HARRIS v DIRECTOR OF PUBLIC PROSECUTIONS; FEHMI v SAME

QUEEN'S BENCH DIVISION

[1993] 1 All ER 562, [1993] 1 WLR 82, 96 Cr App Rep 235, 157 JP 205

HEARING-DATES: 21 July 1992

21 July 1992

CATCHWORDS:
Crime -- Offensive weapon -- Article with blade -- Lock knife -- Capable of being folded only on pressing button to release lock -- Whether "folding pocketknife" -- Criminal Justice Act 1988 (c 33), s 139

HEADNOTE:
For the purposes of section 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.

Where, therefore, defendants were each convicted of an offence contrary to section 139 of having with him in a public place without good reason or lawful authority a "lock knife" which could only be refolded by the pressing of a button to release a locking mechanism, and the defendants appealed on the grounds that the knives were folding pocketknives which, being less than three inches in length, could lawfully be carried in a public place:-

Held, dismissing the appeals, that lock knives were not folding pocketknives for the purposes of section 139 and the defendants had been rightly convicted (post, p 87E-F).

CASES-REF-TO:

No cases are referred to in the judgment or were cited in argument.

INTRODUCTION:
HARRIS v DIRECTOR OF PUBLIC PROSECUTION

CASE STATED by the Wells Street Metropolitan Stipendiary Magistrate.

On 31 December 1990 an information was preferred by the Director of Public Prosecutions against the defendant, John Harris, that he on 3 November 1990 at Prebend Street, Islington had with him without good reason or lawful authority an article which had a blade or was sharply pointed, namely a lock knife, contrary to section 139(1) of the Criminal Justice Act 1988.

The metropolitan stipendiary magistrate, Mr Alan C Baldwin, heard the information on 15 February 1991 and found the following facts. (a) A police officer saw the defendant in a motor vehicle in Prebend Street at about 8.30 pm on 3 November 1990. (b) The motor vehicle was stopped by the officer who asked to search the defendant and his car. (c) The defendant then produced a silver pointed lock knife, which was less than three inches long, from his inside jacket pocket.

The statement of Police Constable 355 ND Alan Earl was tendered in evidence under section 9 of the Criminal Justice Act 1967. His evidence was that on Saturday 3 November 1990 at about 8.50 pm he was on duty in full uniform with WPC 529 ND Vie driving an unmarked police car in Basire Street, London, N1. He saw a grey VW Gold GTI motor car index D819 OWG travelling south in front and indicated for the car to stop. When the vehicle stopped he observed that there were two occupants, the defendant who was the driver and a female passenger. He saw the defendant who appeared to be fiddling or concealing something near the handbrake area. PC Earl spoke to the defendant, and advised him that he was going to search him and the car for anything he may unlawfully have hidden. He asked the defendant to empty his pockets, and the defendant produced a silver three inch long pointed lock knife from his inside jacket pocket. This knife was produced to the court as exhibit 1. The officer took the knife, opened it and saw that it had a pointed blade and that it locked in the fully open position. The defendant was cautioned and was asked why he had the knife. The defendant said that he had it for cutting leaves in the garden. The defendant was dressed in a very smart blazer, shirt and trousers, and confirmed that he was going out for the evening. The officer invited him to explain why he had the knife with him, and said to him "Well I think it's for your own protection." The defendant replied "Yeah, if you want." The defendant was arrested for possession of an offensive weapon, cautioned, and made no reply. He was then taken to Islington Police Station where he was
charged and cautioned. (Although the defendant was originally charged with the offence of possession of an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953 and elected jury trial, the prosecutor offered no evidence in relation to that charge and preferred a charge contrary to section 139 of the Criminal Justice Act 1988. The prosecutor made a formal admission under section 10 of the Criminal Justice Act 1967 that the weapon exhibited had a blade less than three inches long. The evidence adduced on behalf of the prosecutor was not disputed by the defendant.

At the conclusion of the prosecution case, the defendant submitted that there was no case to answer, on the basis that the knife was a folding pocketknife and that the cutting edge of its blade was less than three inches in length, so that the knife did not fall within the provisions of section 139 of the Criminal Justice Act 1988.

