A police officer stopped a car being driven by Glidewell, a minicab driver, he noticed a piece of wood sticking out from beneath the carpet in the driver's footwell. He also found a rope cosh.

In interview, Glidewell said that those items had been found in the car a couple of nights earlier by a passenger. He had put them into the front of the car intending to clear them out later, but he had forgotten.

The issue for the jury was whether Glidewell had a reasonable excuse. Glidewell submitted that in summing up the judge had wrongly withdrawn from the jury the materiality of forgetfulness in relation to reasonable excuse.

In R v McCalla (1988) 87 Cr App R 372 it was said that "to have forgotten that one has an offensive weapon in the car that one is driving is not in itself a reasonable excuse" but "when such forgetfulness is coupled with particular circumstances relating to the original acquisition of the article" the combination might be a reasonable excuse for having the offensive weapon.

On behalf of the Crown, counsel drew attention to the fact that McCalla's appeal was dismissed.

There was a significant difference between the facts in McCalla and those in the present case, namely that McCalla himself had introduced the offensive weapon into the glove compartment of his car, having found it on a business site about a month before his arrest.

It was apparent in the present case that Glidewell was not responsible for introducing any of the items into his vehicle.

Depending on the circumstances of the particular case, forgetfulness MIGHT VERY WELL be relevant to whether or not a defendant had a reasonable excuse for possession of an offensive weapon. The circumstances of the present case, including the facts that Glidewell had not introduced the weapons into his car and that they had been in his possession a comparatively short time, and his evidence of how busy he was on the relevant night which bore on his forgetfulness, all were matters which manifestly made the relevance of forgetfulness to the question whether his excuse for possession was reasonable a matter for the jury.

That being so the judge had misdirected the jury when he said that forgetfulness was not an excuse. Accordingly, the verdicts were unsafe.

The Decision

Forgetfulness might be relevant to whether or not a defendant had a reasonable excuse for possession of an offensive weapon.

The Court of Appeal, so stated when allowing an appeal by Glidewell and quashing his conviction at the Crown Court on two counts of having an offensive weapon.

Comment

Knowingly has with him?

This phrase has been held to involve an element of knowledge.

In Cugullere [1961] 1WLR 858 the Court of Criminal Appeal held that the phrase under consideration ‘must mean "knowingly has with him in any public place". The court went on to make clear that it meant that the defendant must knowingly have possession of the article in question. If a person forgets that he has possession of an offensive weapon, the Court of Appeal has had held that he nevertheless continues to "have it with him" McCalla (1996) The Times, October 3; (1988) The Times, April 12. The Court have now distinguished that case.

McCalla had been contradicted by the the Court of Appeal in Russell (1984) 81 Cr App R 315; [1985] Crim L R 231.

Rob Jerrard