Strict Liability, Ignorance of nature of weapon no excuse
Regina v Densu
(1997) The Times, December 10 Court of Appeal
The Statute
Section 1 of the 1953 Act provides: "(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 . . ."
The court, said that Densu had been involved in a road traffic accident to which the police were called.
They found on the floor beside the driver's seat of Densu's car a metal telescopic extendible baton. It was common ground that that baton, known as an asp, was an offensive weapon per se. Densu's explanation was that he had found the baton in a car which he had valeted and was told that it was an aerial. He had used it as a lever for his trolley jack but had not seen it in its extended form and did not know that it was a weapon. On those facts the judge had ruled that he had no defence.
The court were unable to accept counsel's submissions that lack of knowledge was a matter capable of founding a reasonable excuse defence. The defence of reasonable excuse only arose once it was accepted and proved that a defendant was in possession of an offensive weapon.
The question then for the jury was whether the defendant had a reasonable excuse for having with him that offensive weapon. As a matter of principle it could not be possible for a defendant to argue, once found to have had with him an offensive weapon, that he did not know it was an offensive weapon.
The Act was aimed at eradicating the carrying of dangerous weapons in public. The whole purpose of the Act was to provide strict liability in respect of objects regarded as dangerous.
To allow lack of knowledge to be raised as a reasonable excuse defence defeated the purpose of imposing strict liability in respect of the possession of such a weapon, where the object was an offensive weapon per se. It was not permissible to combine lack of knowledge with an explanation for use of the weapon so as to provide a reasonable excuse.
The Decision
Where an accused person was charged with having an offensive weapon in a public place, a claim that he did not know that the article in question was an offensive weapon could not amount to the defence of reasonable excuse within the meaning of section 1(1) of the Prevention of Crime Act 1953.
The Court, so held dismissing an appeal by Densu against his conviction on a plea of guilty to having an offensive weapon contrary to section 1(1) of the 1953 Act, after an adverse ruling at Crown Court.
COMMENT
Reasonable Excuse
The common law did not prohibit the carrying of weapons for defence or even offensive purposes. The law was changed by s.1(1) Prevention of Crimes Act 1953.
From the facts (carried under the driver's seat) the suggestion is that this was for defence.
The prohibition is directed at offensive weapons - "offensive2 denotes "for attack rather than defence", but courts have largely ignored this.
In Evans Hughes [1972] Crim.L.R. 558 it was said, "It may' be a reasonable excuse for the carrying of an offensive weapon that the carrier is in anticipation of imminent attack and is carrying it for his own personal defence, but it is abundantly clear to my mind is that this Act never intended to sanction the permanent or constant carriage of an offensive weapon merely' because of some constant or enduring supposed or actual threat or danger to the carrier. People who are under that kind of continuing threat must protect themselves by' other means, notably' by' enlisting the protection of the police, and in order that it may be a reasonable excuse to say', 'I carried this for my own defence', the threat for which this defence is required must be an imminent particular threat affecting the particular circumstances in which the weapon was carried.''
The strictness of this test is illustrated by Bradley v Moss [1974] Crim LR 430 a juvenile was found in possession of four offensive weapons. (A length of polished steel, a two foot length of cycle chain, a metal clock weight, and a studded glove.) He was carrying them because some older youths had either chased him or threatened to assault him. Prior to his arrest he had reported those incidents to the police; and some two weeks after his arrest he was attacked by a gang of youths, as a result of which he received hospital treatment. The justices acquitted him, but on appeal the divisional Court directed a conviction; the Evans V Hughes principle did not provide a defence in the circumstances of the instant case. It was said that the justices had given an unduly wide meaning to the reasonable excuse provision.
Another knifes case is DPP v Hynde Reported (1997) The Times, July 18 where it was held that a butterfly knife was necessarily an article for use for causing injury to the person and judicial notice could be taken of that fact.
The QBD Court so held when allowing an appeal by the prosecution by way of case stated against the acquittal by a stipendiary magistrate of having with her in an aerodrome an article made for use for causing injury contrary to section 4(2)(c) of the Aviation Security Act 1982.
In the schedule to the Criminal Justice Act 1988 (Offensive Weapons ) Order (SI 1988 No 2019) a butterfly knife was defined as: "a blade enclosed by its handle, which is designed to split down the middle, without the operation of a spring or other mechanical means to reveal the blade".