Neutral Citation Number: [2007] EWCA Crim 3312
No. 2007/04799/C5
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  15  November  2007

B e f o r e:

LORD  JUSTICE  LAWS

MR  JUSTICE  MACKAY

and

MR  JUSTICE  LLOYD  JONES
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APPLICATION BY THE CROWN PROSECUTION SERVICE No. 23 of 2007

UNDER  SECTION  58  OF

THE  CRIMINAL  JUSTICE  ACT  2003
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R E G I N A

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Mr R Chishti appeared on behalf of the Applicant

Mr L Kazakos appeared on behalf of the Respondent
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J U D G M E N T

LORD JUSTICE LAWS:  
1.  This is an application by the prosecution for leave to appeal against a terminating ruling under section 58 of the Criminal Justice Act 2003.  The ruling in question was made by Mr Recorder Owen Davies QC at the Harrow Crown Court on 30 August 2007.  The respondent faced his trial before the Recorder on an indictment containing a single count which alleged an offence of having in his possession an offensive weapon, namely "a pair of sand gloves".  At the end of the prosecution evidence the Recorder of his own motion stopped the case, holding that the gloves in question were not in law capable of being regarded as an offensive weapon within the meaning of the relevant statute, the Prevention of Crime Act 1953.  This is the ruling which the Crown seeks to appeal.  The application is brought under section 61 of the Criminal Justice Act 2003.  We are asked to grant leave and to reverse the Recorder's ruling on the ground that it was wrong in law.

2.  The facts are very short.  On Christmas Day 2006 the respondent was arrested on suspicion of having been involved in an assault by another person on a third party.  He was exonerated in relation to that matter.  However, at the police station a pair of gloves was recovered from his pocket.  He was thereafter charged with having an offensive weapon contrary to section 1(1) of the Prevention of Crime Act 1953.  In interview he said that he used the gloves to keep himself warm.

3.  It is of some importance to note that, at any rate at the outset of the trial, Crown counsel had disavowed any allegation that the respondent had the gloves with him intending to use them to cause injury.  Mr Chishti who represented the Crown at trial has appeared before us this morning.  He says that although that is so, he raised the question of a case possibly based on the respondent's intention at the time he addressed the Recorder at the close of the prosecution evidence.  It seems to us that it is proper that we should leave such a potential case aside.  It was not the Crown's case at any point while the evidence was called.  The real question here is whether, under the Prevention of Crime Act and the learning in the cases, the respondent's guilt of this offence could be established by proving that the gloves were either made or adapted for use as a weapon.  

4.  In giving reasons for his ruling, which he did in the presence of the jury, the Recorder described the gloves as follows:

		"You have been shown a pair of black leather gloves, and in the area, over the knuckles, there appears to be some padding which is part of the manufactured glove.  That appears to contain a substance which has been described as sand."

We have been shown the gloves in court this morning.  It is noticeable that they are very heavy.

5.  There was also evidence adduced before the jury as part of the Crown's case of the contents of a website which advertised gloves of this kind for sale.  They were advertised as "self-defence gloves".  They were described as having powdered lead in a pouch over the knuckles.  Apparently the website also stated that the owner should check the legality of the gloves in his home state.

6.  The prosecutor says that these facts suffice to establish that the gloves were made, or at least adapted, for use as a weapon.  At any rate it is asserted that the evidence which we have briefly summarised would have justified a jury in so concluding.

7.  The respondent says that the nature of the gloves was at least as consistent with their being ordinary gloves designed or adapted for use as such.  In particular their nature is consistent with their having been designed to protect the hands from injury when undertaking certain activities such as motor-cycling.

8.  The case is a very short one.  In our judgment there was material consisting of the evidence of the nature of the gloves as described by the Recorder (and which we have seen) and the evidence of the internet advertisement from which a reasonable jury could infer that the gloves had been made for use as a weapon.  That being so, the Recorder was wrong to stop the case.  It was for the jury to decide whether that inference should be drawn and whether that was the correct conclusion to reach.  The Recorder could only properly have stopped the case if there was not evidence upon which a reasonable jury could have based such an inference.

9.  In those circumstances we are satisfied that the Recorder's ruling was wrong in law.  We grant leave and allow the appeal.  We will hear argument as to what order we should make under section 61(4) of the Act.

MR CHISHTI:  My Lord, it is at page 1137.  My Lord, that section says that the Court of Appeal may order subsequent proceedings or a fresh trial if they consider it is necessary in the interests of justice to do so.  In my humble submission, my Lord, it is in the interests of justice.  As I said earlier, there have been other cases at Harrow Crown Court where there have been convictions following proper directions being given by a judge.

MR JUSTICE MACKAY:  By what route, if you are right, would we do that?  This jury is still in charge of this defendant.  Is that not right?

MR CHISHTI:  My Lord, no.  My Lord, this case was not expedited and on that basis the jury was discharged.  The view taken was that if the appeal is allowed at the Court of Appeal, on that basis --

LORD JUSTICE LAWS:  It is notable that section 61(4)(a) and (b) draws a distinction between resuming the proceedings and ordering a fresh trial.

MR CHISHTI:  My Lord, yes.

MR JUSTICE MACKAY:  The Recorder did not ask for a verdict, he simply discharged the jury?

MR CHISHTI:  He did.  I specifically asked him not to take a verdict.  The jury did not give a verdict.  They were simply discharged and the matter was left to the Court of Appeal.  I expressly gave the undertaking that if the Court of Appeal --

LORD JUSTICE LAWS:  How long ago was all this?  It was only 30 August 2007.

MR CHISHTI:  Indeed, my Lord.

LORD JUSTICE LAWS:  Let us see what your opponent has to say.  The application is for a fresh trial under section 61(4)(a), Mr Kazakos.

MR KAZAKOS:  My Lord, I resist that application.  The respondent is a 35 year old man.  He has one very minor conviction in 1996.  The offence (if it was such) occurred on Christmas Eve last year.  He is unlikely to face a fresh trial until the spring of next year.  There have been two previous listings for this trial.  One wonders, given the likely penalty if convicted for a 35 year old man who is very lightly convicted, whether it is in the interests of justice (and also looking at the public expense) to have a fresh trial.  I note the last words in subsection (5): "The Court of Appeal may not make an order unless it considers it in the interests of justice to do so".

LORD JUSTICE LAWS:  Certainly.

	(The court conferred)

LORD JUSTICE LAWS:   We have concluded that it is in the interests of justice that this respondent should face a fresh trial for the offence with which he was originally charged.  We order that there be a fresh trial.

MR CHISHTI:  My Lord, I will make arrangements for that.  My Lord, would your Lordships direct that there be a mention in this case for listing the trial within the next fourteen days?

LORD JUSTICE LAWS:  I am not sure that it is for us to tell the Crown Court when to hear mentions.  It is up to your people to get on with it, or ask the court to do so.

MR CHISHTI:  Indeed.  My Lord, there is one further application I would make and that relates to reporting restrictions.  This case comes under an interlocutory hearing and on that basis there can be no reporting of it.  But I see no prejudice to the defendant if this case were to be reported --

LORD JUSTICE LAWS:  Why can the reporting not be postponed until after the hearing in case anybody on the defence case is worried about it?  Mr Kazakos?

MR KAZAKOS:  That certainly is one submission.  The other submission is that, if it is to be reported, the case could be given a neutral citation --

LORD JUSTICE LAWS:  And anonymised.

MR KAZAKOS:  -- and given an initial.

LORD JUSTICE LAWS:  Yes, we are agreed that that is the right thing to do.  It can be reported, but it is to be referred to by the neutral citation and the name anonymised.

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