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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ellis, R. v [2010] EWCA Crim 163 (12 January 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/163.html Cite as: [2010] EWCA Crim 163

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12 January 2010

1. LORD JUSTICE DYSON: On 13th May 2009 at Lewes Crown Court the appellant was convicted of having an offensive weapon in a public place without lawful authority or reasonable excuse, contrary to section 1(1) of the Prevention of Crime Act 1953. He appeals against conviction by leave of the single judge.
2. On 14th October 2008 he was stopped by police as he was driving his car in Hawth Avenue, Crawley, West Sussex, which is a public highway. On the back seat of his car was on open extendable "friction lock" police baton. On the floor of the car was a pair of police-type handcuffs. A home-made police-style warrant card was found in the appellant's pocket. It bore the name "S Burton".
3. He told the police that the baton must have been left in the car by a friend who was in the police force. He later admitted to the police that this was a lie. He then told them that he had used the items in sexual role play with a previous partner but that he no longer had any use for them since the relationship had ended. He said that he had decided to dispose of the items in a secure bin at Three Bridges Railway Station and was on his way to do just that when he was stopped by the police.
4. The Crown case was that the baton was an offensive weapon and that the appellant had no reasonable excuse for possessing it. They said that the second explanation that he gave to the police, which he repeated at trial, was not credible. The Crown relied on the appellant's admitted lies in his first explanation to the police as well as his bad character. The evidence of his bad character was the subject of a formal admission in the present proceedings which is in these terms:

"On 26th February 2004, the defendant was convicted of 6 offences of Obtaining a Service by Deception, (contrary to section 1 of the Theft Act 1978) and 6 offences of Using a False Instrument (contrary to section 3 of the Forgery and Counterfeiting Act 1981) between 25th May and 22nd July 2003. These were specimen charges to reflect the period during which the defendant submitted false time sheets to the recruitment agency for whom he was working at that time. These time sheets included a forged signature that purported to confirm that he had been at work throughout that seven week period when in fact he had attended only once. Following his arrest for those offences, he was first interviewed on 25th September 2003. During the course of that interview, which lasted 1 hour and 17 minutes, the defendant advanced a detailed account in which he claimed that he had in fact been at work during the relevant period. In a further interview that took place on 7th October 2003, the defendant again said that he had been at work during the relevant period. However, during the course of that second interview, he requested a short break to consult with his solicitor. When the interview resumed, the defendant admitted that he was in fact guilty of the offences and, in effect, that the accounts he had given in the earlier interviews were untruthful. He went on to plead guilty at the first opportunity."

5. The defence case was that the appellant had reasonable excuse for the possession of the baton since he was on his way to dispose of the baton at the railway station when he was stopped by the police. It was also said on his behalf that his bad character was irrelevant and that in any event he was in possession of the baton in his car which was not a public place within the meaning of section 1(1) of the 1953 Act.
6. The Crown were given leave by the judge to adduce evidence of the appellant's bad character under section 103(1)(b) of the Criminal Justice Act 2003 as going to his propensity to be untruthful. The issue as to his propensity to be untruthful was a serious issue in the case. The Crown contended that the appellant's conduct in the earlier proceedings demonstrated his persistent propensity to be untruthful. As we have said, the judge admitted the evidence of the previous offences and the lies told by the appellant in interview in respect of those offences. It is not argued on behalf of the appellant that the judge was wrong to admit that evidence.
7. The ground of appeal for which the single judge gave leave to appeal to this court concerns the directions given by the judge to the jury in respect of the previous convictions and the lies told at the interview.
8. What the judge said was this (page 5G):

"You have also heard of the conviction in 2003, or the series of convictions, the six pairs of specimen counts that are referred to in that admission. It is quite clear from that admission and the facts of it that he was thoroughly untruthful in the activities that he got up to, claiming for work that he had not done and taking the money. It is equally clear that when he was interviewed he maintained a false account through quite a long period of time on two occasions. Equally, it is clear that having done that he changed his mind and accepted that he had pleaded guilty, and when he came to court he pleaded guilty to those offences; those are matters that the defence have raised with you.

