Sharma v Director of Public Prosecutions [2018] EWHC 3330 (Admin)
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Sharma v Director of Public Prosecutions [2018] EWHC 3330 (Admin) was an appeal by way of case stated to the Divisional Court concerning whether a card-shaped knife with a locking mechanism was a folding pocketknife within section 139 of the Criminal Justice Act 1988.
Mr Sharma had been convicted in the magistrates’ court under section 139(1) of the Criminal Justice Act 1988 of possessing a bladed article in a public place, namely a knife with a blade less than three inches long. His appeal to Aylesbury Crown Court was dismissed by Mr Andrew Marshall sitting as Recorder with justices. The Recorder granted leave to state a case. The question posed was whether the Crown Court had been correct to conclude that the knife was not a folding pocketknife within the meaning of section 139(2) and (3) of the Act simply because one part of its locking mechanism operated by a process of unfolding.
Section 139(1) of the 1988 Act creates an offence of having a bladed article in a public place. Section 139(2) provides that the section applies to any article which has a blade or is sharply pointed except a folding pocketknife, and subsection (3) provides that it applies to a folding pocketknife if the cutting edge of the blade exceeds three inches.
The knife in question had the following characteristics. It was similar in size and shape to a credit card and could be carried in a wallet. When the blade, which was two and a half inches long, was folded away, it lay diagonally across the card with an indentation to accommodate it. The blade was unfolded by pivoting it one hundred and eighty degrees up and over to the horizontal plane, approximately doubling the length of the item. When unfolded, the blade pointed out from the corner of the card. Two triangular parts of the card on each side of the centre could then be folded inwards to meet and cover the base, forming a handle. Tiny plastic studs or poppers could be pressed into matching holes to snap together and secure the blade in position. Once the handle was secured, the blade could not be pushed back without the user unsnapping and unfolding the sides and rotating the blade back one hundred and eighty degrees.
The court applied the test established in Harris v Director of Public Prosecutions [1993] 1 WLR 82, approved in R v Desmond Garcia Deegan [1998] 2 Cr App R 121. Lord Justice Leggatt, with whom Mrs Justice Elisabeth Laing agreed, set out the relevant passages from those authorities. In Harris, McCowan LJ held that to be a folding pocketknife, the knife must be readily and immediately foldable at all times simply by the folding process, not requiring the pressing of a button or other mechanism. In Deegan, the Court of Appeal Criminal Division held that folding in its ordinary meaning means foldable at all times without the intervention of some further process.
Ms Lykourgou, appearing for the appellant, accepted that the law was correctly stated in those cases but submitted that the requirement that the knife should be immediately foldable referred to the article as a whole, not solely to the blade. She argued that the knife as a whole satisfied the description because the flaps could be folded away and then the blade folded back. She further submitted that the pressure required to unsnap the handle was no different from that required to fold away the blade of an ordinary Swiss Army knife, which was accepted as a folding pocketknife. She also emphasised that the knife was weak from front to back when in its locked position, making it similar to an ordinary pocketknife which could be closed by applying pressure.
Lord Justice Leggatt rejected those submissions. He held that the reference in Harris and Deegan to the knife being readily and immediately foldable referred to the blade itself, which was the relevant part for the offence of carrying a bladed article. Giving a purposive interpretation to section 139, the requirement that the blade should be immediately foldable reflected the mischief at which the provision was aimed, because an article with a blade that could be secured so that it could not be immediately folded had greater potential to be used as a weapon. The blade in this case was not immediately foldable and therefore did not satisfy the established test.
Lord Justice Leggatt further held that there was an additional reason the knife failed the test. Before the sides forming the handle could be folded away, it was necessary to unsnap the small studs or poppers. Although this did not require great strength and was a simple mechanism, so too was the pressing of the button in Harris and Deegan. For that further reason the knife was not immediately foldable. His Lordship accepted that the knife might be less robustly secured and therefore less of a potential threat than a typical lock knife, but held that what was meant by a folding pocketknife could not reasonably depend on judgments about the strength or otherwise of the mechanism. The interpretation given in the case law was clear and straightforward and turned on whether the blade was immediately foldable at all times simply by applying pressure to it, which was not true of this knife.
In short, the Crown Court had correctly concluded that the card knife with its snapping locking mechanism was not a folding pocketknife within section 139(2) and (3) of the 1988 Act, and the appeal was dismissed.
Harris v DPP [1993] 1 WLR 82
Deegan [1998] EWCA Crim J0204-3, [1998] 2 CrAppR 121