Veasey, R v [1998] EWCA Crim 1773 (4th June, 1998)

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Terence VEASEY, R v. [1998] EWCA Crim 1773 (4th June, 1998)

LORD JUSTICE HUTCHISON: On 7th November 1997 in the Crown Court at Norwich the appellant was convicted and sentenced as follows: on count one, dangerous driving, nine months' imprisonment, disqualified for two years and ordered to take an extended driving test thereafter; on count two, unlawfully having an offensive weapon in a public place, 15 months' imprisonment; and on count three, common assault, four months' imprisonment. Those sentences were all concurrent with each other. The total therefore was 15 months' imprisonment.

The matter arose in this way. On 12th April 1997 about noon two young women, Sharon Blanch and Leslie Rogers, were riding their horses along a narrow country road in Hempstead. The appellant who was driving a Suzuki jeep motor vehicle approached them at some speed from behind. The lane was such that there was insufficient room for him to pass and he shouted at the riders in an aggressive manner, requiring them to move out of his way. He sounded his horn several times and he shouted abuse at them. He drove his vehicle within two feet of the back of Miss Rogers' horse. He drove past very close to the horse, forcing Miss Rogers to mount the bank at the side of the road. Continuing to shout abuse, he drove up to the rear of Miss Blanch's horse and then passed within a foot of that animal. Having passed the horses, the appellant stopped his vehicle and approached Miss Blanch. He swore at her and struck her across the right leg above the knee. It was the Crown's case, based on her evidence, that he struck her with a metal object, part of a implement called a krooklock which is an anti-theft device of a sort familiar to most people, which can be attached to the steering wheel of a vehicle. He then returned to his car and drove away. Fortunately Miss Blanch did not sustain any very serious injury but she did suffer bruising of her leg.

I should add that Mr Ridley, on behalf of the prosecution responding to this appeal, tells us that the evidence was to the effect that when he was driving at or past the horses the appellant uttered threats, along the lines that he would pull her off her horse and give her "what for" or words to that general effect.

Miss Blanch's evidence was that when the appellant got out of the car he had a krooklock in his hands, that he pulled it into its two separate parts, took several paces towards her and hit her with it. Miss Rogers confirmed Miss Blanch's evidence in general terms. There was, however, some evidence the other way as we shall show.

The other witness for the Crown was PC Hopes who arrested the appellant at about 7.15 that evening. He searched the Suzuki jeep, but no krooklock was discovered in it. In interview the appellant denied having anything in his hands when he got out of the vehicle and denied having a krooklock in the vehicle at the material time. He gave evidence in his own defence at the trial and repeated what he had said to the police, namely that he did not have a krooklock in his vehicle, and did not remove one from the vehicle before the police searched it.

The grounds of appeal assert that in relation to count two the assistant recorder misdirected the jury as to the proper ingredients of the offence of possession of an offensive weapon. The relevant parts of section 1 of the Prevention of Crime Act 1953 are in the following terms. Subsection (1) reads:

It is material that the long title to the Act is an, "Act to prohibit the carrying of offensive weapons in public places without lawful authority or reasonable excuse." It will be appreciated, therefore, that there are some weapons which are offensive weapons per se and others which are not ordinarily offensive weapons, but may become so by virtue of the intent with which they are carried. What the learned judge said when directing the jury was this:

"The second count on the indictment is being in possession of an offensive weapon. The Crown have to make you sure that he had a krooklock with him. You must also be sure, before you can convict, that he had it at that time for the purpose of causing some injury. Essentially, if you are sure of the prosecution case as it is put, the offence is proved because the prosecution case is that he had the krooklock and he threatened the rider with it, and he hit her; he hit Miss Blanch. The hitting of her is a separate offence -- but so is being in possession of the krooklock to cause that injury. There are two separate offences.

"If you find on the evidence that is before you that he had the krooklock, and that he had it for the purpose of causing -- assaulting this horse rider, Miss Blanche, then you are giving to find the offence proved. However, if you are not sure had he had it, then you must return a verdict of not guilty. Again, it is a straight conflict on the evidence as to whether he did, or whether he did not. He says quite clearly, and quite unambiguously, that he did not. There was no krooklock found in the car when it was inspected by the police later on in the day. He says that he had not done anything in the meantime to remove a krooklock from the car because there was not one there in the first place."

