prevention of Crime Act 1953. Vann [1996] Crim LR 52 is concerned with a ‘have with him’ offence contrary to the FA 1968, s. 19 (and which followed Hussain [1981] 1 WLR 416, [1981] 2 All ER 287, a possession offence under the FA 1968, s. 1: see B12.64 and B12.21). Matrix [1997] Crim LR 901 is concerned with a possession offence contrary to the Protection of Children Act 1978. In both cases, the drugs decision, Warner v Metropolitan Police Commissioner [1969] 2 AC 256, [1968] 2 All ER 356 (see B20.13), was significant. It may be that, nevertheless, the point, in principle, is correct. It is consistent with these, and other areas of law (e.g. drugs possession), and there is no good reason (as there is on some issues) why the approach should be different in this offence from the others. Further, the point is consistent with one view of the approach of the Court of Criminal Appeal in Cugullere [1961] 1 WLR 858, [1961] 2 All ER 343. In that case, the court held that the phrase under consideration ‘must mean “knowingly has with him in any public place” ‘. The court went on to make clear that it meant that the accused must knowingly have possession of the article in question. This has been interpreted to mean that a person who forgets that he has the offensive weapon in his possession, nevertheless has it with him (McCalla (1988) 87 Cr App R 372). However, there is another view of Cugullere. This was expounded by the Court of Appeal in Russell (1984) 81 Cr App R 315. It stated that the court in Cugullere had been applying ‘the general principle of criminal responsibility which makes it incumbent on the prosecution to prove full mens rea’. Russell is also a decision that is directly contradictory to McCalla. As Professor Sir John Smith has pointed out ([1998] Crim LR 347), the Court of Appeal in Densu made no reference to Russell (or indeed Cugullere) and he does not accept that Russell was decided per incuriam. It is submitted, therefore, that the point is open for conclusive consideration. In R (Bayliss) v DPP [2003] All ER (D) 71 (Feb), [2003] EWHC 245 (Admin), the Divisional Court examined both Cugullere and McCalla, as well as subsequent decisions, and reached the conclusion that forgetfulness does not change the fact that a person had an offensive weapon with him. However, forgetfulness may be relevant to whether the accused has a good reason for that possession, see B12.96. In considering the offence contrary to the CJA 1988, s. 139(1) (see B12.97), the court in Daubney (2000) 164 JP 519, held that, as a general principle, a person only has something with him or in his possession if he knows that he has with him or is in possession of the object in question. Thus the judge’s summing up, which may have made the jury think that a mere belief that a knife was somewhere in the accused’s van would be sufficient, was incorrect. However, a decision, concerned with the possession of firearms and ammunition, has held that mere forgetfulness about possession or an erroneous belief that it had been destroyed or disposed of did not affect a conviction (in that case the ammunition had originally been acquired lawfully under a firearms certificate): see (Amos (29 September 1999 unreported), discussed at B12.21).


Meaning of ‘Public Place’



B12.93



Prevention of Crime Act 1953, s. 1


(4) In this section ‘public place’ includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise. . .



‘Public place’ was considered in Knox v Anderton (1982) 76 Cr App R 156. The Divisional Court, in part relying on decisions on other pieces of legislation such as the Public Order Act 1936 (see B11.15), concluded that a reasonable bench of justices could decide that the upper landing of a block of flats which could be reached without hindrance was a ‘public place’, as there were no barriers or notices restricting access. In Williams v DPP (1992) 95 Cr App R 415, the landing of a block of flats, to which access could be gained only by way of key, security code, tenants’ intercom or caretaker, was not a ‘public place’ for the purposes of the Criminal Law Act 1967, s. 91 (being drunk and disorderly, see B11.171), because only those admitted by or with the implied consent of the occupiers of the block of flats had access. People with access were not present as members of the public. The justices had misread Knox v Anderton believing that the mere absence of notices restricting access had been sufficient in that case to determine that the area was a public place.


Lawful Authority or Reasonable Excuse: the Burden of Proof


B12.94



The Prevention of Crime Act 1953, s. 1(1) (see B12.84), clearly lays the burden of proving either lawful authority or reasonable excuse upon the defendant, but only once the possession of an offensive weapon has been established (Petrie [1961] 1 WLR 358, [1961] 1 All ER 466). Thus, if the weapon is either made or adapted to be offensive, the prosecution has to prove no more than possession of the article, whereas with the third category of offensive weapons the prosecution has to prove the requisite intent before the burden passes to the defendant to prove either lawful authority or reasonable excuse.