The magistrate was referred to the definition of a pocketknife and a penknife as set out in the Shorter Oxford English Dictionary, 3rd ed (1944), vol II at pp 1530 and 1464 which are as follows. Pocketknife: "A knife with one or more blades which fold into the handle, for carrying in the pocket." Penknife: "A small knife, usually carried in the pocket, used originally for making and mending quill pens. (Formerly provided with a sheath; now made with a jointed blade or blades which fit inside the handle when closed.)"

The magistrate was of the opinion that it could not be said that this lock knife was a folding pocketknife. Accordingly the magistrate rejected the submission advanced on behalf of the defendant. The defendant called no evidence, and the magistrate convicted him in relation to the information.

The question for the opinion of the High Court was whether the magistrate was right in law to find that a folding knife carried in the pocket having a pointed blade of less than three inches in length and capable of being secured in an open position by a locking device was not a folding pocketknife within the meaning of section 139 of the Criminal Justice Act 1988.

FEHMI v DIRECTOR OF PUBLIC PROSECUTIONS

CASE STATED by Thames justices.

On 2 November 1990 an information was laid by an officer of the metropolitan police against the defendant, Ahmet Fehmi, that he on 14 September 1990 at Bethnal Green Road, London, E2 had with him in a public place without good reason or lawful authority an article with a blade or sharp point namely a blade, contrary to section 139 of the Criminal Justice Act 1988.

The information was heard by the justices on 3 October 1991 when the justices were asked as a preliminary issue to examine the knife the subject of the charge and to rule whether they considered it an article the carrying of which in a public place was prohibited by section 139.

The justices examined the article and found as facts: (a) that the article was a knife with a blade the cutting edge of which was less than three inches; (b) that the blade was capable of being folded; (c) that when the blade was fully opened it automatically locked in that position; (d) that to fold the blade back into the handle it was necessary to activate a button triggered mechanism; (e) that the knife was not a folding pocketknife within the meaning of section 139(3); (f) that the knife was an article which had a blade or was sharply pointed within the meaning of section 139(2).

It was contended by the prosecutor that the mechanism which locked the blade in the open position was such as to render the knife not one which the provisions of the said section permitted to be carried lawfully in a public place.

It was contended by the defendant that the knife was one which could lawfully be carried in a public place notwithstanding the existence of the locking mechanism. If Parliament had intended otherwise, the statute would so state.

The justices were not referred to any cases.

The justices found as a fact that the knife was one the carrying of which in a public place was an offence under section 139 of the Criminal Justice Act 1988. The justices directed that the knife be retained by the prosecutor so that it would be available for any further proceedings. The justices convicted the defendant.

The question for the opinion of the High Court was whether the justices' finding that the knife was one the carrying of which in a public place was an offence was a correct determination or decision in law.

COUNSEL:
Bryan McGuire for the defendant Harris; Laurence Giovene for the defendant Fehmi; John McGuinness for the Director of Public Prosecutions.

PANEL: McCowan LJ, Popplewell J

JUDGMENTBY-1: MCCOWAN LJ

JUDGMENT-1:
MCCOWAN LJ: These are two appeals by way of case stated which have been heard together because they raise a single point. The first is an appeal by John Harris. In his case an information was preferred by the Director of Public Prosecutions against him, that on 3 November 1990 at Prebend Street, Islington, he had with him without good reason or lawful authority an article which had a blade or was sharply pointed, namely, a lock knife, contrary to section 139(1) of the Criminal Justice Act 1988. At the conclusion of the prosecution's case, the defendant submitted that there was no case to answer on the basis that the knife was a folding pocketknife and that the cutting edge of its blade was less than three inches in length, so that the knife did not fall within the provisions of section 139 of the Act. 

The case was heard by Mr Alan C Baldwin, metropolitan stipendiary magistrate, sitting at Wells Street on 15 February 1991. In the case stated he says he was: "of the opinion that it could not be said that this lock knife was a folding pocketknife. Accordingly I rejected the submission advanced on behalf of the defendant. The defendant called no evidence, and I convicted him in relation to the information."

The question for the opinion of the High Court is:

"whether [the magistrate] was right in law to find that a folding knife carried in the pocket having a pointed blade of less than three inches in length and capable of being secured in an open position by a locking device was not a folding pocketknife within the meaning of section 139 of the Criminal Justice Act 1988?"

