Lewis Szewczyk [2019] EWCA Crim 1811

R v Lewis Szewczyk [2019] EWCA Crim 1811 concerned an appeal against conviction for two offences of having an article with a blade or point contrary to section 139(1) of the Criminal Justice Act 1988. The Court of Appeal (Lord Justice Irwin, Mrs Justice Andrews and His Honour Judge Aubrey QC) dismissed the appeal.

Mr Szewczyk had been convicted following trial before His Honour Judge Burgess QC at the Crown Court at Reading on 29 May 2019 and sentenced to twelve months’ imprisonment concurrent on each count. A suspended sentence of two years imposed in June 2017 at Newport Crown Court was activated consecutively.

The facts were not in dispute. On 4 August 2018 two police officers stopped Mr Szewczyk and found him in possession of a black-handled kitchen knife wrapped in a cloth in his waistband and a silver-handled kitchen knife in a carrier bag. He immediately told the officers that he had been attacked by another man and had disarmed him. Two members of the public gave evidence at trial that they had witnessed an altercation between Mr Szewczyk and another man during which Mr Szewczyk was holding a knife and had been acting threateningly to various degrees, though neither had seen the beginning of the altercation. Mr Szewczyk gave evidence that the other man had attacked him with the knives, that he had disarmed him, and that they spoke for ten to fifteen minutes thereafter while he was still holding one knife. He said he had intended to dispose of the knives safely and that when police arrived he dropped them and explained what had happened.

The appeal turned on a point of law. Once it was established that Mr Szewczyk possessed the knives, did the Crown bear a continuing burden of proving that he had them with any particular intent, or did he bear the burden on the balance of probabilities of showing he had them for the innocent purpose he claimed, namely removing them from the other man and disposing of them safely?

Mr Hodgetts for the appellant relied on the Prevention of Crime Act 1953, which makes it an offence for any person without lawful authority or reasonable excuse (the proof of which lies on the accused) to have with him in any public place any offensive weapon. An offensive weapon is defined as any article made or adapted for use for causing injury to the person or intended by the person having it for such use. In Ohlson v Hylton [1975] 1 WLR 724 the Divisional Court construed the 1953 Act as concerned with the carrying of a weapon with intent to use it offensively before any occasion for actual use had arisen, such that no offence was committed where an assailant seized a weapon for instant use on his victim. Lord Widgery CJ held that the section was not concerned with the actual use of a weapon but with the carrying of a weapon with intent to use it if occasion arose. That decision followed the earlier Court of Criminal Appeal judgment in R v Jura (1954) 38 Cr App R 53. Critically, as Mr Hodgetts conceded, those authorities concerned articles not offensive per se but which became offensive only when carried with the requisite intent. Under the 1953 Act, mere possession of such articles before the formation of intent rendered them offensive was no offence at all.

Mr Hodgetts submitted that consistency required the same analysis under the 1988 Act. He argued that the phrase “has with him”, appearing in both statutes, required proof of carriage prior to the instant incident and that if Mr Szewczyk had acquired the knives only as a result of the instant occasion he could not have had them with him within the meaning of the Act, even if he had possessed them for some short time thereafter.

The Court of Appeal rejected that submission. Lord Justice Irwin held that the distinction between the two statutes was clear. It did not lie in the test of possession but in the description or test of the relevant article and in the formulation of the two different statutes. Under the 1953 Act, where the article was not offensive by its very nature, the actus reus required proof of the accused’s intention at the time, such that the actus reus and mens rea overlapped. In contrast, the 1988 Act required no proof that the bladed article was carried offensively or for any other particular reason. The definition of a bladed article under section 139 was objective. The mischief aimed at was the possession in public of a bladed article, not the carrying of an article rendered offensive by intent.

The Court observed that there was no authority under the 1953 Act concerning offensive weapons per se and that a different reading from the ratio of Jura and Ohlson v Hylton might arise were a charge laid under that Act in relation to such a weapon, though that question remained open. The Court did, however, express the view that it would seem remarkable if the 1953 Act were not intended to criminalise the carrying of offensive weapons per se irrespective of whether any assault arose, as otherwise absurd results would follow.

In any event, the Court held that on the facts of this case the problem posited by the appellant did not arise. The prosecution case was that some little time after the moment when on his own account Mr Szewczyk divested the other man of the weapons, he was still in possession of them. This was not instantaneous possession such as might convert innocent objects to offensive weapons under the 1953 Act jurisprudence. The facts could not found the argument advanced.

The Court also refused to certify a question of general public importance on the basis that the facts of the case precluded it. In short, once the actus reus of possessing bladed articles in public was established under section 139 of the Criminal Justice Act 1988, the burden fell on the accused to prove good reason or lawful authority irrespective of how briefly or for what purpose he had come into possession.

Ohlson v Hylton [1975] 1 WLR 724