Tsap, R v

Mere forgetfulness that an offensive weapon is in a person’s possession cannot by itself amount to a reasonable excuse under the Prevention of Crime Act 1953. Forgetfulness may nevertheless be relevant when coupled with other circumstances.

Where the defendant relies on circumstances beyond mere forgetfulness, the question of reasonable excuse will normally be for the jury. A judge may withdraw the defence only where the evidence could not properly support a finding of reasonable excuse.

The appellant was convicted at Kingston Crown Court of possessing an offensive weapon contrary to section 1(1) of the Prevention of Crime Act 1953, after changing his plea to guilty during trial. The change followed the trial judge’s ruling that there was no evidence on which the jury could find a reasonable excuse.

The item was a flick knife concealed as a cigarette lighter. The appellant’s account was that he had borrowed it without knowing its true nature, later discovered that it was a knife, returned it to his jacket pocket, and then forgot about it for several months. The central issue was whether that account raised a reasonable-excuse defence which had to be left to the jury.

1. Appeal allowed. The court held that the trial judge erred in ruling that there was no evidence capable of establishing reasonable excuse. The conviction was quashed. The Crown did not seek a retrial.
2. Mere forgetfulness of possession cannot itself provide a reasonable excuse for an offensive weapon. However, it may form part of a wider factual explanation. The question remains one of the circumstances of the particular case. The court followed the guidance in McCalla (1988) 87 Cr App R 372, Glidewell (unreported) 4 May 1999, and Ivey (unreported) 15 August 2000.
3. Where the defendant relies on matters going beyond mere forgetfulness, the issue will normally, and almost invariably, be for the jury. The court retained the possibility that a judge may properly withdraw such a defence where the particular evidence could not support a finding of reasonable excuse.
4. On the appellant’s account, his initial acquisition was innocent because he did not know the lighter contained a knife. His later discovery and subsequent failure to remove it did not reduce the case to one of mere forgetfulness. Although a jury finding of reasonable excuse might have been improbable, it would not have been improper. The jury, rather than the judge, had to assess the account.

• Court of Appeal (Criminal Division): Leave was granted, the appeal against conviction was allowed, and the conviction was quashed.
• Kingston Crown Court: The appellant was convicted after changing his plea to guilty following the judge’s proposed direction that there was no evidence capable of establishing reasonable excuse. He was sentenced to six months’ detention in a young offender institution.