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by Mike Burke on Thu Jan 15, 2009 2:10 am

There are some interesting developments with regard to the carriage of weapons for self defence on another forum.

It would appear that a doorman has been found in possession of a police style baton which was found in his car and he was subsequently arrested and released on bail pending further enquiries.

I have now learned that he is being prosecuted for the offence of possession of an offensive weapon in a public place. When such a charge is made, there are two defences, lawful authority or reasonable excuse (or lawful authority or good reason in the case of a bladed article.)

The plea of lawful authority and the fact that it has never been put before a jury was raised on that forum back in March 2007 and the postings in response run to something like 38 pages.

I believe that the person concerned is going to run with the lawful authority defence which I put forward on that forum and that being so, we are going to have some interesting legal arguments to put before the jury.

It is about time that this issue was properly argued but until recently, there has been no research carried out to refute the legal arguments put forward by the prosecution in cases like this. which suggest that such a right to carry weapons in a public place in anticipation of being attacked no longer exists.

I believe that one of three things can happen. On hearing the evidence from both sides, the Judge either dismisses the case or allows the jury to decide. The jury can either give a guilty or not guilty verdict. If the jury return a guilty verdict, then he can appeal to the Court of Appeal on points of law and ultimately if necessary, the House of Lords.

Regards,

Mike Burke.
Mike Burke
Posts: 23
Joined: Fri Aug 15, 2008 9:54 pm
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Re: Lawful authority and the the law.
by Black Cat on Tue Jan 20, 2009 8:51 pm

It would appear Mike that what you allude to is quite correct, that is that the whole issue of what constitutes "Lawful Authority" remains undefined and undetermined. This is because, since 1953, the issue has never been put before a jury for their determination. There are are various opinions and theories as to what it might be including one written by Professor Richard Card which I attach below. Am I right in believing that now, since the House of Lords ruling in R -v- Wang it is the case that no judge may direct a jury to convict someone under any circumstances.

Authority and Excuse as Defences to Crime (1969)

By R. I. E. CARD Lecturer in Law, University of Birmingham
Introduction
Several statutes provide that it shall be an offence for a particular act to be done or for a state of affairs to exist "without lawful authority or reasonable excuse " or " without lawful authority or excuse." In addition, other acts, omissions or states of affairs are proscribed by statute if they are " without lawful authority or without reasonable excuse " or " without lawful excuse." Two of these offences may conveniently be cited as examples. Section 20 (1) of the Sexual Offences Act 1956 provides:

" It is an offence for a person acting without lawful authority or excuse to take an unmarried girl under the age of sixteen out of the possession of her parent or guardian against his will."

Section 1 (1) of the Prevention of Crime Act 1953 provides:

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 . .

The effect of these phrases in the relevant statutory provisions is to provide one of the surrounding circumstances constituting the actus reus of the offence in question. The offence in section 1 (1) of the Prevention of Crime Act 1953 is not committed merely by being in possession of an offensive weapon in a public place but only by being in possession of an offensive weapon in a public place without lawful authority or reasonable excuse. The requirement of possession without lawful authority or reasonable excuse is just as essential to render possession of an offensive weapon criminal as is the requirement that the possession must be in a public place. Both without lawful authority or reasonable excuse " and " in any public place " are essential circumstances of the actus reus of the offence in question. If either does not exist the offence cannot be committed.

The circumstances required for an actus reus to be constituted may relate either to past or present facts. These facts may be either objective or subjective. Examples of circumstances required for the actus reus of an offence are that the girl abducted must be under the age of sixteen for the offence under section 20 of the Sexual Offences Act 1956; that sexual intercourse was without the woman's consent in rape; and that the accused was under the protection of the Crown in treason. These three circumstances, which must exist at the time of the act in question, are respectively an objective fact, the state of mind of the victim and a personal characteristic of the actor.

