Wang, R. v

Where the defence to possessing a bladed article in a public place depends on good reason or religious reasons, the trial judge must first decide whether the evidence is capable in law of establishing the defence. A directed conviction remains exceptional. It is permissible only where the evidence could not sensibly discharge the defendant’s burden.

A religious reason under section 139(5)(b) of the Criminal Justice Act 1988 must be the predominant, if not the sole, motivation for having the article in public on the particular occasion. Possession for convenience, coupled with a possible future opportunity for martial-arts practice, is insufficient.

The defendant was convicted at Chelmsford Crown Court of two offences under section 139(1) of the Criminal Justice Act 1988 after police found him at a railway station holding a sheathed curved sword; a further bladed knife was in his bag.

He accepted possession but said that he practised Shaolin martial arts and that the weapons were connected with his Buddhist faith. He was travelling to see an immigration solicitor and said that he had taken the weapons because there was no one at home to look after them and because he might practise in remote places. The judge ruled that this evidence disclosed no defence and directed convictions.

On his appeal against conviction, the central issue was whether the evidence was capable of establishing good reason under section 139(4), or possession for religious reasons under section 139(5)(b).

1. Appeal dismissed. Laws LJ, giving the court’s judgment, held that the trial judge was entitled to direct convictions because the defendant’s evidence was incapable in law of discharging the burden for either statutory defence.
2. There is a distinction between a prosecution issue and a defence on which the defendant bears an evidential burden. A directed conviction on a prosecution issue is exceptionally constrained. Where a statutory defence requires the defendant to establish a factual basis, the judge may determine whether the evidence is legally capable of doing so. Even then, judges should direct conviction only where it is plain beyond sensible argument that the material could not suffice.
3. For section 139(5)(b) of the Criminal Justice Act 1988, a reason that can properly be described as religious must be at least the predominant, if not the only, motivation for having the bladed article in public. It must also motivate possession on the particular occasion.
4. The evidence did not show a settled intention to practise on the day. Nor did it show that practice was required by the defendant’s religion. In any event, the stated reason that there was no one at home to look after the weapons was plainly not good reason for taking them into public. The evidence therefore lacked the required particularity to establish either defence.
5. Article 9 of the European Convention on Human Rights was assumed, without decision, potentially relevant. Any qualifying religious right was already accommodated by section 139(5)(b), so Strasbourg authority was unnecessary.

• Court of Appeal (Criminal Division): appeal against conviction dismissed: [2003] EWCA Crim 3228.
• Chelmsford Crown Court: the defendant was convicted on 28 August 2002 after the judge directed the jury to convict on two counts under section 139(1) of the Criminal Justice Act 1988. On 4 October 2002 he received a conditional discharge for 12 months.