D [2019] EWCA Crim 45

D v Regina [2019] EWCA Crim 45 is a prosecution appeal under section 58 of the Criminal Justice Act 2003 against a ruling that a folding cut-throat razor was not an article subject to the prohibition on bladed articles in section 139 of the Criminal Justice Act 1988. The Court of Appeal allowed the appeal and ordered that proceedings be resumed.

The respondent pleaded guilty to possession of a class B drug contrary to section 5(2) of the Misuse of Drugs Act 1971 and obstructing a constable contrary to section 23(4)(a) of the same Act. Count 3 charged him with having an article with a blade in a public place contrary to section 139(1) of the Criminal Justice Act 1988. The article in question was a folding cut-throat razor with a blade measuring less than two inches.

On 6 June 2018 the respondent had been stopped by police in the street and searched pursuant to the Misuse of Drugs Act 1971. Officers found in his trouser pocket a folding cut-throat razor in the folded position. It was not disputed that the cutting edge measured less than two inches and that there was no locking mechanism. The respondent asserted in interview that he carried the article in connection with his apprenticeship as a barber and served a Defence statement asserting reasonable excuse.

The defence submitted that the folding cut-throat razor did not fall within the statutory prohibition. His Honour Judge Ader ruled that the item was a bladed article which fitted into a pocket, with a blade that folded simply into and out of the handle but could not be fixed. He held that as a matter of common sense it fell within the definition of a folding pocketknife and, having a blade of less than three inches, was excluded from the prohibition by section 139(3) of the 1988 Act. That subsection provides that section 139 applies to a folding pocketknife if the cutting edge of its blade exceeds three inches. The prosecution gave the requisite assurance under section 58(8) of the 2003 Act and leave was granted by the judge.

On appeal the Crown contended that on its plain meaning a cut-throat razor was not a knife and therefore not a pocketknife. The judge had erred in determining that the razor was a pocketknife and his approach was contrary to the literal or plain meaning approach to statutory interpretation. Mr Mandel invited the court to apply a mischief approach. Treating a razor as a pocketknife would permit someone to carry a cut-throat razor in a public place without having to justify possession, which Parliament could not have intended. He argued that the item was not only a bladed article but was potentially lethal in the wrong hands. The Court of Appeal had seen the article in question, which was described as a small razor on an extended metal shaft sharpened to the degree necessary for use as a razor, which folded into a plastic handle and could be kept open by pressing the thumb on a metal flange. It could be used to inflict serious cutting injuries.

Miss Smart submitted that the starting point should be that any doubt as to the meaning of a provision imposing criminal liability should be resolved in favour of the accused. She referred to the Law Commission Report on the Interpretation of Statutes of June 1999, particularly paragraph 34 referring to the presumption of Parliamentary intent in Wright v Ford Motor Company [1967] 1 QB 230. She submitted that the purpose of section 139 was to prevent the carrying of fixed blade articles in public places. To fall within the statutory exemption for a folding pocketknife, an article must have three characteristics: first, the cutting edge must not exceed three inches; second, the article must not be capable of being locked in place, as that would create a fixed blade article; third, the blade must be immediately foldable by simple pressure to one side without any other process such as pressing a button. The article in question had all these characteristics and therefore fell within the exemption.

The court considered three authorities: Deegan [1998] 2 Cr App R 121, Harris v Director of Public Prosecutions and Fehmi v Director of Public Prosecutions [1993] 1 WLR 82, and Sharma v Director of Public Prosecutions [2018] EWHC 3330 (Admin). Lord Justice Simon began with preliminary observations. First, he accepted that a penal statute is to be construed strictly in favour of those who may be prosecuted under it, citing Lord Simonds in London and North Eastern Railway Company v Berriman [1946] AC 278 that a man is not to be put in peril upon an ambiguity. Second, in two of the three cases referred to the court had the advantage of seeing the article in question, as in the present case, enabling the Court of Appeal to form a view as to the nature of the blade. Third, in Harris and Fehmi the issue was whether a folding knife had to be readily and immediately foldable at all times or whether it was sufficient that it could be folded by pressing a button. The Divisional Court concluded it was the former. McCowan LJ held that to be a folding pocketknife the knife had to be readily and immediately foldable at all times simply by the folding process.

Fourth, in Deegan the appellant had been found in possession of a pocketknife capable of being locked in an open position and also of being folded once the mechanism had been operated to unlock the blade. The blade did not exceed three inches. The judge ruled it was a bladed article and not a folding pocketknife. The Court of Appeal considered ministerial statements in Parliamentary debates in light of Pepper (Inspector of Taxes) v Hart [1993] AC 593 but concluded they were not sufficiently clear to throw light on how section 139 should be interpreted. The Divisional Court case of Harris and Fehmi was correctly decided. Fifth, Sharma concerned a different type of article. The Divisional Court held that what is meant by a folding pocketknife turns on whether the blade was immediately foldable at all times simply by applying pressure to the blade.

Lord Justice Simon observed that section 139(1) defines the offence by reference to possession of an article in a public place. Subsection 139(2) provides that an article to which subsection (1) applies is one which has a blade or is sharply pointed unless it is a folding pocketknife. Subsection (3) qualifies the exception, so that it is not to be regarded as a folding pocketknife if the blade exceeds three inches. The cases referred to were cases where the article in question was argued to be a pocketknife within the exception as qualified by subsection (3), and in each case it was common ground that the article fell within the definition of pocketknife.

The issue in the present case, however, was whether the article could properly be regarded as a pocketknife. The court held that it plainly could not. A pocketknife was not an apt description of a cut-throat razor. The items had distinct characteristics as reflected both in their descriptive names and in their functions. A razor was an article of sufficient sharpness to be used to shave. That would not normally be done by a pocketknife. The court was satisfied that the ruling was wrong in law and made an order under section 61(4) of the 2003 Act for proceedings to be resumed in respect of count 3.

In short, a folding cut-throat razor is not a folding pocketknife within the meaning of section 139 of the Criminal Justice Act 1988 and therefore is not exempt from the prohibition on possessing bladed articles in a public place.

Harris v DPP and Fehmi v DPP [1993] 1 WLR 82
Sharma v Director of Public Prosecutions [2018] EWHC 3330 (Admin)
Wright v Ford Motor Company [1967] 1 QB 230
North Eastern Railway Company v Berriman [1946] AC 278
Pepper v Hart [1993] AC 593, [1992] 3 WLR 1032, [1993] 1 All ER 42, [1993] ICR 291
Deegan [1998] EWCA Crim J0204-3, [1998] 2 CrAppR 121