Does a circumstance such as " without lawful authority or reasonable excuse " refer to an objective fact or a personal characteristic of the actor? If not, to what fact does it refer? This article attempts to reach some conclusions on the definition of such circumstances. There is very little case law on what constitutes " lawful authority or reasonable excuse " and similar phrases. The courts have declined to lay down positive and general definitions whenever the question of definition has been raised before them. They have preferred to decide each case on its particular facts. Their approach is exemplified by the following extract from Wong Pooh Yin v. Public Prosecutor. Lord MacDermott, giving the opinion of the Privy Council, said:

“Their Lordships doubt if it is possible to define the expression ‘lawful excuse' in a comprehensive and satisfactory manner and they do not propose to make the attempt. They agree with the Court of Appeal [of the Federation of Malaya] that it would be undesirable to do so and that each case must be examined on its individual facts .” Nevertheless, it is possible to build up some definition of the phrases.

Lawful authority
The first point to be disposed of is whether, when the words “lawful authority” are employed in conjunction with “or excuse” or "or reasonable excuse," the two parts of the conjunction are tautologous. In Harvey, D was indicted for knowingly and without lawful authority or excuse having in his possession a die impressed with the resemblance of the obverse side of a coin, contrary to what is new section 8 of the Forgery Act 1913. In his judgment in the Court for Crown Cases Reserved, Bovill C.J., said that he could not conceive a case where there could be a lawful authority which was not also a lawful excuse. He held that " excuse" included "authority." However, it is submitted that, even if "lawful authority" is also "lawful excuse," it by no means follows that the converse is true. It will be seen later in this article that "lawful excuse" is a wider term than "lawful authority."
The above dictum in Harvey must be contrasted with that of the Privy Council in Wong Pooh Yin v. Public Prosecutor. In that case the Privy Council was concerned with the offence under the Emergency Regulations of the Federation of Malaya of being in possession of firearms without lawful authority or excuse. The Privy Council stated that the absence of lawful authority (which was admitted by the accused) did not determine the absence of lawful excuse. This dictum would appear to represent the view taken by the courts who have given a wider interpretation to "excuse" than seems to be possible with " authority." Thus, a person who acts without lawful authority will not necessarily act without lawful excuse (or reasonable excuse, as the case may be).

In the absence of an authoritative definition of "lawful authority," it is suggested that "authority" must mean some authority from a public source such as a court or a government department, This appears to have been the view taken by the Divisional Court in Dickins v. Gill. In the course of argument in that case, D's counsel stated that "without due authority " in section 6 of the Post Office (Protection) Act 1884, obviously referred to an authority given by the Crown. This seems to have been accepted, obiter, by Grantham J., who treated "authority " as meaning the authority of the Crown. A similar view as to the meaning of " authority " was taken in Grieve v. Macleod by D's counsel and the sheriff substitute who tried the case. They both stated that they thought that "authority" in section 1 (1) of the Prevention of Crime Act 1953 implied " some kind of official licence or permission." Unfortunately, on appeal, the High Court of Justiciary did not deal with the question of what constituted " lawful authority (which was not relevant to the actual case) and therefore neither accepted nor contradicted these views.

Where the phrase "without lawful authority" exists in a statutory offence, it is not enough merely for a person to act, or a state of affairs to exist, under the authority of the Crown or some other public body. In addition, the authority must be lawful. The word lawful " in this context has never been defined by an English court but it is submitted that the correct approach was taken by Napier J. in Crafter v. Kelly which was a decision of the Supreme Court of South Australia. In that case, the court was concerned with the meaning of the words " lawful question" in the Primary Producers Debts Act 1935-1939. Thus the dicta concerning "lawful authority" was only obiter. Napier J. said that for the purposes of construing the word “lawful”:

“…..dictionaries are not very helpful, but I think that the natural meaning of 'lawful' depends on the context in which the word is used. It may mean, simply, 'permitted.' In this sense an act is lawful, when it can be done without any infraction of the law, and so of a lawful trade or purpose. Another use is in the sense of supported by law, eg., lawful authority, excuse, or impediment; but it seems to me that, in some connections, the word implies the quality of being “legally enforceable.” A lawful owner . . . is one whose rights are recognised and enforceable by the law ... I think that this sense-a question which the witness is, by law, compellable to answer-is the natural meaning of 'lawful question."”

