Neutral Citation Number: [2011] EWCA Crim 985
Case No: 201005999 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 5 April 2011
 
B e f o r e:

LORD JUSTICE RICHARDS 

MR JUSTICE RODERICK EVANS 
 
RECORDER OF CARDIFF ‑ HIS HONOUR JUDGE NICHOLAS COOKE QC
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

SARDAR SUNDAS 

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Mr R Thukral appeared on behalf of the Appellant

Mr R Meikle appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE RICHARDS:  This is an appeal against conviction on a count of having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953.  The appellant was convicted of that offence by a majority of 11 to 1 on 8 October 2010 following a trial at Isleworth Crown Court presided over by Mr Recorder Radcliffe.  She was subsequently given a conditional discharge for two years.  
2.	The present appeal is brought by leave granted by Dobbs J.
3.	The circumstances of the alleged offence were that an altercation arose between the appellant and a Ms McCardle at the car park of a shopping centre in Uxbridge.  The appellant had parked her car.  Ms McCardle, who was trying to park in an adjacent bay, criticised her parking.  Ms McCardle's evidence was that the appellant overreacted and lost her temper, an argument developed, obscenities were used and the appellant took what was described as a diminutive baseball bat from her car and said to Ms McCardle, "Come on then".  We are told that the baseball bat was a souvenir bat about the size of a police truncheon.  
4.	In her own evidence the appellant accepted that an altercation had taken place but gave a materially different account of the incident.  She said that she was upset by Ms McCardle's use of racist obscenities and that as she was walking to the back of her car Ms McCardle said to her, "Go back to your country", and threatened to beat her up.  The applicant, on her account, feared for herself and her unborn child.  She got out the bat on the spur of the moment without really thinking and held it by her side.  
5.	We should mention that there was a separate count of common assault in relation to the appellant striking a police officer on the hand with her wing mirror when she drove off, but the appellant was acquitted on that count and we think it unnecessary to say anything further about it.
6.	The focus of the appeal is the judge's directions to the jury in relation to the ingredients of the offence of having an offensive weapon.  Section 1 of the 1953 Act provides in sub‑section (1): 
i.	"Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence ..." 
7.	By sub‑section (4) "offensive weapon" means "any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person". 
8.	Having given conventional directions on the burden and standard of proof, the Recorder turned to the indictment and referred to the elements of the offence.  He said that there was no dispute as to the first two elements: that the appellant took the baseball into her hand, and did so in a public place.  As to the third element, he said that there was no evidence that the baseball bat was made or adapted for causing injury to the person, so the jury could dismiss that aspect from their minds completely. He went on to say, as it is recorded in the transcript: 
i.	"The crucial question is what her intention at the time she lifted up that bat to cause injury to Ms McArdle if the need arose." 
9.	That is how the transcript reads.  It is plainly inaccurate.  The Recorder may well have said, and evidently meant, that the crucial question was whether the appellant's intention was to cause injury at that time.  
10.	After the passage we have quoted, the Recorder explained the kinds of things the jury should consider when considering the question of intent, and correctly directed the jury that intent to cause injury would not be proved by an intention to frighten Ms McCardle or to make Ms McCardle think that the appellant might use the item.
11.	He then proceeded to draw the jury's attention to the words "without lawful authority or reasonable excuse", which, as he observed, appeared at the start of the particulars in the indictment and were words he had missed out when going through the three elements he had dealt with so far.  He continued in these terms: 
i.	"Now before considering whether she had the intent alleged you will ask whether she had a reasonable excuse for her taking the bat into her hand.  Remember, the question is not whether she had a reasonable excuse for carrying it in her car for the previous two months.  So the vital time you are concerned with is when she actually reaches into the car and takes the bat from the car.  So you may think forgetfulness that she had the bat in the boot for two months is not relevant to the question of whether she had a reasonable excuse at the time she picked it up from the car ...
ii.	On the element of reasonable excuse ‑‑ and I stress only on that element ‑‑ the burden of proof passes to the defendant to show on a balance of probabilities that she had a reasonable excuse.  If you think that she did have a reasonable excuse, on the balance of probabilities, you will not find that she lacked that reasonable excuse.  If, on the other hand, you are satisfied that she probably did not have a reasonable excuse for her possession of that bat, then you will find that she did not have a reasonable excuse and that that defence does not avail her.  
iii.	Now possession of the bat as a teaching tool in [Tae Kwon Do] may be a reasonable excuse for carrying the bat in the car, but at the moment she picks it out of the boot such a reasonable excuse cannot apply can it because the nature of the use changes from a teaching tool to something else does it not particularly because it is not suggested that she was giving Miss McArdle a lesson in [Tae Kwon Do]." 
12.	That is all that the Recorder had to say about the relevant count in the indictment.  He went on to consider count 2 and other matters.
13.	The submission advanced by Mr Thukral for the appellant is a simple one.  It is that the Recorder erred in failing to direct the jury that it was only if they found that the appellant had an intention to cause injury at the material time that the issue of reasonable excuse arose.  On the way he left the case for the jury, it was open to them to convict on the basis that they found no reasonable excuse for the appellant taking the bat into her hand, irrespective of any finding of intent on her part.  That, it is submitted, was a material misdirection which rendered the conviction unsafe.
14.	For the Crown, Mr Meikle submits that the conviction is not unsafe.  He says that the Recorder correctly directed the jury that it was necessary for the prosecution to prove that the appellant had an intention to cause injury to the person, and it must have been clear to the jury that before they could convict the appellant they had to be satisfied so as to be sure that the appellant had such an intention.  Only if they were so satisfied would they have to turn to consider any defence of reasonable excuse.  
15.	Mr Meikle submits that, in any event, the question of reasonable excuse was not really argued and was otiose to the case.  He says that if the prosecution had proved an intention to cause injury, it is difficult to see in what circumstances the defence of reasonable excuse could be satisfied, save perhaps in a case of extreme self‑defence.  When one looks in the round at what the jury had to decide, the fact is that they must have been sure in reaching their verdict that the appellant had the requisite intent.
16.	It seems to us that Mr Thukral plainly has the better of the argument.  The problem in this case is that the Recorder directed the jury in terms that before considering whether the appellant had the intent alleged they should ask themselves whether she had a reasonable excuse for taking the bat into her hand, and that it was for the appellant to prove on the balance of probabilities that she had a reasonable excuse.  He ended his directions on the ingredients of the offence with his discussion of reasonable excuse and without spelling out at any point that even if the appellant lacked a reasonable excuse she could not be convicted unless the jury were sure that in taking the bat into hand she intended to use it to cause injury.  
17.	In our judgment, there is a very real risk that the jury may have been led into thinking that a finding that the appellant had failed to prove reasonable excuse was determinative against her.  It is true that a careful analysis of the particulars of the offence, taken together with the directions given by the Recorder, would have made it sufficiently clear that a finding of intent was also required, but there can be no assurance that the jury engaged in an analysis of that kind rather than taking at face value the Recorder's unqualified direction to consider the question of reasonable excuse first.  
18.	Nor are we persuaded that the jury will in practice have left the question of reasonable excuse altogether on one side or should have left it one side.  It seems to us that the matter was in principle raised by the appellant's account of what happened.  She was suggesting in effect that she took the bat in hand in self‑defence.  
19.	In any event, we are sufficiently troubled by the terms of the summing‑up that we feel unable to conclude that this conviction was safe.  
20.	Accordingly, we allow the appeal and quash the conviction.