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1. LORD JUSTICE SIMON BROWN: Kevin Paul Warne appeals by way of case stated from the adjudication of Suffolk Justices sitting at Ipswich, on 11th December 1996, convicting him under section 1(1) of the Prevention of Crime Act 1953 of having an offensive weapon in a public place, namely a pickaxe handle.

2. Section 1(1) reads as follows:

3. Section 1(4) defines an offensive weapon as:

4. Although the facts found are stated by the Justices in very considerable detail, I think it sufficient, having regard to the narrow basis on which this Appellant was convicted, to summarise them really quite briefly. It was not in dispute that at about midnight on 14th April 1996 the appellant had with him in a public place, namely Nacton Road, Ipswich, a pickaxe handle. He was first seen with it by Special Police Constable Collins who was driving past. SPC Collins stopped his car and telephoned for uniformed officers to come. PC Ramsey and PC Gilmore duly arrived in a marked police car and stopped near the Appellant. When they called on him to stop, he refused, saying that he was going home to 16 Campbell Crescent and that he would meet them there. They then followed him for the two or three minutes it took to reach that address.

5. On the pavement outside his house the appellant turned, swung the pickaxe handle behind him and shouted to the officers "Get back". The appellant was then led into the house by a woman to whom he handed the pickaxe handle whereupon he invited the officers in. Having spoken to him inside they arrested him to prevent a breach of the peace. Later on they took him to the police station where he was charged with being in possession of an offensive weapon.

6. The Justices rejected the appellant's submission of no case to answer and, after he had then elected not to give evidence, convicted him. They did so on the basis that the pickaxe handle was an article adapted for use for causing injury to the person. They expressed their opinion to that effect in paragraph 19 of the Case Stated as follows:

7. The question posed for the opinion of this Court is

8. Simple though at first blush this case appears, it is perhaps not entirely so. One's starting point must be the Court of Appeal's decision in Williamson 67 Cr App R 35 where in a frequently cited passage Geoffrey Lane LJ said this (at page 38):

9. Geoffrey Lane LJ then pointed out that:

10. That of course was in relation to a jury trial. Adapting that principle recently to the situation arising in a Magistrates' Court, this Court in Stephen Chen v Director of Public Prosecutions (unreported 4th March 1997) - a case stated appeal - said this:

11. That passage in turn, however, must be read subject to this, that in "rare" cases (the word rare in this context comes from Williamson itself at page 39) it may be possible and appropriate for the Court to rule on the matter. Indeed, in the Court of Appeal in Simpson 78 Cr App R 115 Lord Lane, by then Lord Chief Justice, ruled that a flick-knife is necessarily an article made for use for causing injury to the person, ie a Category One type of weapon to use the Williamson categorisation. As Lord Lane said of flick-knives at page 120:

12. He also pointed out:

13. That, however, I repeat, was said in a Category One case.

14. How much assistance does that provide in the present case which is concerned with whether or not an article is within Category Two? To my mind very little. Nor to my mind is any greater help to be found in the Court of Appeal decision in Formosa [1991] 92 Cr. App R 11, a case concerned with section 5(1)(b) of the Firearms Act 1968 and the very different question of what are prohibited weapons, ie

15. The article there in question was a Fairy Liquid washing-up bottle filled with hydrochloric acid. Lloyd LJ said at page 13:

16. He then observed that the offence under section 5(1)(b) clearly cannot depend upon the intention of the user and later added that the appellants:

17. Instances of Category Two weapons suggested by defending counsel in the Crown Court in Williamson were:

18. Miss Bryant for the appellant before this Court fixes in particular upon that last citation from Simpson and submits that, in the absence of any finding by the Justices in the present case that the pickaxe handle used here was deliberately detached from its head so as to make it a useful weapon, the Justices' conclusion must be held defective. There was simply no evidence before the Justices in the present case as to the time when, or the circumstances in which, or even by whom, the handle came to be separated from the axe head.

