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Court of Appeal in Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Northern Ireland Police Service v McClure [2007] NICA 31 (6 September 2007) URL: http://www.bailii.org/nie/cases/NICA/2007/31.html Cite as: [2007] NICA 31 |
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Ref: HIGF5924
HIGGINS LJ
[1] This is an appeal by way of case stated from a decision of Mrs B Kelly RM sitting at Belfast Magistrates' Court whereby the appellant, Mark McClure, was convicted of the offence of possession of offensive weapons in a public place contrary to article 22 (1) of the Public Order (Northern Ireland) Order 1987. [2] The respected magistrate found that three police officers were tasked to 6 Dundela Court, Belfast at 12.55am on 6 February 2005. On their arrival at that address the appellant was observed through a glass panel in the front door carrying a knife in each hand. He was requested to put the knives down. He opened the front door and gestured towards the officers with the knives. He was warned that CS gas would be used. He then stepped out of the house towards the police officers and said 'come on ahead'. CS gas was discharged and the appellant retreated into the house where he was detained and two 8 inch knives recovered. He was charged with four offences. He pleaded guilty to two other and separate offences and not guilty to two offences of possessing an offensive weapon in a public place, each representing one of the knives he had in his possession after he emerged from the front door. He pleaded not guilty at trial and did not give evidence. [3] No evidence was led by the prosecution as to the nature of the area outside the front door of 6 Dundela Court onto which the appellant emerged after the arrival of the police officers. However, during the course of the proceedings, counsel on behalf of the appellant produced to the court an agreed set of photographs showing the area outside the front door of number 6 Dundela Court. It was submitted on behalf of the appellant that this area was not a public place. The Resident Magistrate was satisfied that the area was a public place and convicted the appellant. The Resident Magistrate was asked to state a case for the opinion of this court. The question posed was whether the magistrate was wrong in law to determine that the area outside 6 Dundela Court, Belfast was a public place for the purposes of article 22 (1) of the 1987 Order. [4] Article 22(1) of the Public Order (NI) Order 1987 provides –"A person who, without lawful authority or reasonable excuse (proof of which lies on him), has with him in any public place any offensive weapon shall be guilty of an offence."
For the purposes of the statute, public place is defined in Article 2 (2) of the Order as –
[5] In paragraph 5 of the case stated the Resident Magistrate described the area depicted in the photographs and set out her conclusions relating to it. She stated -"any street, road or highway and any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission."
"They depicted a front door in a block of houses with a paved area immediately outside the said door. Every so often a permanent bollard had been erected between this paved area and the pavement bounding the main road. These bollards appeared to continue across the front of the other properties in the block. Aside from this there was nothing by way of notice or otherwise to suggest that members of the public could not walk on the inside of the line of bollards. There was nothing between the bollards to prevent access. Defence (sic) argued that the area outside the front door was a private area and not an area to which the public had access and, accordingly, the prosecution had failed to prove a necessary ingredient of the offence. On the face of the photographs I was satisfied that there was nothing to prevent a member of the public walking along the inside of the line of bollards and in the absence of evidence from the appellant or anyone else on his behalf I was satisfied that the area in question was a public area and so convicted".
[6] One of the photographs was produced to this court. It shows the footpath in the foreground and appears to have been taken from the roadway. Beyond the footpath is a paved area leading to the entrance to number 6, as well as another dwelling to the right. There is a fine light coloured line dividing the footpath from the paved area. On the paved area in front of the house are about eight flower pots containing flowers. Four of the flower pots are along the wall of the house and the others a short distance to the right. Together they line the approach to the front door. At the front of the paved area is a green planter to the left of which is a concrete bollard. There is also a tree surrounded by a protective railing of the type sometimes used by public authorities. On the left gable wall of number 6 are two panels which appear to be access points for services. To the right of the front door are two 'wheelie bins'. [7] It was submitted by Mr O'Donoghue QC, who with Mr O'Connor appeared on behalf of the appellant, that there was no or insufficient evidence before the magistrate to support the conclusions that the area onto which the appellant emerged from his front door was a public place. The area was not a street nor was there any evidence of public use either of right or through licence. The magistrate in effect decided, from the photograph that, as there was nothing to prevent a member of the public walking along the inside of the bollards, this was a public place for the purposes of the 1987 Order. The fact the appellant or anyone else on his behalf gave no evidence was irrelevant and of no assistance to the prosecution. Mr O'Donoghue referred to a number of authorities from different courts in England and Wales and reminded the court of the distinction between the relevant legislation in each jurisdiction. [8] Mr Valentine who appeared on behalf of the respondent submitted that the magistrate had found that the appellant was outside 6 Dundela Court and therefore in Dundela Court, which was prima facie a public place. It was an open area that gave access to more than one property and in the absence of evidence of private ownership it was open to the magistrate, looking at the photographs, to infer that it was a public place. [9] The definition of public place in Article 2(2) has two limbs. The first comprises a street, road or highway, and the second a place to which the public has access in certain circumstances. The corresponding offence in England and Wales is found in Section 139 of the Criminal Justice Act 1988 in which the nature of the offence is the same, that is, possession of an offensive weapon in a public place. However the definition of a 'public place' is different. Section 139(7) defines a 'public place', inter alia, to include 'any place to which at the material time the public have or are permitted access, whether on pavement or otherwise.' Thus in England and Wales the fact of permitted access is sufficient to deem a place as a public place. Therefore the decisions in England and Wales to which counsel referred are, on their specific facts, of limited assistance. An area may be described by its appearance as a public area or a private area. A street thoroughfare or boulevard may be examples of a public area. A garden or enclosed area may be described as a private area. In the absence of specific evidence as to which, it may be difficult to discern the category to which a particular area belongs. [10] The magistrate is silent as to which limb of Article 2(2) is applicable to this case. There is no evidence or finding of access on foot of payment, nor of access as of right or by implied permission. Thus to qualify as a public place the area in question outside 6 Dundela Court must be a street, road or highway or part thereof. There is no finding that it is part of a street, road or highway. The area is beyond the pavement and the photograph provides no details that would suggest this area could inevitably be classified, inferentially or otherwise, as a street, road or highway or part thereof. In fact the paved area, distinguished from the pavement, may suggest the contrary. The fact that there was nothing to prevent a member of the public walking along the inside of the line of bollards does not of itself provide evidence that the area beyond the bollards was a public place. Merely because public access is not physically obstructed by some fence, wall or other obstruction does not deprive an area of its private nature, if that it be. [11] It was unsatisfactory of the prosecution to fail to lead evidence that this area was a public place. The only evidence of this was contained in the photographs. This court is in as good a position as the magistrate to judge what they proved. The definition of 'public place' in Article 2(2) is clear. There was no evidence of the second limb and the evidence on the first limb was at best equivocal. The onus is on the prosecution to prove the case beyond a reasonable doubt. I do not consider there was sufficient evidence before the magistrate to conclude to that standard that the area outside 6 Dundela Court was a public place. I would answer the question posed in the case stated 'Yes' and allow the appeal. I would remit the case to the Magistrate's Court for determination in accordance with this judgment.
