Chewie, an interesting thing, someone on BB had a question about the deegan ruling, which caused me to go dig up the transcript. It makes fascinating reading. I dunno if you've read it through? I think all transcripts are fairly heavy going, but this is pretty clear as they go....
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Deegan v Regina
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LORD JUSTICE WALLER: On 24 March 1997 in the Crown Court at Harrow the appellant originally pleaded Not Guilty to possessing a bladed article in a public place. The judge however ruled that he was bound by two decisions of the Divisional Court in Harris v DPP and Fehmi v DPP , 96 Cr.App.R. 235. The judge ruled that the interpretation placed on a bladed article in those cases applied to the bladed article found in the possession of the appellant in the instant case. Having so ruled the appellant then pleaded Guilty. The judge discharged the appellant absolutely and certified that the matter was suitable for appeal on the basis that the Divisional Court was not made aware of the Parliamentary records of the debate which led to the enactment of Section 139 of the Criminal Justice Act 1988. The judge certified that "Statements by two Ministers of State promoting the Bill on behalf of the Home Office clearly sought to exclude the type of bladed article that is the subject of the indictment in the case before me. I also believe that the legislation is ambiguous and that the literal interpretation is liable to lead to an absurdity."
The Facts
On 9 September 1996 the appellant was stopped by two police officers outside 64 Pinner Road Harrow at approximately 1.50am. He was found to be in possession of what the prosecution contended was "a bladed article". The knife was not produced before us but was produced before the judge. It can most accurately be described perhaps as a pocket knife which was capable of being opened and locked into an open position, and equally capable of being folded once the mechanism had been operated to unlock the blade. In the result the appellant was charged with being in possession of a bladed article contrary to Section 139 of the Criminal Justice Act 1988.
Current Law
Section 139 of the Criminal Justice Act 1988 reads as follows:-
"(1) ... 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 sub-section (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocket-knife. (3) This section applies to a folding pocket-knife if the cutting edge of its blade exceeds three inches."
There is no dispute that in the instant case the blade did not exceed three inches.
The Divisional Court in Harris v DPP and Fehmi v DPP 96 Cr.App.R. 235 held that to be "a folding pocket-knife" the blade has to be readily and immediately foldable at all times simply by the folding process. It held that a knife which on opening automatically locks and cannot be folded until a button has been pressed is not "a folding pocket-knife" within the meaning of Section 139. It is clear from the judgment of the Divisional Court, given by McCowan LJ, that attention was paid to what the thinking behind the statute might be. Ultimately McCowan LJ accepted the submission on behalf of the prosecution in that case that "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." McCowan LJ finally concluded his judgment
"to be a folding pocket-knife 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." (see pp 239-240).
The appellant accepts that the instrument carried by him in the instant case would not be a folding pocket-knife within the definition as explained by McCowan LJ because it too locked into position and required the pressing of a button before the folding process could be commenced.
Before the judge, and on this appeal, Mr Hargreaves has sought to persuade us
(1) that the conditions of Pepper v Hart [1993] AC 593 are applicable so as to make admissible Ministerial statements made whilst the Bill, which ultimately became the Criminal Justice Act 1988, was being debated in Parliament;
(2) that accordingly this court should look at certain passages in Hansard where he suggests that statements were made demonstrating the true intention of Parliament in relation to section 139; and
(3) that, as he would put it, those statements introducing amendments to section 139 clearly showed that the type of knife being carried by the appellant on this occasion, and by those who appealed to the Divisional Court ( Fehmi and Harris), were intended to be excluded from the section.
Without objection from Mr Leist on behalf of the Crown we have in fact examined the material from Hansard sought to be relied upon by Mr Hargreaves de bene esse. However, it is important to establish whether the conditions in Pepper v Hart have been complied with so as to make admissible the material relied upon. In the speech of Lord Browne-Wilkinson at p.640 with which all their Lordships, other than Lord Mackay, agreed, he said
"I therefore reach the conclusion, subject to any question of Parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear."
The extracts to which our attention has been drawn include extracts from the debates whilst the Criminal Justice Bill was being considered in Committee and when the Bill was being considered in the House of Lords itself. The background to section 139 appears to be clear. That is to say that having regard to the increase in robberies, including street robberies involving sharp instruments, and the carrying of knives, the Government became convinced there was a serious problem and that strong measures were needed to deal with the same. The Prevention of Crime Act 1953 makes it an offence to have an offensive weapon in a public place without reasonable excuse or other lawful authority. It breaks down offensive weapons into two categories: those articles which are offensive weapons per se and those articles which the possessor intends to use to cause injury. For offensive weapons per se the onus is upon the accused to prove on the balance of probabilities that he has lawful authority or reasonable excuse for having the weapon with him. For all other articles, including most knives, the onus is on the prosecution to prove beyond reasonable doubt that the possessor intends to use it to cause injury. It was felt that the threshold of having to prove beyond a reasonable doubt that a knife carrier intended to cause injury was too high. Accordingly, a section was being drafted for the purpose of placing the onus on the person found in possession of a knife or bladed instrument to establish that he had a good reason for having the knife or bladed instrument with him in a public place. The section seems to have been drafted in different forms at different stages. In Committee of the House of Lords on 8 November 1987, the Earl of Caithness moved an amendment to insert a clause in the Criminal Justice Bill which was to read as follows:-
"(1) Any person who has with him in a public place without good reason or lawful authority any article which has a blade or is sharply pointed (except a pocketknife with no blade which is longer than three inches or which locks when open ) [our underlining] shall be guilty of an offence. (2) Without prejudice to the generality of subsection (1) above, it shall be a defence for any person charged with an offence under subsection(1) above in respect of any article to prove that he had the article with him - (a) for use at work; (b) for religious reasons; or (c) as part of any national costume. ....."