19. What then is submitted in response to that, to my mind powerful, argument? Mr Cole for the prosecutor does not contend that a pickaxe handle whenever found separate from its head must necessarily be regarded as an article adapted for use for injuring people, in the same way as flick-knives in Simpson were held to be articles made for such use. Clearly such a submission would be impossible. Whereas in Category One cases the question one asks is whether the particular form of article is, generally speaking, to be regarded as one made for the purpose of causing physical injury, that does not seem to me the correct approach in a Category Two case. In Simpson at page 118 it was pointed out that:

20. It seems to me that very different considerations arise when one turns to consider whether a particular article has been "adapted" for the use in question.

21. What Mr Cole submits here is that there is an overlap in the evidence to be explored by the tribunal of fact in deciding respectively whether or not an item is offensive per se, or is intended for use for causing injury. Once an item has lost its original use, he submits it is appropriate to look at the factual circumstances of how it was actually being used in the public place on the occasion in question when answering the question whether it has been adapted for use to cause injury.

22. For my part I would reject that submission. The one additional authority upon which he seeks to rely to support such an approach, Houghton v Chief Constable of Greater Manchester [1987] 84 Cr App R 319, to my mind does not help him. That case concerned a police truncheon, a Category One offensive weapon. I repeat, Category Two articles raise different considerations. It seems to me quite impossible to judge whether or not at the time of the adaptation of an article it was being adapted for the purpose of violent use merely by reference to how in fact it was being used on some other (perhaps much later) occasion.

23. In this very case it was the prosecution's alternative submission before the Justices that if they were not satisfied that this pickaxe handle fell within Category Two they should go on to consider Category Three. In the event, having reached the conclusion that it was a weapon offensive per se on the Category Two basis, they did not think it necessary to proceed to that further stage. Had they done so and convicted the Appellant on that alternative footing it would have seemed to me quite impossible to fault such a conviction. As it is, however, in my judgment it is not possible to sustain the conclusion that the pickaxe handle used here was in Category Two, absent any finding by the Justices that when the pickaxe handle lost its head it was, at that point, being adapted for use for violent ends.

24. By way of footnote I would add just this: although this legislation is now of some considerable age, it seems to me by no means entirely satisfactory. Why, one wonders, should a club and a bayonet be weapons offensive per se but a baseball bat and a carving knife not be? Why should a bottle that one breaks specifically with a view to using it there and then as a weapon be an offensive weapon per se, because it has been adapted for the purpose of violence, whereas a bottle accidentally broken and then picked up for use as a weapon not be. Similarly a chair leg (Counsel's illustration in Williamson) depending (as with the pickaxe handle in the present case) whether it was broken off for use as a weapon or merely found detached and thus available for use. Of course, the distinction may not be decisive; there is always the possibility of moving the case on a Category Three basis. But the result of determining an article to be offensive per se is of some importance: the prosecution then need not prove that it was being carried with the intention of causing injury; rather it becomes up to the Defendant to prove a reasonable excuse for carrying the article in question.

25. The appeal must therefore be allowed. In the ordinary way in those circumstances, it might well have been appropriate to remit the matter to a differently constituted Bench of Justices for them to embark afresh upon a trial on the alternative (Category Three) basis for conviction put forward by the prosecution. We are told, however, that in the event sentence in the present case was passed in the form of a Community Service Order and that that has now been served. I would therefore merely answer the question posed in the negative, allow the appeal and quash the conviction.

26. MR JUSTICE OWEN: I agree and there is nothing I can usefully add.

27. MISS BRYANT: My Lord, Mr Warne was legally aided without contribution and I therefore make no application in the circumstances

28. LORD JUSTICE SIMON BROWN: That is not a matter, Mr Cole, of which you would wish to express any view, I dare say?

29. LORD JUSTICE SIMON BROWN: Of course we make an order for legal aid taxation.