Cooke v Director of Public Prosecutions

Under section 90(3) of the Police Act 1996, lawful purpose requires a positive lawful purpose for possessing articles of police uniform. The concept is not confined to supplying uniforms to authorised police users. It may include theatrical performance, fancy dress, collection, display and commercial supply.

A commercial seller establishes the statutory defence where he proves that he neither knew nor had reason to believe that the buyer intended an illicit purpose. Section 90(3) does not impose a general duty to check or warn customers. Requirements of that kind would require detailed statutory regulation.

The appellant traded in police caps, helmets, badges and bags. He was convicted by Bournemouth Magistrates’ Court of offences under section 90(3) of the Police Act 1996. The Crown Court dismissed his appeal.

The Crown Court accepted that commercial supply could be a lawful purpose, but held that the appellant had not established the defence because he did not check or warn customers to reduce the risk of misuse. The appeal by case stated concerned whether section 90(3) imposed such a requirement on a commercial seller.

1. Appeal allowed. Section 90(3) requires a person relying on the statutory defence to prove a positive lawful purpose. It is insufficient merely to show the absence of an unlawful purpose. The court accepted the analogy with R v Riding [2009] EWCA Crim 892.
2. The requirement of lawful purpose is not narrowly confined to the manufacture, transport or provision of police uniforms to authorised users. Lawful purposes may include theatrical, film or television performance, fancy dress, museum display, private collection, retention by a former police officer, and supply to such end users.
3. Possession for the purpose of supplying articles to an end user known, or reasonably believed, to intend an unlawful use would itself be unlawful. The offence requires mens rea. A seller who proves that he neither knew nor had reason to believe that the buyer had an illicit purpose establishes the absence of the necessary mens rea.
4. Section 90(3) contains no requirement that a seller check purchasers or warn them about misuse. Imposing such obligations would raise practical questions about what checks or warnings were sufficient and would amount to detailed regulation requiring parliamentary action. The Crown Court therefore erred in treating the absence of checks and warnings as fatal to the defence.
5. On the Crown Court’s findings, the appellant had a commercial purpose and neither knew nor had reason to believe that his customers intended an illicit purpose. He had therefore established the statutory defence.

• Crown Court: dismissed the appellant’s appeal against his convictions on 5 December 2014.
• High Court (Administrative Court): allowed the appeal by case stated and held that section 90(3) did not require the appellant to check or warn purchasers.