The other defendant is Mr Ahmet Fehmi. In his case an information was laid against him, that on 14 September 1990 at Bethnal Green Road, London, E2, he had with him in a public place, without good reason or lawful authority, an article with a blade or sharp point, namely a blade, contrary to the same section 139 of the same Act. The case is stated by justices for the Thames Division who tried the case on 3 October 1991. They were asked as a preliminary issue to examine the knife, the subject of the charge, and to rule whether they considered it an article, the carrying of which in a public place was prohibited by section 139. They did examine it and they found these facts:

"(a) that the article was a knife with a blade the cutting edge of which was less than three inches; (b) that the blade was capable of being folded; (c) that when the blade was fully opened it automatically locked in that position; (d) that to fold the blade back into the handle it was necessary to activate a button triggered mechanism."

It appears that it was contended by the prosecution that the mechanism which locked the knife in the open position was such as to render the knife not one which the provisions of section 139 permitted to be carried lawfully in a public place. The justices found that the knife was one, the carrying of which in a public place was an offence under section 139, and they state the question for the opinion of the High Court is:

"whether in finding as we did that the knife was one the carrying of which in a public place is an offence was a correct determination or decision in law?"

We were shown one of the knives in question, there being no difference between the two. What we observed was that when you first open it manually you cannot then fold it back. You have first to press a button on it in order to fold it back, so that when fully opened, the result is that it requires to be unlocked.

I look next at section 139 in so far as it is relevant:

"(1) Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence. (2) Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocketknife. (3) This section applies to a folding pocketknife if the cutting edge of its blade exceeds three inches."

Appearing for Mr Harris, Mr McGuire said that the only question in the case is whether the presence of the locking mechanism is sufficient to prevent it being a folding pocketknife. He points out that this is a penal statute and, accordingly, he submits, clear words are required. They are not, he says. There is nothing in the section which says that the presence or absence of a locking device affects the matter. The court asked him how far he took the argument. What, for example, of a knife which required a screw driver to undo a screw before it could be unlocked and folded back into the closed position? His answer was that it would be still a folding knife because it could be, albeit by a somewhat lengthy process, folded away. Again, the court asked him what he submitted was the thinking behind the statute. He accepted in this context that it does make a difference if the knife can be folded readily away. He accepted that it is obviously a more effective stabbing weapon if it is locked, for the very plain reason that without a lock there is a dangerous tendency, dangerous, that is to say, from the point of view of the wielder, to fold on to the wielder's hand.

Mr Giovene appeared for the other defendant, Mr Fehmi. His arguments were somewhat different. He stressed the other side of the coin. He submits that it is not more dangerous for being locked. He says that from the point of view of the user, it is much safer because it will not come back upon his hand. Mr Giovene went so far as to describe it as a safety device. Again, he would not agree with Mr McGuire about the screw to which I referred a little while ago, because Mr Giovene says that the section covers manual folding, and if it is necessary to use a screw driver in order to undo the locking device, then, this is mechanical folding and not manual folding. There was some discussion about what is called a switch blade. As I understand it, that means that by pressing a button a blade will automatically fold outwards and, again, by pressing a button, it will automatically fold in again. Since this is a pivotal device and Mr Giovene was stressing the element of pivoting, I asked him why that would not cover the switch blade. His answer is that it does not cover the switch blade because the section is concerned to cover manual folding and not mechanical folding.

For my part, I cannot accept his argument in this respect, because that would certainly involve importing a number of additional words into the section. His basic argument, as I have already indicated, is that to fold the blade it has to have a pivot. If it is pivoted, he asked rhetorically, how can it be said that because it has a locking device it is no longer a folding pocketknife? Two hands, he stresses, are required to open this type of knife. That sharply differentiates it from a flick knife. The locking device, he submits, cannot change the nature of the animal. The question is whether it folds open and folds shut.

For the Director of Public Prosecutions in each case, Mr McGuinness answers the question from the court as to the thinking behind the statute by saying this. When the knife is locked it becomes in effect a fixed blade knife and the intention of the statute is to prevent the carrying of such a knife. I accept that point.

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.

For these reasons, I would give the answer to the questions in each case, that the tribunals were right to find as they did, and I would dismiss the appeals.

JUDGMENTBY-2: POPPLEWELL J

JUDGMENT-2:
POPPLEWELL J: I agree.

DISPOSITION:
Appeals dismissed.

SOLICITORS:
Rance & Co; R Voss & Son; Crown Prosecution Service, Inner London.