It is for the defendant to satisfy the jury as to either a lawful authority or reasonable excuse on a balance of probability and not beyond a reasonable doubt (Brown (1971) 55 Cr App R 478). See generally F3.4 and F3.19. The imposition of a legal burden upon the defendant is open to challenge in the light of Lambert [2002] 2 AC 545, [2001] 3 All ER 577 (see F3.6).


It follows from what has already been said about the purpose of the offence, that the reasonable excuse (or lawful authority) must be identified with the carrying of the weapon, and not with its use, as is made clear by Lord Goddard CJ giving the judgment of the Court of Criminal Appeal in Jura [1954] 1 QB 503, [1954] 1 All ER 696 (see also Dayle [1974] 1 WLR 181, [1973] 3 All ER 1151 and Bryan v Mott (1975) 62 Cr App R 71).


Lawful Authority


B12.95



The Divisional Court in Bryan v Mott (1975) 62 Cr App R 71 at p. 73 said:



The reference to lawful authority in the section is a reference to those people who from time to time carry an offensive weapon as a matter of duty-the soldier and his rifle and the police officer with his truncheon.



See also Houghton v Chief Constable of Greater Manchester (1986) 84 Cr App R 319.


Private security guards would not have lawful authority to carry, for example a truncheon, since they are exercising no duty in the sense that Bryan v Mott (1975) 62 Cr App R 71 perceives that word, i.e. any contractual duty would be irrelevant, see Spanner [1973] Crim LR 704. However, such a person may have a reasonable excuse, see Malnik v DPP [1989] Crim LR 451 (see B12.96).


Reasonable Excuse



B12.96



In Densu [1998] 1 Cr App R 400, the Court of Appeal held that the defence of reasonable excuse arises only once it is established that the accused was in possession of an offensive weapon. A reasonable excuse does not then arise if the argument is that the accused did not know that what he was carrying was an offensive weapon. Any other approach would defeat the statutory purpose. The court also held that ‘the cases where the defence of reasonable excuse will be available are restricted’. A number of reasonable excuses have been recognised. The obvious form is where a person has an article properly in his possession for a legitimate purpose, such as the penknife in Humphreys [1977] Crim LR 225, and the workman’s hammer in Ohlson v Hylton [1975] 1 WLR 724, [1975] 2 All ER 490 (see B12.91).


A frequently recurring argument has been that it amounts to a reasonable excuse that the weapon is carried for the purposes of self-defence in case the carrier should be attacked. The problem with this argument is that the carrier is likely to be permanently or constantly carrying the weapon because of some constant or enduring (supposed or actual) threat of danger to the carrier. Carrying of a weapon simply as a general precaution was thought by the Divisional Court in Evans v Hughes [1972] 1 WLR 1452, [1972] 3 All ER 412, following Evans v Wright [1964] Crim LR 466, and Grieve v Macleod [1967] Crim LR 424, to be insufficient to establish a reasonable excuse, and this approach has recently been confirmed by the Court of Appeal in Densu. What would be acceptable would be where the carrier was in anticipation of imminent attack and was carrying the weapon for his own personal defence against that specific danger. The decision in Evans v Hughes has consistently been followed; see Peacock [1973] Crim LR 639, Bradley v Moss [1974] Crim LR 430, Bryan v Mott (1975) 62 Cr App R 71. Evans v Hughes was followed by the Divisional Court in Malnik v DPP [1989] Crim LR 451. Bingham LJ giving the judgment of the court said that ordinarily one cannot legitimately arm oneself with an offensive weapon with which to repel unlawful violence when one has deliberately and knowingly brought about the situation in which such violence was liable to be inflicted. Bingham LJ went on to state that the position was quite different in the case of those to whom society has entrusted the responsibility for enforcing the law, and indeed there is a difference in the case of those such as security guards who are handling valuable property in the course of their ordinary occupation and have reason to fear attack.