From the slender evidence provided by Dickins v. Gill and Crafter v. Kelly it would appear that "lawful authority" means some authority from a public source which is supported by law. This, it is submitted, is the correct interpretation. Generally, the statutes under discussion do not contain an interpretation of "lawful authority" but their context would seem to require an interpretation such as that advanced above. The reason is that they are dealing with acts and states of affairs which may be carried out lawfully under the terms of the order of a court, an official licence or administrative decision which has been given pursuant to some statutory power or a power afforded by delegated legislation. It is, presumably, to such acts executed under statutory authorisation that "lawful authority" impliedly refers.

One or two examples of such a reference will be cited. The offence contained in section 12 of the Theft Act 1968, of taking a conveyance without authority provides that the taking should be “ without lawful authority.” “Lawful authority” here would seem to refer to those cases where a vehicle is taken by the police under a statutory power such as regulations made under section 20 of the Road Traffic Regulation Act 1967, or by a local authority's servant acting pursuant to section 20 of the Civic Amenities Act 1967. The offence of abduction of a girl of under sixteen has already been mentioned. It will be remembered that section 20 of the Sexual Offences Act 1956 requires the taking of a girl in the following circumstances: (a) without lawful authority or excuse, (b) the girl must be unmarried and under sixteen; (c) the girl must be in the possession of her parent or guardian, and (d) the taking must be against the parent or guardian's will.

There are several statutory provisions which authorise the removal of children and young persons (and therefore the removal of unmarried girls of under sixteen) from the possession of their parents or guardians, even though this is against the will of the latter. For instance, under the Children and Young Persons Acts of 1933 and 1963, a juvenile court, if satisfied that a child or young person is in need of care, protection or control, may order him or her to be committed to an approved school or to the care of a fit person. It would seem indisputable that a person removing an unmarried girl under the age of sixteen from the possession of her parent against his will and taking her to an approved school pursuant to a "care and control" order made by a juvenile court would not commit the offence of abduction of a girl of under sixteen. He would be acting with Lawful authority, an authority from a public source (the juvenile court) supported by law (the Children and Young Persons Acts). Thus the circumstance of "without lawful authority," required for the offence would be absent.
Unfortunately, the phrase "without lawful authority" in one or two offences cannot be referred to an express statutory authorisation. An obvious example is the offence contained in section 1 of the Prevention of Crime Act 1953. This prohibits the possession of an offensive weapon in a public place without lawful authority or reasonable excuse. What was previously not unlawful--merely possessing an offensive weapon in a public place--was made unlawful unless the possession was accompanied by lawful authority or reasonable excuse. The Act does not define " lawful authority " in this context and there does not appear to be any statutory provision giving authority to possess offensive weapons in a public place. Such an authority was unnecessary before 1953 but its absence since then leaves "lawful authority" in the 1953 Act with either no or an unknown meaning. It can be said that the phrase means a public authority supported by law, but what is the relevant law in this instance and what is the relevant public authority?

The difficulty in defining "lawful authority" in the 1953 Act appears to result from the fact that the phrase " without lawful authority or reasonable excuse " was inserted into its provisions in a simple imitation of other offences containing those words. Presumably, the intention of the drafters of the Act was to ensure that the offence did not apply to, e.g., policemen carrying truncheons on the beat and thought that this could be effected by the use of the phrase " without lawful authority." It is unfortunate that a definition of the phrase was not included in the Act. The Home Secretary, Sir David Maxwell-Fyfe (as Lord Kilmuir then was), in introducing the Bill in the House of Commons, dealt briefly with the phrase. He merely said that there were precedents for its usage in previous statutes.

It may be that " without lawful authority's in the Prevention of Crime Act 1953, was intended to bear a similar meaning to that borne by the phrase in section 4 of the Public Order Act 1936. Section 4 (1) of that Act provides that a person who, while present at any public meeting or on the occasion of any public procession, has with him any offensive weapon, otherwise than in pursuance of lawful authority, shall be guilty of an offence. Section 4 (2) is the only provision amongst those under discussion which attempts a definition of " lawful authority." Unfortunately, it does not define the meaning of the term, it does not state which is the relevant public authority or the relevant law which supports that authority. Instead it defines which persons will be deemed to have lawful authority. The list which it provides would seem to be exclusive. Section 4 (2) states that:

“For the purposes of this section, a person shall not be deemed to be acting in pursuance of lawful authority unless he is acting in his capacity as a servant of the Crown or of either House of Parliament or of any local authority or as a constable or as a member of a recognised corps or as a member of a fire brigade.”