The reason you have heard about that is that the issue really in this case is whether you accept his account as being a reasonable excuse. If it is a true account, does it amount to a reasonable excuse? If it is not a true account well then it cannot amount to a reasonable excuse. So the fact that he has been untruthful on previous occasions goes to the issue of whether you can believe his evidence when he gives it. The lie, if you find it a lie on a previous occasion, is a matter that you can take into account in coming to your conclusions. Whether you do or not is entirely for you to decide. The defence say it is quite a different sort of thing that he was doing and he came clean in the end, so it has really no relevance to the issues in this case. It was five years ago; it is time to forget that sort of thing. The Crown say: 'No, this is a man who says: "I want you to believe this account that I am giving today" and he is, on his own account, effectively a person you cannot believe in or believe his evidence.' Those are the two sides. You decide. If you do not think it has any relevance, well then you will not take it into account."

9. On behalf of the appellant, Mr Edwards submits that there were a number of flaws in this direction. First, the judge did not tell the jury that the mere fact that a person has lied to the police in the past does not mean that he has lied on the instant occasion. Secondly, the judge did not tell the jury that the mere fact that a person has committed offences in the past does not mean that he did so on the instant occasion. In support of those submissions Mr Edwards relies upon what was said by this court in the case of Hanson [2005] 2 CrAppR 21 of the relevant parts of which a sufficient summary appears at paragraph 13-68 in Archbold 2010:

"... it was said that in any case in which evidence of bad character was admitted to show propensity to commit offences or to be untruthful, the summing-up should warn the jury clearly against placing undue reliance on previous convictions, and should, in particular, direct them that, (a) they should not conclude the defendant was guilty or untruthful merely because he had those convictions, (b) although the convictions might show propensity, that did not mean that he had committed the offences or been untruthful in this case."

10. The third criticism made by Mr Edwards is that the judge did not remind the jury that the bad character relied on by the Crown related to events which had occurred some five years earlier and that there was no evidence of any intervening dishonesty. Finally, Mr Edwards complains that the judge paraphrased defence counsel's speech in a way which trivialised it and which was therefore prejudicial to the defence.
11. We start with the first criticism. In our judgment there is some force in the point made by Mr Edwards. It seems to us that the judge did indeed fail to warn the jury that they should not conclude that the appellant had been untruthful in the account that he gave to them and indeed the second explanation that he gave to the police, merely because he had been untruthful on the earlier occasion. It is true that the judge did say to the jury that it was for them to decide whether it was right to take into account the previous dishonesty by the appellant in deciding the issue which he rightly identified as being relevant, namely whether he was untruthful on the instant occasion. As far as that went, the judge was right to put the case to the jury in that way. But in our judgment he should have gone one step further and given the warning to the jury, to which we have referred, and directed them that they should not necessarily infer from the fact that he had previously been untruthful that he must therefore have been untruthful on the instant occasion. It seems to us, however, that the focus of the judge's summing-up was on the question of whether or not the account that the appellant had given to them was truthful; and he made it clear that it was a matter for the jury to decide to what extent if at all they should take into account the previous lack of truthfulness on the appellant's part. Nevertheless, we accept the submission of Mr Edwards that there was an omission in the judge's summing-up which is of some significance. The question that arises is whether that omission renders the conviction unsafe. Before we reach our conclusion on that question, we should deal with the other criticisms.
12. It seems to us that, in addition to warning the jury of the dangers of reaching a conclusion of untruthfulness on the basis of bad character, the judge should have given the same warning in relation to reaching a conclusion that the appellant had committed the instant offence on the basis of the previous offending. The two omissions stand and fall together because apart from the question of whether or not the appellant was in a public place and whether the excuse that he offered, if accepted as being truthful, was a reasonable excuse, the question of whether the appellant was guilty of the offence turned solely on the question of whether or not the jury accepted as truthful the explanation that he gave.
13. The third criticism in substance was that the jury were not reminded by the judge of the fact that the previous offending had been committed some five years earlier and that there had been no intervening dishonesty. As we have seen from the extract from the summing-up which we have quoted, the judge did remind the jury of the fact that this was a point relied on by the defence. In our judgment it is difficult to see what more the judge should have said to the jury in relation to those matters. We reject the third criticism. Similarly, we reject the fourth criticism. We can find no trace in the summing-up of trivialisation by the judge of the defence case.
14. We return therefore to the question of whether the omissions which we have identified render the conviction unsafe. We are quite satisfied that they do not do so. It seems to us that the case against the appellant was very strong indeed. The starting point is that he gave an untruthful explanation to the police as to why he was in possession of the baton and the other items. Secondly, the account that he gave, which he repeated to the jury, was one which it seems to us was wholly lacking in credibility. It is a telling point against the appellant that the three items that were in the car were found in different places. Of particular significance is the fact that the so-called warrant card was found in the trouser pocket of the appellant. It is very difficult to see why, if the appellant was indeed taking all of these items to be disposed of in a secure bin at the railway station, they were in such different places within the vehicle. To this should be added the fact that there were apparently discovered at the appellant's home address certain other items of police clothing. It seems to us that, taking all this together, the explanation put forward by the appellant as to what he was doing when he was in possession of these items when he was stopped is incredible. In our judgment the case against the appellant was overwhelming. We are in no doubt that this conviction was safe. Accordingly, we would dismiss the ground for which leave to appeal was given.
15. We turn to the further ground for which Mr Edwards seeks leave to appeal. This is his submission that the car was not a public place. The judge had ruled that the case was not a public place. Mr Edwards submits that the judge was wrong so to rule. The reasons given by the judge for his ruling included the following:

"The submission is based on a misunderstanding of the statute, the statute which says that it is an Act to prohibit the carrying of offensive weapons in public places without lawful authority or reasonable excuse. A highway is specifically stated in clause 4 to include a highway, and, on any construction, the defendant had with him on the highway an offensive weapon. The fact that he had it with him in his car is not an answer to whether it is a public place. A public place is a highway, he was on the highway, he had it with him, and that is the offence. Whether he has a reasonable excuse is a matter that may be examined.

To interpret the statute in the way that my learned friend for the defence suggests, is to allow people to park on the highway with all sorts of offensive weapons and totally destroy the purpose of the Act, and it is not construction that I am prepared to give to the Act."

Mr Edwards submits that a car is a place within its own clearly defined "curtilage". It is a place to which people may be admitted or from which they may be excluded. He says that it is an extension of a person's home. He seeks support for this submission from a number of authorities. It is sufficient to refer to the decision in R v Kane [1965] 1 All.ER 705, quoted with approval in Williams v DPP [1995] Cr.App.R 415, a decision of the Divisional Court:

"The real question is whether [the place] is open to the public, whether on payment or not, or whether on the other hand access to it is so restricted to a particular class or even to particular classes of the public such as for example the members of an ordinary householder's family and his relations and friends and the plumber or other tradesmen who come to do various repairs about the house. If it is restricted to that sort of class of person then of course it is not a public place, it is a private place."

It should be noted that the context in which those remarks were made was not the issue of whether a vehicle is a public place, but whether a property is or is not a public place.

16. We cannot accept Mr Edwards' submissions. It is not in dispute that on 14th October 2008 the appellant was in possession of a baton. At the time when he was stopped by the police he was in a public place, namely Hawth Avenue, Crawley. The fact that he had happened to be driving his car at the time is no more material to where he was than would have been the fact that he was walking, waiting for a bus or riding a bicycle in Hawth Avenue, Crawley. An accurate answer to the question where he was at the time he was stopped would have been "in Hawth Avenue". A different question would have been: "What were you doing?" The answer to that question would have been: "I was driving my car." Conversely, if he had been arrested whilst he was sitting in his car parked on the drive to his house, there would have been no answer to the assertion that he was not in a public place. But the reason why there would have been no answer is that the car was not in a public place, not that a car is not itself a public place. As Mr Richter points out in his skeleton argument, the baton was being carried in the car. If the appellant had been carrying a baton in a suitcase or in his trousers pocket when he was stopped in the street it would have been no answer for him to say that he was not in possession of it in a public place because his suitcase or trouser pocket are not public places and yet the public would not have access to his suitcase or trousers pocket. Thus the fact that there was no public access to the appellant's car does not yield the answer to the question whether he was in possession of the baton in a public place.
17. For these reasons alone, the judge reached the right conclusion on this issue. Furthermore, as he pointed out, this meaning of "public place" gives section 1(1) of the 1953 Act a sensible purpose of interpretation, the meaning contended for by Mr Edwards does not. Thus the judge was right to rule that the appellant was in possession of the baton in a public place. No other conclusion could be reached on the facts of this case. Accordingly, we refuse leave to the appellant to appeal on the further ground refused by the single judge and for all the reasons we have given we dismiss this appeal.