MELS Seminars for Week 7: Precedent and Statutory Interpretation

We start with a few general questions which will test your knowledge and understanding of precedent. This will be followed by an exercise where you will be asked to prepare your arguments for the Court of Appeal based on a prosecution under the Knives Act and utilising several fictitious precedents. Questions 1. What does it mean to distinguish a case? 2. On what basis may the Court of Appeal depart from its own previous decisions?

3. Is the Supreme Court bound by its previous decisions? If not, on what

basis may it depart from them? 4. Imagine you are counsel in the Court of Appeal (Criminal Division) in the following case. Prepare to present an argument, as to why Denniss conviction should be upheld or overturned. You will be split into groups by your seminar tutor, so be prepared to argue on both sides of the debate. In order to prepare your argument you will need to: Consider each of the grounds for Dennis original conviction in light of the facts in the case Examine the relevant provisions of the Knives Act Consider the fictitious authorities before the Court and how persuasive they will be in the current case Undertake any other research you think may help your arguments, particularly in relation to appeal ground (i) R v Dennis (2008) Dennis owns a martial arts studio in central Birmingham which has a shop-front access to the street. He uses the window to display a large sign for the studio, which states: The Birmingham Dojo Learn the ancient Japanese arts of combat and self-defence here! Positioned around the sign are various weapons, mostly bokken (Japenese wooden training swords) and other martials arts training weapons made of wood or foam and plastic. But there were also a number of shuriken or Ninja stars four and five pointed, sharp, steel objects designed for throwing. There were no prices displayed on any of the items, though there was a small note in the window stating Training weapons available for purchase inside.

Some months ago Denniss friend Suzy called in asking if she could purchase the shuriken from Dennis for use in a demonstration event at a prestigious martial arts festival she was organising in a few weeks time. She explained that the shuriken were to be used in a carefully choreographed and somewhat stylised fight sequence between two highly experienced martial arts experts who were coming from Japan for the event, and would be the highlight of the festival. At the end of the sequence, it was intended that the shuriken would be auctioned off for charity. Dennis had not really intended to sell the shuriken, but, as it was for a good cause, he agreed to let Suzy have them. Dennis was convicted under s.1(1)(a) Knives Act 1997 on the following grounds: The shuriken were knives for the purposes of this Act. The display constituted an offer or exposure for sale under s.1(4) of the 1997 Act: R v Bentham and Steel applied. Following R v Austin, the conjunction of real and training weapons in the display, together with the use of the word combat was sufficient to create a presumption that the genuine weapons were also for sale and were self-evidently suitable for combat. Assume for the purposes of this exercise that there are no prescribed categories under ss.3(1)(a)(iii) and 3(2)(a)(iii).

(i) (ii)

Authorities before the Court R v Austin (2004) CA The accused in this case appealed against convictions under s.1(1)(a) of the 1997 Act. Austin owned a martial arts store in South London, selling suits, equipment and weapons. On the rear wall of the store a number of weapons were on display, including traditional longbows, staves and samurai swords. Austin claimed that these items formed a decorative display for show purposes only. Austin was convicted and appealed to the Court of Appeal. The Court of Appeal unanimously allowed his appeal. The only substantive opinion was delivered by Kukri LJ. Kukri LJ: Surprisingly this is the first case to reach this Court since the 1997 Act was introduced. As the scourge of knife crime increases I do not expect it to be the last. Nevertheless, I do not think this prosecution was well brought, nor do I think it typifies the kind of behaviour which this Act was intended to target. Is a samurai sword a knife? This issue need not detain us long. A sword is clearly a knife within the definition provided by s.10 of the Act and shares so many of the physical characteristics of a knife that there is no question it should be defined as such here. I do however note in passing, however, that future cases may be more problematic. The definition in s.10 of the Act is wide, almost to the extent of absurdity so that a sharpened pencil could potentially fit within the definition. But future judges dealing with more ambiguous cases may need to consider why Parliament has