On 23 November 1987 a further amendment was moved which put the position even more clearly. By that amendment the section was to provide as follows:-
"(1) Subject to subsection (1C) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence. (1A) Subject to subsection (1B) below, this section applies to any article which has a blade or is sharply pointed except a pocketknife. (1B) This section applies to a pocketknife if - (a) it has a blade which is longer than 3 inches; or (b) it has a blade which, when the knife is open, locks automatically or can be locked manually .[again our underlining]. (1C) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place ..... "
Ultimately, when the Criminal Justice Bill came before Standing Committee H on 8 March 1988, certain amendments had been made to the section. The subsections dealing with the pocketknife exception read as follows:
"Subject to subsection (3) below this section applies to any article which has a blade or is sharply pointed except a pocketknife. (3) This section applies to a pocketknife if the cutting edge of its blade exceeds three inches."
It will thus be seen that there had been removed from the equivalent of subsection (3) the provision which made the section apply to a pocketknife if "it has a blade which when the knife is open locks automatically or can be locked manually."
On 8 March 1988 however an amendment was moved to the section to insert the word "folding" before the word "pocketknife" in the above subsection. That amendment was ultimately accepted and in the result the subsections read as they now do in section 139 as follows:
"(2) Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocket-knife. (3) This section applies to a folding pocket-knife if the cutting edge of its blade exceeds three inches."
In moving the amendment Mr John Patten, The Minister of State at the Home Office, explained the Government thinking saying:
"When the Bill was printed for the other place, we arrived at the original formulation of the clause mindful of the important and pressing need to ensure that Stanley knives and other knives with sliding blades which can lock open and do terrible damage, should not benefit from the exemption. We do not believe that someone should be allowed to produce from his pocket a sharp bladed instrument of 3 in or less, which has a flick effect or a gravity effect or slides out and can then be locked into place. .... In our discussions with the manufacturers with whom we have consulted widely in the interests of industry and employment in Sheffield, it emerged that we could catch those vicious sliding knives, while at the same time exempting ordinary pocket knives that lock into the open position, which is what the amendment seeks to do. Folding, locking pocket knives, which I am advised that many people carry because they are safer to use than the non-locking variety, will be excepted from the general offence, which is right, but the exception will apply only to folding pocket knives with a sharpened blade of 3 in or less. ..... We wish to keep within the law those people who carry ordinary pocket knives. When an officer finds a person in possession of a pocket knife in a public place he has only to check the length of the blade and ensure that the knife folds. If the knife does not fulfil those criteria, the possessor will have to show a good reason for having the knife with him."
When the matter came before the House of Lords, Earl Ferrers explained the amendment. He said that the amendments then being discussed were the result of discussions with knife manufacturers in Sheffield. Then he said:
"They thought that it would be helpful to put on the face of the Bill a clearer definition of the maximum permitted length of a pocketknife. More importantly, they pointed out that locking pocketknives are now widely sold and used because they are safer for some purposes than non-locking knives. There is less risk of the blade closing accidentally on the user's fingers. So we concluded that we should not exclude small pocketknives from the exemption just because they had locking blades. What we want to exclude is knives with sliding blades. The amendments achieve that by limiting the exemption to small pocketknives with folding blades."
What is apparent from the debating of the amendments being considered between November 1987 and July 1988 is that
(1) at one stage it was intended that the sections should be made expressly to apply to a pocketknife whose blade (however long) when opened locked automatically or could be locked manually;
(2) there was then a decision not to make it so expressly apply and it was contemplated that the word pocketknife would exclude from the section "locking pocketknives"; and
(3) finally that the word "folding" was introduced in order to ensure that someone should not be allowed to produce from his pocket a sharp bladed instrument of three inches or less which has "a flick effect or a gravity effect or slides out and can then be locked into place."