It would seem that the courts strive to permit a person to have a reasonable excuse where there is ‘good’ reason for the possession of the offensive weapon. So in Southwell v Chadwick (1986) 85 Cr App R 235, the Court of Appeal accepted that it was a reasonable excuse for a person to have in his possession a machete knife in its scabbard and a catapult for use for killing grey squirrels, so that he could obtain food for his wild birds which he kept under licence. Also in Callaghan (30 October 1987 unreported), the Court of Appeal was of the view that the jury should have been left to consider whether the accused had a reasonable excuse for being in possession of a machete, which he used in a fight, when his claim was that he had bought it for domestic use and was taking it back to his home after having lent it to a friend. Even where a weapon offensive per se was carried, but merely as a theatrical property as part and parcel of fancy dress worn by a person going to or from a fancy dress party, the Court of Appeal accepted that the innocent motive could amount to a reasonable excuse (Houghton v Chief Constable of Greater Manchester (1987) 84 Cr App R 319). The accused was dressed in a police uniform and was carrying a truncheon and was held, on the facts, to have a reasonable excuse. In Densu the Court of Appeal thought that the following example provided by May LJ in McCalla (1988) 87 Cr App R 372 might amount to a reasonable excuse:



if someone driving along a road where earlier there had been a demonstration were to see and pick up a police truncheon which had obviously been dropped there and were to put it into the boot of his car, intending to take it to the nearest police station, and then were to be stopped within a few minutes, he would have a reasonable excuse for having the truncheon with him in the boot of the car.



In Glidewell (1999) 163 JP 557, the Court of Appeal held that ‘depending on the circumstances of the particular case, forgetfulness may be relevant to whether or not a defendant has a reasonable excuse for possession of an offensive weapon’. Factors that might be relevant are (in relation to the facts of the instant case): the accused did not introduce the weapons into his car; the weapons had been in the car for a relatively short period of time; the accused was very busy on the night in question. As these all bore on the question of forgetfulness, they were matters for the jury. See also Ivey (15 August 2002 unreported, CA), where forgetfulness was relevant to the reasonable excuse that D had put the knife in his pocket as part of moving his possessions from one house to another (the knife having been bought as an ornament) and he had had his possessions in his car for two weeks and had forgotten about the knife.) See also Lorimer [2003] All ER (D) 61 (Feb), [2003] EWCA Crim 721. In R (Bayliss) v DPP [2003] All ER (D) 71 (Feb), [2003] EWHC 245 (Admin), the Divisional Court accepted that there may be circumstances where forgetfulness is relevant to the defence of good reason, but it is not relevant to having the weapon with him (as to which see B12.92). Simple forgetfulness would not be sufficient to amount to a reasonable excuse, as is made clear in Glidewell (and see Gregson (1993) 96 Cr App R 240 at B12.97 and Hargreaves (1999) unreported), but factors causing forgetfulness such as an illness or the taking of medication would be relevant.

[Ross]

Ms Babe - you're a star, thanks very much!

[narsil]

Crumbs...

[Kakster]

Bloody hell, i should have stuck with collecting torches :yikes:

[narsil]

Bloody hell, i should have stuck with collecting torches :yikes:

You must be spodophobic

[Danzo]

Ms Babe

Marry me?

:approve:

Danzo

[Danzo]

OK folks

I think this uber-up to date material needs to be tied together in a stcky, wotcha all think? I will try and translate anything that is overly Legalese.........which is most of it, probably! I'm still drooling over the thought of Blackstone Online but I have just got Butterworths Law Reports on line sorted out at my new workplace so that should make finding the latest cases much easier!

And what should I buy with the £140 I was saving for a new volume of Blackstone?

:rolleyes:

Dinner for Ms Babe?

;)

Danzo

[stonehard]

I was so proud to see that so many legal decisions had been made in Manchester why I'm not sure we "really dont have a knife culture up here.

Hey landybaby wanna talk about 4bees some time. my yota is kick butt banging to the max. uh huu

[steeve]

Great thread - obviously. A 4-line summary would be good...........

Cheers

[Martyn]

Great thread - obviously. A 4-line summary would be good...........

Cheers

We're working on it....

It has to be just the right 4 lines. ;) :D

[Little claw]

What is the difference (if any) between 'reasonable excuse' (offensive weapons act 1953) and 'good reason' (s139. 1988 act - article with balde or point)?

[Colin KC]

One day, I'll get around to posting the "locking shut" ferrule for you all.



Twelve of us already have them Keith, they were in the bunch that I got off Ebay;)

[Ross]

What is the difference (if any) between 'reasonable excuse' (offensive weapons act 1953) and 'good reason' (s139. 1988 act - article with balde or point)?

None, I wouldnt have thought so.

[Ross]

Great thread - obviously. A 4-line summary would be good...........

Cheers

YOU
CAN'T
CARRY
A LOCK KNIFE

;)

[ANDYLASER]

YOU
CAN'T
CARRY
A LOCK KNIFE

;)
LOL :D :biggthump

[kenny]

LOL


keep it simple !