Roberts, R v

For Criminal Justice Act 1988, section 139, whether a place is public depends on whether the public have or are permitted access to it. A private front garden does not become a public place merely because its proximity to the street would allow a person there to use a bladed article against a passer-by. The statutory definition is concerned with access, not with the potential reach of harm from private land.

The appellant was convicted at Harrow Crown Court of affray and possessing a bladed article in a public place. The knife was found after his arrest, having been in his trouser pocket while he was in the front garden of his home.

The trial judge held that the garden was a public place for count 2 because it was close enough to the street for a person there to harm a passer-by. The appellant appealed against conviction. The central issue was whether that private front garden fell within section 139(7) of the Criminal Justice Act 1988, and whether the erroneous ruling affected the separate affray conviction.

1. Appeal allowed in part. The conviction for possessing a bladed article in a public place was quashed. The conviction for affray remained, and the concurrent community punishment order was therefore unaffected.

2. Per Lord Justice Mantell, delivering the court’s judgment, section 139(7) of the Criminal Justice Act 1988 defines a public place by public access or permission to access. The appellant’s front garden was not a place to which the public were permitted access. That conclusion was consistent with R v Edwards and Roberts [1978] 67 Crim App Rep 228, which recognised that a postman or milkman enters under an implied licence as a lawful visitor rather than as a member of the public.

3. The trial judge’s wider construction was wrong. A private garden cannot become public merely because a low wall would enable its occupier to reach the street with a weapon. That approach would make the character of land turn on the height of a boundary, and could also render part of a house public where an occupier could lean from a window. The judge should therefore have upheld the submission that there was no case to answer on count 2.

4. The misdirection did not render the affray conviction unsafe. The judge dealt with each count separately and expressly directed the jury to assess the evidence on each count separately. There was no realistic possibility that the jury would confuse the private-property basis of the appellant’s reasonable-force defence to affray with the erroneous direction on count 2.

• Court of Appeal (Criminal Division): In [2003] EWCA Crim 2753, allowed the appeal against the conviction for possessing a bladed article in a public place, but upheld the affray conviction.
• Harrow Crown Court: Convicted the appellant on 17 June 2002 of affray and possessing a bladed article in a public place, and imposed concurrent community punishment orders of 40 hours on 15 July 2002.