What was not foreseen by those proposing the amendments was that by introducing the word "folding" that word was open to the interpretation placed upon it by the Divisional Court. Furthermore, what also was not foreseen by those proposing the amendments was that it was easy enough with the aid of the previous drafts of the Bill to see that a knife which locked automatically or which could be locked manually was being taken out of the express provision applying to that type of pocketknife and thus to believe that in some way "locking pocketknives" were now intended to be exempted. But it has to be said there appears to have been no debate as to precisely what was intended by use of the words "locking pocketknife". That debate might well have taken place if in addition to the word "folding" a further obvious amendment had been added to cover the word "folding pocketknife". Such an amendment could have clarified what type of "locking pocketknife" Mr Patten and Earl Ferrers had in mind to be included in the phrase "folding pocketknife".
We have not found this an easy case. We can see the force of the argument that the Pepper v Hart conditions are fulfilled. It can be said with force that "folding" pocketknife could mean either a pocketknife which has no capacity to lock when its blade is open, or it includes those that do but which can still be folded. We can also see force in the argument that it was intended to exempt from the general offence provided for by the relevant section of the Bill "folding, locking pocketknives" with blades of less than 3 inches, that being the clear expression of intention expressed by Mr Patten and Earl Ferrers when seeking to persuade the Committee and then the House of Lords to accept the section in its final form including the word "folding", governing pocketknife.
The difficulty that we have is best explained as follows. The section as at one time drafted, expressly brought within the general offence a pocketknife which had a blade which when opened locked automatically or could be locked manually. That was unambiguous because the section would as a result have caught any knife whose blade locked including, for example, one that locked by pressing a button or unlocked at the press of a button, or could be more permanently locked by the turn of a screw the relevance of which will become apparent. When, in the drafting, it was decided to omit the express provision, what was left was an exception from the section a "folding pocketknife", but without precise definition. If one poses the sort of questions that McCowan LJ posed to Counsel in the cases of Harris and Fehmi, and asked whether it was intended by the rather broad statements made by Earl Ferrers and Mr Patten that such implements were to be excluded, it is not easy to say with confidence what their answers would have been. For example, would a pocketknife which could be unfolded by the press of a button, and folded by the press of a button, be a folding pocketknife and one which the Ministers would have confidently said should be excluded from the general offence under the section? Would a knife that needed a screwdriver before it could be unfolded, and then required a screwdriver again to allow the knife to be folded, be a folding pocketknife? Would, putting it more bluntly, the Ministers have been absolutely happy to sanction the putting in of the words which originally were used to bring a pocketknife under the section, as appropriate to describe a pocketknife that should now be expressly excluded e.g. one that locks automatically, as opposed to manually?
Although in one sense the statements made by Mr Patten and Earl Ferrers were clear, in that they undoubtedly thought that they were excluding from the section not just pocketknives that fitted the Divisional Court's interpretation of "folding", but some which "locked" when the blades were open, we think that in the sense required by Pepper v Hart, they were not clear. They were not clear because "locking pocketknives" is itself an ambiguous phrase. If in answer to that point it were said that the court could attempt to define the phrase by for example saying that it should only include "locking pocketknives" that were manually locked and manually unlocked, or which required the use of two hands to lock the blades or unlock the blades, that would be asking the court to go beyond its proper function. It would no longer be interpreting the intention of Parliament, it would be writing the legislation it thought was reasonable.
In those circumstances we do not think that the conditions of Pepper v Hart are fulfilled and we do not think that it is legitimate to take into account the statements of Mr Patten or Earl Ferrers. We furthermore take the view that to construe the phrase "folding pocketknife" in any other way than that which it was construed by the Divisional Court would be impermissible. Obviously there is force in the view that Parliament really should not have brought what used to be called pen knives which have devices for locking the blades for reasons of safety, within the penal provisions of the Statute. A carrier of such should, it can be said, not have been required by Parliament to provide a "good reason" for having the article with him. However, it seems to us that "folding" in its ordinary meaning, means "foldable" at all times without the intervention of some further process, namely the pressing of a button or release of a catch, and that if any form of "lock knives" are to be brought outside the legislation, that will need clearer definition.
The final point to make will be said to be a slightly unfair one in the light of the difficulties in finding the time to put forward legislation. But the decision of the Divisional Court was in July 1992. There does not appear to have been any move to amend the legislation. That may demonstrate either that there is no great pressure to amend the legislation and not the perceived unfairness on the part of carriers of pocketknives whose blades can be locked as above described. Alternatively, it may demonstrate that there are real difficulties in defining precisely that form of pocketknife with a locking device which should fall outside the section, and, that the better view is, that albeit the present legislation will place an onus on some persons to provide a reason for carrying a knife which at first sight may seem unreasonable, that is an inconvenience which the few should suffer for the benefit of the community as a whole.
Accordingly we would dismiss the appeal.
Application for leave to appeal to the House of Lords refused, but point of general public importance certified as follows:
'That the article 'a folding pocket knife' as mentioned in section 139(2) Criminal Justice Act 1988 as being an exemption subject to subsection (3) to the offence made by section 139(1) means a knife that has a blade that folds, whether or not it (the blade) is capable of being opened and locked into an open position and equally capable of being folded once the mechanism had been operated to unlock the blade.'
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Fascinating stuff.
