Capusneac, R v

Possession of a knife does not, without more, establish its intentional use to threaten. Whether such an inference may be drawn depends on all the circumstances, including the manner in which the knife is carried and the defendant’s conduct.

Where an alleged omission in a summing-up concerns a live issue, counsel should raise it at or before the summing-up so that it can be corrected. An appeal is not an opportunity to identify academic deficiencies that were not matters of practical concern at trial. A conviction remains safe where the evidence of threatening conduct is abundant.

The appellant was convicted at Liverpool Crown Court, before HHJ Warnock and a jury, of threatening another with a bladed or pointed article contrary to Criminal Justice Act 1988, section 139 AA.

The prosecution alleged that, during a confrontation outside his home, the appellant armed himself with knives, advanced towards the complainants and threatened them. The appellant accepted possessing knives but denied threatening anyone. He said that he had acted after being assaulted in his home and had sought to frighten the male complainant away.

With leave of the single judge, he appealed on five grounds concerning the summing-up, self-defence, protection of property and the route to verdict. The central question was whether the judge’s directions rendered the conviction unsafe.

1. Appeal dismissed. The conviction was safe.
2. Possession of a knife, without more, does not necessarily permit an inference that it is being used intentionally to threaten. The permissibility of that inference depends on the circumstances. Carrying knives aggressively, one in each hand, while drunk and pursuing a grievance may support it.
3. The judge’s reference to the appellant carrying the knives and, by inference, using them to threaten was not understood as withdrawing the issue from the jury. In any event, there was abundant evidence that the knives were used threateningly. Both complainants gave direct accounts. The appellant admitted that he armed himself to frighten the male complainant, left the house with knives and moved towards the couple in the road.
4. The remaining complaints did not undermine safety. The judge had identified the immediate risk of serious harm as an element of the offence. If the defence wished to contest that issue or seek an additional route-to-verdict question, counsel should have raised it when the directions were disclosed and capable of correction.
5. The same applied to the alleged need for separate directions about carrying rather than using knives, the legal effect of an intention to frighten, and protection of property. Those matters had not been raised as live issues at trial, and the appellant had not given evidence that he was protecting property. The criminal process cannot work effectively if matters which should be raised at or before the summing-up are reserved for appeal.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2017] EWCA Crim 1498.
• Liverpool Crown Court: the appellant was convicted by HHJ Warnock and a jury of threatening a person with a bladed or pointed article contrary to section 139 AA of the Criminal Justice Act 1988.