Henderson, R. v

For an offence under section 139(1) of the Criminal Justice Act 1988, having a bladed article with a person is narrower than possession but wider than physically carrying it. The question is one of fact and degree. It requires consideration of propinquity, immediate availability, accessibility, any criminal enterprise, and the purpose of the statute.

A weapon in a vehicle is not necessarily with a person merely because the person controls the vehicle or has its keys. Where there is no close geographical, temporal or purposive link, and the weapon is neither immediately available nor readily accessible, the statutory requirement is not met.

The appellant was convicted at the Crown Court at Isleworth of having a lock knife with him in a public place, contrary to section 139(1) of the Criminal Justice Act 1988. The knife was found in a bag in the boot of his car, which was parked in a communal public car park. The appellant was arrested in a second-floor flat and said that he did not know the knife was in the car.

The trial judge rejected a submission of no case to answer, holding that the appellant could have been in close contact with the knife through its presence in his car. The appellant appealed against conviction, contending that he did not have the knife with him in a public place.

1. Appeal allowed. The conviction was unsafe and was quashed. The trial judge should have accepted the submission of no case to answer.

2. The phrase having a weapon with him denotes a concept narrower than possession, but wider than carrying. It requires a close physical link and a sufficient degree of immediate control. The assessment is one of fact and degree. Relevant matters include propinquity, immediate availability, accessibility, the context of any criminal enterprise, and the statutory purpose.

3. The court drew support from R v Kelt [1977] 1 WLR 1365 and applied the accessibility-focused approach in R v Pawlicki and R v Swindell [1992] 1 WLR 827. It distinguished the latter case because there was no evidence that the appellant had recently left, or was shortly to return to, the car; no link between the knife and his presence in the flat; and no criminal enterprise involving the knife. The facts were also unlike Smith v Vannet [1998] SCCR 410, where the weapons were readily available from a car only a few feet away.

4. Here, the appellant was in a private second-floor flat while the knife was in a car in a public car park. There was no close geographical, temporal or purposive link. The knife was neither immediately available nor readily accessible. Accordingly, the appellant did not in law have the knife with him.

• Court of Appeal (Criminal Division) — Allowed the appeal against conviction and quashed the conviction: [2016] EWCA Crim 965.
• Crown Court at Isleworth — On 1 December 2014, convicted the appellant of having an article with a blade contrary to section 139(1) of the Criminal Justice Act 1988.