Do sellers of police uniform need to check whether their customers have an illicit purpose?

The following article is written for Police Professional by the editors of Criminal Law Week. Criminal Law Week is used by criminal justice professionals – including police officers, the CPS, judges and lawyers – to stay up to date with changes in criminal law. Published 46 times a year, each issue summarises important cases and legislation, keeping you on top of the latest developments regarding offences, police powers, the rules of procedure and evidence, and more. Incisive commentary is also provided by James Richardson Q.C., the editor of Archbold. Our online service gives you access to all Criminal Law Week issues, from 1997 to today. These are pulled together in a fully-searchable database, complemented by annotated key criminal legislation. For more information about Criminal Law Week, or to sign up for a free trial of our online service, please visit www.criminal-law.co.uk or call 01483 414 599.

Do sellers of police uniform need to check whether their customers have an illicit purpose?

No, said the divisional court in Cooke v Director of Public Prosecutions (CLW/16/3/4).

The defendant, Ronald Cooke, was a trader who traded under the name Dorset Militaria and British Bobby from premises in Dorset. On September 19, 2013, search warrants were executed by police at his home and at his business premises. A considerable quantity of police caps, helmets, badges and bags were seized. He was charged with eight offences of possession of articles of police uniform, contrary to section 90(3) of the Police Act 1996. He was subsequently convicted of all those offences by Bournemouth Magistrates’ Court. He then appealed to the Crown Court which dismissed his appeal. Finally, he appealed by way of case stated against the decision of the Crown Court.

The facts were not in dispute. The seized items were ‘articles of police uniform’, as defined by section 90(4): “Any article of uniform or any distinctive badge or mark… of identification usually issued to members of police forces… or anything having the appearance of such an article, badge, mark…” They were part of the defendant’s stock in trade. He bought from a variety of sellers and sold to members of the public, mostly online. He carried out no checks on the identity of those who bought from him, or as to their purpose in doing so. The defendant relied on the statutory defence (which required him to show that he obtained possession of the articles lawfully and had possession of them for a lawful purpose (as provided by section 90(3) itself)). He accepted that the legal burden of proof lay upon him to establish that he had obtained possession of the articles lawfully and had possession of them for a lawful purpose, and that he had to do so on the balance of probabilities.

The Crown Court held: “It is inescapable that the [defendant] has obtained these articles to sell on to any member of the public without restriction, although the unauthorised wearing of them is potentially criminal under section 90(2). Although the [defendant] may wish and hope to sell these articles only to honest and sensible people who would neither misuse them nor run the risk of confusing members of the public, the nature of his business is such that he could not control or monitor the purchases from his business to eliminate or minimise the risk that purchasers might misuse the uniforms to deceive and thereby commit offences under subsections (1) and (2) of section 90 or for other improper purposes. Moreover, the [defendant] has not established that he takes steps to reduce the risk by checking and warning his customers. Accordingly, the [defendant] has not established that at the relevant time he had obtained possession of these articles for a lawful purpose.”

On his further appeal, the divisional court held that a seller of articles of police uniform in the ordinary course of business (such as a theatrical costumier, a fancy dress shop owner, or a retailer of military and police memorabilia) will be able to show he had possession of the articles for a lawful purpose if he pro