Since the Prevention of Crime Act 1953 does not define " lawful authority " in its context or provide a " deeming " section and since the content of " an authority from a public source supported by law " cannot be ascertained from other legislation or a judicial decision in this instance, the law relating to offensive weapons is left in an uncertain state. It would seem clear that a person possessing an offensive weapon in a public place pursuant to an authorisation from a private source, e.g., a security guard employed by a private firm, will not have a lawful authority for possession. But a servant of a public body, such as the Crown, who possesses an offensive weapon in a public place with the authority of that body is in a dubious position with regard to criminal liability since it cannot be postulated with certainty in advance whether that authority is lawful. That a criminal offence is vague, uncertain and indefinite is a serious criticism. It is of fundamental importance that the criminal law should be clearly ascertainable in its content and extent. This is not so with respect to " lawful authority " in section 1 of the Prevention of Crime Act. It will be seen later that "lawful excuse" and “reasonable excuse” suffer from similar defects.
The same criticisms may be made of the identical offence relating to firearms in s. 19 of the Firearms Act 1968.
Black Cat
Posts: 4
Joined: Tue Dec 09, 2008 9:53 pm

Was he prosecuted?

If so what was the result?

Si

SimonJenkins wrote:Was he prosecuted?

If so what was the result?

Si

Simon, as is usual in cases like this, the person concerned subsequently accepted a police caution for the offence.

Guess we will just have to wait until some one else is arrested for the same offence and it's brought to my attention.

Regards,
Mike Burke.

Hi Mike,

But we do not know?

If he accepted a police caution then he accepts his guilt of breaking the law? Would such a caution add strength the police's interpretation of the law in the same way that case law is used?

Also thanks for posting I was beginning to think I was talking to my self.

Si

SimonJenkins wrote:Hi Mike,


Also thanks for posting I was beginning to think I was talking to my self.

Si

You might as well be talking to yourself.
Don't be fooled by Mike Burke. He's been banging on along the same lines for about 15 years, got nowhere and won't put his own theories to the test.
He'll respond in an apparently effective way to this post (if you are generally disposed to be sympathetic to his views) - he's got all the put downs like a cheap club comedian - but just ask yourself what he has achieved and why he has been banned from so many forums.

Burnt Offering wrote: just ask yourself what he has achieved and why he has been banned from so many forums.

I guess the questions are more for Mike than me, but it could be an intresting reply, I am guessing you have been involved with Mike Burke in the past?

And Burnt Offering thanks for posting as well, do you have any ideas on the questions that I posted in then "All the Way Down the Slippery Slope" forum about the national shooting association view on shooting related issues?

Si

Burnt Offering wrote:

SimonJenkins wrote:Hi Mike,


Also thanks for posting I was beginning to think I was talking to my self.

Si

You might as well be talking to yourself.
Don't be fooled by Mike Burke. He's been banging on along the same lines for about 15 years, got nowhere and won't put his own theories to the test.
He'll respond in an apparently effective way to this post (if you are generally disposed to be sympathetic to his views) - he's got all the put downs like a cheap club comedian - but just ask yourself what he has achieved and why he has been banned from so many forums.

Err…..Burnt Offering, I have been banned from only one forum, British Blades. Did you read through the whole thread on that site to understand the arguments or just the bits that I posted?
I subscribe to the following forums. Which other ones have I been banned from?
Cybershooters.org
AirgunBBS.com
Police Specials.com
workingthedoors.co.k
criminalsolicitor.net
ukpoliceonline.co.uk
shootinguk.co.uk
armbritain.com
+ various RKBA sites in the USA.
Could you also explain what you mean by “he's got all the put downs like a cheap club comedian” because I have never heard that expression before.
As for putting my own theories to the test, did you not know that I went to the High Court in London in 1999 carrying an asp and lock-knife and hand them in for safekeeping and ask for them back on the way out?
Did you not know that the asp was returned to me and although the lock-knife was retained by the police, it was subsequently returned?
Why didn’t the policeman who retained the knife follow me out of the police room and then arrest me for carrying the asp in a public place. After all, wouldn’t it have been the easiest arrest he would ever have had to make?
Did you not know that I carry an asp everywhere I go and have done since 1998?
Did you not know that I carry a knife with a locking blade wherever I go and have done since 1998?
Did you not know that I carry a Swiss multi tool with a locking blade wherever I go and have done so since 1998? (Actually, I lied on this one. I didn’t realise that the one I used to carry didn’t have a locking blade. Been rectified now!)
Did you not know that the Home Office and Thames Valley police are aware that I carry weapons but choose not to do anything?