The judge then went on to remind the jury that he had also said this his wife had an orange coloured krooklock and also to remind them of the evidence of the independent witness, that he had not seen any such article. He invited them to take account of that and all other aspects of the matter and he continued as follows:

The relevant authorities include a case to which we were referred, Ohlson v Hylton (1975) 1 WLR page 724. That was a case in which a carpenter, carrying his tools in the underground, became involved in an altercation with another passenger. Taking a claw hammer from his tool bag, he struck him. The question was whether he was rightly convicted of an offence under section 1(1). The question was considered in some detail in a reserved judgment in the Divisional Court of the Queens Bench Division and the judgment of the court was given by Lord Widgery, CJ. He said this at page 727:

"The defendant's argument, both in this court and the court below, was that the section did not extend to the seizing and use of a weapon for the purpose of causing injury if the weapon was seized only at the moment when the intention to assault arose, and that the type of activity contemplated by the section is not the use of a weapon for offensive purposes but the premeditated carrying of a weapon for those purposes. Upon this approach it is argued that the weapon was never carried with the necessary intent, and that the fact that the intent must have been formed at a brief moment before the blow was struck is not enough to satisfy the terms of the Act."

"In the absence of authority I would hold that an offence under section 1 is not committed where a person arms himself with a weapon for instant attack on his victim. It seems to me that the section is concerned only with a man who, possessed of a weapon, forms the necessary intent before an occasion to use actual violence has arisen. In other words, it is not the actual use of the weapon with which the section is concerned, but the carrying of a weapon with intent to use it if occasion arises."

"Lord Goddard's reference to a person 'going out' with a weapon might have been taken to mean that the matter had to be judged as at the moment when the defendant set out from home, but this point is dealt with in the next authority, namely, Woodward v Koessler (1958) 1 WLR 1255. In that case a boy had gone out armed with a sheath knife intending to use the knife to break into a cinema. Surprised by the approach of the caretaker, he then threatened the latter with the knife. Donovan J said, at page 1257:

"'Mr McCowan founds himself on the words 'having it with him', and says that it must be found that the boy took the knife out with him with the intention of causing injury, and Mr McCowan says that in the present case he took it out for the purpose of breaking into the cinema. I do not agree with that narrow interpretation of the words 'having it with him'. I think all one has to do is to look and see, for the purpose of ascertaining what the intention is, what use, in fact, was made of it. If it is found that the person did, in fact, make use of it for the purpose of causing injury, he had it with him for that purpose, and I think that is good enough and, to reinforce to what my Lord has said, the evidence shows that he did have it with him for the purpose of causing injury.'

"I accept that it is unnecessary for the prosecution to prove that the relevant intent was formed from the moment when the defendant set out on his expedition. An innocent carrying of, say, a hammer can be converted into an unlawful carrying when the defendant forms the guilty intent, provided, in my view, that the intent is formed before the actual occasion to use violence has arisen."

Lord Widgery went on to say that Donovan J's words had been too widely interpreted and referred, with approval, to the judgment of this court in R v Dayle (1974) 1 WLR 181 and again to Lord Goddard's judgment in Jura. Having done so, he stated the principle in the following terms on page 730:

"Accordingly, no offence is committed under the Act of 1953 where an assailant seizes a weapon for instant use on his victim. Here the seizure and use of the weapon are all part and parcel of the assault or attempted assault. To support a conviction under the Act the prosecution must show that the defendant was carrying or otherwise equipped with the weapon, and had the intent to use it offensively before any occasion for its actual use had arisen."

Now, on behalf of the appellant, Mr Spence submits that the direction which we have cited from the learned judge's summing up was quite inadequate to convey that principle, or to inform the jury as to the findings which it would be necessary for them to make before they could find the appellant guilty of this charge. Mr Spence submits, first, that if the appellant only formed the intention to use the krooklock at the moment that he left the car, immediately before assaulting the young woman, that would not be good enough because that would be an intention formed as part of the actual use, after the occasion for the use of the implement had arisen. It would be an example of somebody taking whatever came to hand in order to carry out the assault upon which his attention was immediately fixed.

Furthermore, he submits that even if an intent formed at an earlier stage than leaving the car would have been sufficient, there was no adequate direction to the jury to assist them in determining when and in what circumstances they could find the offence proved on the basis of such an intent: in other words, where the line was to be drawn between an intention formed by someone going out from his home, and an intention formed immediately before the blow is struck.

