When can forgetfulness be a reasonable excuse for possessing an offensive weapon?

This question was considered by the Court of Appeal in R v Tsap (CLW/09/02/3).

The appellant was searched by a doorman at the entrance to a nightclub, and in his inside right jacket pocket the doorman discovered what appeared to be a cigarette lighter, but which was in fact a flick-knife. The doorman contacted the police and when they spoke to the appellant at the scene and in interview he said he had forgotten that he had had the article with him.

He explained that about six months previously he had gone with friends to a different nightclub. When he went outside for a cigarette he had borrowed the lighter from someone. He did not realise at that time it was a knife. He just lit up his cigarette and put the lighter in his jacket pocket intending to give it back later, but in fact had not done so. Some time after getting home he found it in his pocket, took it out, discovered it was a knife, then put it back in his pocket and completely forgot about it. He had not worn that jacket between his discovery of the knife and the occasion when he was arrested.

He was charged with possession of an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953, and at his trial it was common ground that the knife was offensive per se and that he had been in possession of it. The sole issue was therefore whether the appellant had had a reasonable excuse for his possession of it. The judge ruled that, whilst he would not withdraw the defence of reasonable excuse from the jury, he would direct them that in the circumstances of this case there was no evidence upon which they could properly find that a reasonable excuse was made out.

As a consequence, the appellant changed his plea to guilty and was sentenced to six months’ detention. He appealed his conviction to the Court of Appeal.

The court said that mere forgetfulness that one has an article in one’s possession cannot of itself constitute a reasonable excuse for having an offensive weapon in a public place.

However, it went on to say that forgetfulness itself may be relevant as part of a wider set of circumstances relied on as providing a reasonable excuse. Everything depends on the particular circumstances, but where the matters relied on go beyond mere forgetfulness, it should be left to the jury to decide whether the defendant has a reasonable excuse, even where such a finding would be improbable.

Accordingly, the judge’s ruling had been unsound and the defendant’s conviction was quashed.