McAuley, R. v

A judge must decide whether the evidence is legally capable of establishing a good reason under section 139(4) of the Criminal Justice Act 1988, but should be slow to withdraw that issue from the jury. The broad statutory language ordinarily leaves the factual assessment to the tribunal of fact.

Possession of a bladed article for protection may amount to a good reason where the defendant proves, on the balance of probabilities, fear of an imminent attack. Imminence is not a rigid statutory requirement. The jury must assess how soon, likely and serious the anticipated attack was. A judge should normally hear the evidence before ruling that the defence is unavailable.

The appellant pleaded guilty at Inner London Crown Court to possessing an article with a blade or point in a public place, contrary to section 139(1) of the Criminal Justice Act 1988. He had initially relied on the statutory defence that he carried the knife because he feared a further attack by a man who had seriously assaulted and recently threatened him.

Before evidence was called, the judge ruled that the facts in the defence statement could not amount in law to a good reason under section 139(4). The appellant then changed his plea and received a 26-week suspended sentence with a 12-month supervision requirement.

On appeal, the issue was whether the assumed facts were capable of supporting the statutory defence and, if so, whether the conviction was unsafe.

1. Appeal allowed. The judge's ruling was wrong. It deprived the appellant of the opportunity to establish the statutory defence, and the resulting guilty plea made the conviction unsafe. The conviction was quashed.
2. Under section 139(4) of the Criminal Justice Act 1988, the judge performs a threshold function. Following Bown [2003] EWCA Crim 1989, the judge decides whether the evidence could in law amount to a good reason. If it could, the jury decides whether it does amount to a good reason on the facts.
3. The court held that protective possession can be capable of constituting a good reason where the defendant proves fear of an imminent attack on the balance of probabilities. The word imminent, derived from the authorities, does not add a fixed condition to the statute. The jury must decide how imminent, soon, likely and serious the anticipated attack must be.
4. Evans v Hughes (1972) 56 Cr.App.R 813 showed that an earlier attack and continuing fear may, even after several days, be capable of supporting the analogous reasonable-excuse defence. On the assumed facts, including the serious earlier assault and threat five days before the arrest, a properly directed jury could find good reason. The defence evidence might be thin, but it was not legally incapable of succeeding.
5. The court added that a judge should normally hear the evidence before deciding whether the statutory defence is legally capable of being left to the jury. Documents may not disclose the full or accurate factual position.
6. A retrial was refused. The appellant had effectively completed 11 of the 12 months of both the supervision requirement and the suspension period.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 2130, allowed the appeal, quashed the conviction as unsafe and refused a retrial.
• Inner London Crown Court: The appellant changed his plea to guilty on 24 October 2008 after the judge ruled that the proposed section 139(4) defence was unavailable in law. On 14 November 2008 he received 26 weeks' imprisonment, suspended for 12 months, with a 12-month supervision requirement.