On behalf of the Crown Mr Ridley, not surprisingly, agrees that the authority of Ohlson v Hylton is binding and is a correct statement of the law. But he argues that there was here evidence on which the jury would have been entitled to find that the appellant had the necessary intent for the purposes of section 1. He refers to the quite long period of abuse and threats that preceded the vehicle stopping. He therefore argues, which is undoubtedly correct, that the present case is not exactly on all fours with the case of Ohlson where the hammer had been seized immediately before it was used to inflict a blow on the victim. He says that the present case comes in the middle ground between the two extremes we have just mentioned, and in such circumstances it is question of fact and degree for the jury to judge, whether the requirements of the section are complied with here. He says that the learned judge's direction was sufficient to convey to them that they must have regard to the entire train of events from the moment the car came up behind the horses to the moment when the blow was struck. He accepts that perhaps the direction could have been in clearer and more explicit terms, but argues that it was adequate, in order to convey to the jury that they must form a judgment about the matter.

Before indicating our conclusions on these arguments, and we should in passing like to pay tribute to counsel on both sides for their cogent and helpful submissions, we should say that the principles derived from the cases, in particular Ohlson but also other cases on this subject, are helpfully summarised in a passage in the eighth edition of Smith and Hogan's Criminal Law at page 461, which is in the following terms:

"After some hesitation, the courts have construed the Act in the light of its long title. It is aimed at the 'carrying' of offensive weapons 'in public places'. It is not aimed at the actual 'use' of the weapon, which can invariably be adequately dealt with under some other offence. In Jura D was holding an air rifle at a shooting gallery when, on a sudden provocation, he shot and wounded a woman. It was held that he had a reasonable excuse for 'carrying' the rifle though not, of course, for using it in that way. But he had committed one offence, not two. It was as if a gamekeeper at a shooting party were suddenly to lose his temper and shoot at someone. If, then, D is lawfully in possession of the article, whether it be an offensive weapon per se or not, his decision unlawfully to use and immediate use of it does not amount to an offence under the Act. In Dayle D took a car jack from the boot of his his car and threw it at P in the course of a fight. In Ohlson v Hylton D, a carpenter, took a hammer from his tool bag in the course of a fight and struck P. In neither case was D guilty of an offence under the Act.

The conclusion we have reached is that the message the jury would have received from the learned judge's direction as to the ingredients of the offence was that if they were satisfied that the appellant struck Miss Blanch with the krooklock, then they should also be satisfied that he had it with him with the intention of causing injury and all the ingredients of the offence were established. If the appellant had the krooklock at all, which he denied, then it cannot sensibly be doubted that when he got out of the car to go and confront Miss Blanch, holding that implement in his hand, he had formed a determination to use it for the purpose for which, almost immediately, he did use it, namely striking and causing injury to Miss Blanch.

However, as the authorities which we have cited show, that it not necessarily sufficient. On the facts of the present case, as it seems to us, and contrary to Mr Ridley's submissions, it must at least be very doubtful whether a jury could have properly concluded that the necessary intent was established on the basis of the prosecution's case. Putting the matter at its highest in the Crown's favour, whether that intent had been established was a question for the jury on which they needed assistance and careful direction so that they appreciated that it was a matter of fact and degree and that they had to apply their minds to the question of when the intent was formed and whether, in the light of their conclusions about that, it could be said that the appellant was carrying the weapon with the necessary intent for the purposes of section 1. They should have been made to understand, in particular, that merely because he had taken it up and almost immediately struck the victim with it, it was not necessarily sufficient to establish that he had the requisite intent.

They did not receive that assistance because, as we have said, the message they would have received from the direction as a whole was that if they were once satisfied that he had and that he used it then that concluded the matter of guilt on section 2. The direction was therefore inadequate and in our judgment the conviction that resulted is unsafe.

It is perhaps understandable how this misdirection came about because, though Mr Spence tells us that he took the point about the time of the formation of intent, the whole emphasis in the trial was concentrated on the factual issue of whether the appellant ever had a krooklock at all. No doubt that distracted the attention of the participants from the necessity to have regard to the legal principles to which we have referred.

In conclusion we would observe that it is really not appropriate in this type of case to include a count under section 1 of the 1953 Act since the charge of assault would be quite adequate, as it would have been in this case, and the sentence could have reflected the use of the weapon if that was a necessary ingredient of the jury's decision.

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England and Wales Court of Appeal (Criminal Division) Decisions

Terence VEASEY, R v. [1998] EWCA Crim 1773 (4th June, 1998)