specifically utilised the word knife in this legislation. Surely a more inclusive term could have been utilised, as in other criminal Acts, if a wide range of dangerous weapons were envisaged as potentially giving rise to offences. . The second issue raised by counsel is of greater weight. It is firmly established that the mere display of items cannot, without more, constitute an offer for sale Fisher v Bell [1961] 1QB 394. However, this Act, we must presume intentionally, adds a further dimension, by use of the term expose. Offer and expose are presented disjunctively. From this we can safely assume that Parliament intended the words to encompass different things, and to sidestep the difficulties that the criminal law has encountered with the phrase offer for sale. Accordingly I am willing to accept the prosecutions view that a mere display of goods may suffice for the purposes of this Act. This was decisive in the Crown Court, but the judge in our view went too far in suggesting that any display will suffice. This cannot be correct, for reasons I will explain. The goods on display must be displayed in such a way as to convey an intention to sell. Whether or not a displayed item is offered or exposed for sale will then be for the trier of fact to determine in all the circumstances of each case. Not everything in a shop window is for sale. No one would seriously go to a tailors or a clothes store and expect to purchase the mannequin as well as the suit. So it is here. Mr Austin must be entitled to some licence in the way he markets his shop as an entity. In this case, the items were displayed on the interior rear wall of the shop only; no genuine weapons were displayed in the window, and while I do not see that the position of a display of itself is in any way decisive, it is one of a number of factors the trier of fact can take into account. The items on the rear wall were also firmly fixed to that wall. They could not be readily removed for sale; again this does not wholly exclude the possibility that identical products were available for sale or by special order, though no evidence of such was found. Moreover, while no prices were displayed against these items, neither was there any express indication that they were for display purposes only. On balance, therefore, applying the test we propose, and taking all the circumstances into account, I conclude that the swords and other genuine weapons in this case were not offered or exposed for sale contrary to s.1(1). R v Bentham and Steel (2007) CA The accused in this appeal is the owner of a shop on the edge of Dartmoor, called Extreme Survival. As its name suggests it sells highly specialised wild terrain and survival equipment. Ms Bentham is the owner of the shop, though it is managed on a day-to-day basis by her partner, Mr Steel, a former member of Britains special forces, and a well-known member of a small religious sect that believes the end of the world is approaching, and that it has a duty to protect itself against the large scale civil unrest and armed conflict that will precede the end. The shop has a large window display visible from the road. At the time of the offence it contained two main displays; one of extreme weather gear

and related equipment, the other of hunting clothing, including camouflage jackets, and a display of hunting knives. The various clothing items were priced, but the knives were not. Beneath the knives was a sign stating Ask us about our large range of hunting and combat-style knives. Beneath that statement was the slogan Extreme Survival: When the day comes, only the prepared will survive. Bentham and Steel were convicted under s.1(1)(a) of the 1997 Act. They appealed to the Court of Appeal Bowie LJ This case has a number of unusual features. The defendants were convicted of marketing knives suitable for combat. When their premises were searched a number of knives, described by experts as combat and combat-style were also discovered, though these were not on public display anywhere in the shop. The evidence which seems to have been accepted by the Crown Court is that while combat-style knives appear similar to genuine combat knives, they are simulacra, lacking the blade strength and certain details common to genuine combat knives. The relevant part of the window display contained only hunting knives. It was put to us that the use of the reference to combat-style in the context of a display of knives is sufficient, when applying the test in Austin, to constitute the offence of marketing. I cannot see that it is quite so straightforward. The knives on display are purely hunting knives. While the defendants, by possessing a number of combat knives may have committed some offence, that does not mean that they committed an offence of marketing as defined by the 1997 Act. There was nothing to indicate that those knives actually displayed were suitable for combat; the reasonable imputation I would suggest is rather that these combat-style knives were being marketed for the purposes of hunting, not combat. Had the display involved a mixture of hunting and combat knives, or had combat knives been displayed elsewhere on the premises, my decision would, of course, have been otherwise. I would allow this appeal. Bayonet LJ I have had the advantage of reading in draft the judgment of Bowie LJ, with which I wholly concur. I would merely add that I would also have allowed this appeal on the basis that the window display did not in any event constitute an offer or exposure for sale under s.1(4). The statement concerning combat-style knives was an advertisement, an invitation to treat, as in the well-known case of Fisher v Bell. No combat or even combat-style knife was actually exposed for sale. Unlike offer, expose is an ordinary English word, it should be given its ordinary meaning (see Brutus v Cozens [1973] AC 854), which I take to be to show or display. Accordingly I too would allow this appeal. Dirk LJ

I concur with the opinions of my learned brethren Bowie and Bayonet LJJ and would also allow this appeal.