I wonder why?

Maybe I might just be right.

Have you read my reasonable force articles because if you did you would have discovered that I was also right there as well.

I conclude with the following extracts from the debates in what was to become the 1988 Criminal Justice Act.
You will note that Lord Paget mentions the Fegan Case, the petrol bomb case and the subsequent decision from the Appeal Court in the Attorney-Generals Reference of 1982, exactly as I discovered in my research.

Note the remark from Lord Denning. “I can well understand the anxiety of my noble friend Lord Paget to say that if a man has a knife with him for self-defence then he is not guilty of any offence. I quite agree with that. He wants to put it in express terms, but it is really covered by the existing terms.”

And just what was the existing term? Lawful authority, just as I said.

Regards,
Mike Burke.
………………………

Lord Paget of Northampton. My Lords, I am blushing. This is far and away the most important clause of the Bill. The Bill on the whole is a tidying-up Bill. It tightens up procedure. This matter goes to the roots of a very fundamental right of the Englishman—the right to defend himself.
Lord Paget of Northampton moved Amendment No. 121: Page 89, leave out lines 11 and 12 and insert— ("(b) to enable him to perform a public duty; or (c) for his own defence or for the defence of his property or the property of others with which he has been entrusted.").
The noble Lord said: My Lords, I am most grateful. It is a little complicated. I was for a moment trying to defend myself from the allegations that I was a radical trying to upset the law. I am in fact a conservative character seeking to uphold the principles of English law as they have been understood from time immemorial.

I am not impressed by talk of natural rights. I do not believe that they exist. The rights that we enjoy are derived from the society into which we are born and to which we owe concomitant obligations. In other words, I am concerned for the rights of Englishmen. These include, and always have included, the right of self-defence. Indeed it is the right of self-defence that the Americans took from us and put into their constitution. As is their habit, sometimes they exaggerated a bit in taking it, but it is the fundamental idea of the right of self-defence both here and taken to America. That right includes the right to arm oneself against dangers which one may reasonably anticipate. That is the law, and I do not want to see it altered.

The most recent case, and one from which I wish to quote, is the Lord Chief Justice's judgment in what is generally known as the petrol bomb case. There is a law against making petrol bombs or other explosive instruments unless made for a lawful object—the same words we are considering here. In this case the accused had his shop wrecked by a crowd. He had feared that the same thing would happen again—it was in a difficult area—and made six petrol bombs to defend his shop against a mob which might attack it.
When somebody found the bombs, he was prosecuted. I am bound to say that I would find it a little hard to feel that petrol bombs as an anti-personnel weapon were reasonable, or indeed that one is really entitled to defend one's shop by setting fire to a district. Nonetheless the Lord Chief Justice found that the accused was entitled to since the object for which he made these bombs was a lawful one to defend his property.

In the course of that judgment he referred to the case of R v Fegan. There the defendant was a Roman Catholic married to a Protestant. On that account he had been subject to threats and beatings. He described how he bought the gun for his own protection and if need be for the protection of his house and family. He was charged and convicted under Section 4 of the 1883 Act—that is, the firearms Act—for having a gun without reasonable excuse. He was acquitted, and the Lord Chief Justice here says that he was quite rightly acquitted. The court found that the appellant genuinely and reasonably feared for the life and safety of himself and family and held the pistol for use if necessary as a protection against danger. There was the right to arm yourself for defence.

