England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE ROSE: This is an appeal by way of case stated from a decision of the Metropolitan Stipendiary Magistrate, Mr English, at West London Magistrates' Court on 3rd September 1996. The appellant, according to the facts found by the magistrate as stated in the case, was driving his motor vehicle in Hammersmith Bridge Road W6 on the 3rd April last year at ten past six in the evening. He was stopped by Police Constable Spy who searched him and found in his possession what is described in the case as a Kobutan martial arts bar which was attached by means of a short chain to a set of keys. The bar in question is not before this court, although a bar which is similar is.

2. The bar which is before the court is just under five and a half inches long, but we are told that the bar which was before the magistrate was, according to the magistrate, about one-third shorter. That is to say it must have been a little in excess of three and a half inches long. It is cylindrical in cross-section and the diameter is of the order of five-eights of an inch and it is made of metal.

3. The contention was advanced before the magistrate at the conclusion of the prosecution case that the article was not an offensive weapon per se; it was not adapted for use so as to cause injury, and in consequence the prosecution had failed to discharge the burden of proof because there was no evidence of any intention on the part of the appellant to use the article for the purpose of causing injury.

4. For the prosecution it was contented that the article was an offensive weapon per se as it possessed no innocent quality, that the prosecution were therefore not required to prove any intention to cause injury and the burden was therefore consequentially upon the appellant to show that he had lawful authority or reasonable excuse. The magistrate was referred to a number of cases; Simpson [1983] 1 WLR 1494, which related to a flick knife; Houghton v Chief Constable of Greater Manchester [1986] 84 Cr.App.R. 319, which related to a truncheon; and Davis v. Alexander [1970] 54 Cr.App.R. 398 which related to a sword stick. The Stipendary was not, however, referred to the case of Williamson [1997] 67 Cr.App.R. 35, to which in a moment I shall return.

5. The learned Stipendiary said, according to the case, that he was of the opinion that the article was an offensive weapon per se and did not cease to be such because it was attached to a keyring; that there was no need for the prosecution to prove any intention on the part of the appellant to cause injury; and that the burden was then upon the appellant to establish lawful authority or reasonable excuse. The Stipendary rejected the submission of no case. The appellant changed his plea to guilty. He was fined and ordered to pay costs. Two questions are posed for the opinion of this court:

6. In an admirably succinct submission, Mr Brierley submitted that the answer to both questions was no. On behalf of the prosecution, Mr Winter, sought to invite the court's attention to a number of alleged facts not referred to in the case, and he stressed the fact that because the object in question was on a keyring was in no sense determinative of its quality. Had the learned Stipendiary been referred to the case of Williamson he would have seen this in the judgment of Geoffrey Lane LJ. At page 38:

7. As has been pointed out in numerous cases, that provides three categories of weapons. The first category is the weapon which is made for causing injury to the person. The second type of weapon is one not made for the purpose but adapted for it, such as, as counsel pointed out in this case, a potato with a razor blade inserted into it. The third type of weapon is one neither made nor adapted but is one which is intended by the person having it with him for the purpose of causing personal injury to someone. That sort of thing could be any object that one can think of.

8. But what is sometimes lost sight of is this. It is for the jury to decide these matters. It is for the jury to decide whether a weapon held by the defendant was an offensive weapon, bearing in mind the definition in the section which I have just read. Consequently whether the object in the possession of the defendant in any case can properly be described as an offensive weapon is a matter not for the judge but for the jury to decide. The jury must determine whether they feel sure that the object was made or adapted for use in causing injury to the person or was intended by the person having it with him for such use by him."

9. In the light of that passage it seems to me plain that the answer to the second question posed by the Stipendary is clearly no. Whether or not an object is an offensive weapon per se is a question of fact which depends upon the whole of the evidence. It is not a matter which is or should be susceptible to a ruling as a matter of law.

10. That leaves the first question. Having seen this object and the circumstances in which it was found, it seems to my mind that this could not, quite apart from the impropriety of categorising it as a matter of law, rather than in the light of all the facts, properly be regarded in itself as being an offensive weapon per se. And therefore for my part I would answer the first question in the negative as well as the second. Accordingly I would quash the conviction and would allow this appeal.

11. MR BRIERLEY: The appellant has been privately assisted, so may I ask for an appellant's cost order from central funds?

12. LORD JUSTICE ROSE: Yes, you may have your costs from central funds.