I turn to the judgment and the question that the defence has to be a spontaneous reaction; and the Lord Chief Justice said: There was no question of a person in danger of attack 'writing his own immunity' for violent future acts of his. He was not confined for his remedy to calling in the police or boarding up his premises. He might still arm himself for his" own protection, if the exigency arose, although in doing so he might commit other offences". Then finally this is the reply to the question put by the Attorney-General and the formal finding: The defence of lawful object is available to a defendant against whom a charge under section 4 of the 1883 Act has been preferred, if he can satisfy the jury on balance of probabilities that his object was to protect himself or his family or his property against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers". I think that establishes my proposition that the right of self-defence and the right to arm yourself for your defence despite the firearms Act, despite the Explosives Act, despite this Bill, is an Englishman's right which must be preserved and I believe guarded.

Lord Denning My Lords, may I say a word on this? I can well understand the anxiety of my noble friend Lord Paget to say that if a man has a knife with him for self-defence then he is not guilty of any offence. I quite agree with that. He wants to put it in express terms, but it is really covered by the existing terms. The man has to prove that he had good reason or lawful authority. Surely the best of reasons—the "good reason"—is that he had it with him for the purpose of self-defence or with lawful authority, as the case may be. Therefore, the case of self-defence is already provided for by the section; that if he has it for self-defence or with any lawful authority it comes within "good reason".

The noble Lord is anxious about the case of Mr. Butler, who went on an Underground railway and had with him a swordstick. It looked like an ordinary stick but he could draw out a sword from it. When a mugger came along he managed to run him through with it. Many people might think that that was a good thing to do. However, there is no doubt that the court found him guilty, fined him £200 and gave him a suspended sentence of two years' imprisonment.

I should not like to criticise the judgment and I do not know whether it is under appeal. I believe that if the accused could persuade judge or jury that he had the stick for the purpose of self-defence only, it would in the ordinary way be a good defence.

For anyone who has not seen my articles on reasonable force, the following links will take you to a website where they have been posted.
Regards,
Mike Burke.

http://dvc.org.uk/dunblane/force.html

http://dvc.org.uk/dunblane/force2.html

When I made postings regarding the discredited Sportsmans association Burnt Offering requested me to put 'my money where my mouth was' or words to that effect. I obliged. Now I would ask Burnt Offering to reciprocate. I have always much respect for Mr. Burke but I should be interested in learning something Burnt Offering may know that I may have missed.
In any case I should be interested to learn Burnt Offering's view on my right to self defence. Before I visit a bank to draw or pay in cash I carry out the Government law of 'risk assessment'. I decide that there is a reasonable chance of being attacked and robbed. I cannot afford to employ a body guard so I carry an asp.as I feel it not just desirable but my duty to do so. There are never any police officers around should I need help and even if there were I believe they have to carry out their own risk assessment before getting involved! I remember a Chief Constable of Norfolk broadcasting that in order for a person to avoid being raped it was only necessary for them to scream! I ask you.!
We now live in a country where old folk are afraid to go out after dark and what is more sad they are afraid to go out during daylight. What a sad country we live in.

Burnt Offering wrote:

SimonJenkins wrote:Hi Mike,


Also thanks for posting I was beginning to think I was talking to my self.

Si

You might as well be talking to yourself.
Don't be fooled by Mike Burke. He's been banging on along the same lines for about 15 years, got nowhere and won't put his own theories to the test.
He'll respond in an apparently effective way to this post (if you are generally disposed to be sympathetic to his views) - he's got all the put downs like a cheap club comedian - but just ask yourself what he has achieved and why he has been banned from so many forums.

Burnt Offering,
This is extremely interesting to me, as I have always accepted the information submitted by Mr. Burke as being verbatim.As far as I have been aware, he has made stupendous studies of Arms for defence under our Constitutional right, and is obviously most knowledgeable on the subject, and furthermore, I have never seen any rebuttals on any forum from either the Home Office or the Police,and have therefore concluded that Mr.Burke is right.
However after reading your latest post, you have me most concerned that I may have been in receipt of the wrong information these past few years, deriving from Mr. Burke's posts.
Burnt Offering, as you seem most positive that Mr. Burke is talking nonsense perhaps you might enlighten us all to the discrepancies in Mr Burke's posts and other writings.
Will you please explain quite exactly just what particular references of Mr.Burke's need correcting, and will you specify the particular legislative/constitutional corrections that you feel will invalidate Mr.Burke's statements.
Many thanks,
I look forward with great anticipation to you expounding the real and substantiated facts.