Knox v Anderton [1983] 76 Cr. App. R. 156

Knox v Anderton

[Divisional Court]
12 November 1982
(1983) 76 Cr. App. R. 156
Lord Justice Ackner and Mr. Justice Webster

November 12, 1982

Public Place—Possession of Offensive Weapon in Public Place—Block of Estate Flats to Which Public Have Access—Whether Landing of Flats a Public Place Within Prevention of Crime Act 1953(1 & 2 Eliz. 2, c.14), s.1(4) .

By section 1(4) of the Prevention of Crime Act 1953 : "In this section ‘public place’ includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise …"

In determining whether a place is a "public place" to which, at the material time, the public have access, justices are entitled to find that premises where *157 there are no barriers or notices restricting access, such as the upper landing of a block of flats which could be entered by members of the public without hindrance, are a public place within the meaning of section 1(4) of the Prevention of Crime Act 1953 .
Cawley v. Frost (1976) 64 Cr.App.R. 20; [1976] 1 W.L.R. 1207 considered . Edwards and Roberts (1978) 67

Cr.App.R. 228 distinguished .

[For meaning of public place, see Archbold, 41st ed., para. 25-9 .]
Case stated by Greater Manchester Area Justices sitting at Salford.

1. At about midnight on July 27, 1981, the defendant was arrested by Police Constable Peter McGawley of the Greater Manchester Police Force. The defendant was taken to a police station where later in the morning of July 28, 1981, he was charged by James Anderton, the Chief Constable of Greater Manchester police, that he at the city of Salford on July 27, 1981, without lawful authority or reasonable excuse had with him in a public place called Langworthy Estate an offensive weapon, namely, a claw hammer, contrary to section 1 of the Prevention of Crime Act 1953 .

2. The only evidence heard by the justices was that of the prosecution. This they heard on November 13, 1981, when the justices found the following facts: (a) at 11.50 p.m. on July 27, 1981, Constable Peter McGawley arrived at the Langworthy Estate Flats in Salford. A disturbance was taking place and a small crowd had gathered. (b) The police officer saw two men running along one of the upper "landings" to one of the blocks of flats. He could see that one of them had an object in his raised hand. The officer ran to the place where he had seen the men. There he discovered the defendant and a man named Philip Garbett. The defendant had a claw hammer in his hand. The men were standing on a "landing" which gives access to the flats situated on that floor. They were shouting abuse at one another. Both men resided within that particular block of flats. The defendant raised the hammer in an aggressive manner and shouted "Let me get the bastard." This was after the police officer had placed himself between the two men. The defendant then attempted to attack the man Garbett. At this stage the officer managed to take the hammer from the defendant and arrested him. (c) The plans produced accurately represent the Langworthy Estate, the landings in question and the surrounding district at the time they were drawn. The surrounding district was steadily being demolished and so subject to constant change. (d) There were in the region of 420 flats on the Langworthy Estate housing in the region of 1,500 people. (e) At the rear of the estate, that is to the north of the estate, there were main railway lines. Until recently there was a bridge for the use of pedestrians over the railway lines. A motorway was being constructed running parallel with the railway. Whilst this construction had been taking place the pedestrians' bridge had been removed. There was no evidence as to whether the bridge would be replaced when the motorway workings were complete. Before the bridge was demolished it was used by the inhabitants of the estate to walk to the main shopping precinct in Salford. The bridge was also used by persons other than those residing on the Langworthy Estate to get from the south side of the railway to the north side and onwards to the shopping precinct. To do so many of these people would walk through the Langworthy Estate. No attempt was made to stop them. There is a community centre within the Langworthy Estate. The centre was used by both residents of the estate and non-residents. There were notices on some of the buildings at the entrance to the estate which read "Parking of vehicles above 10 cwt. on the estate is Prohibited, Access is restricted to tenants and their visitors only." They were not official signs in the sense of complying with the Road *158 Traffic Acts. (f) The Langworthy Estate was the property of the local authority. (g) There was nothing to prevent any member of the public from entering the estate. There was nothing to stop members of the public from entering the stairways of the blocks of flats. There was no barrier to prevent members of the public walking along the landings which give access to the individual flats. There were no doors to the stairways or landings which were open to the atmosphere. There were no notices to suggest that there was any restriction of access to the landings and stairways or indeed to the whole estate except those notices mentioned in relation to motor vehicles.

3. At the end of the prosecution's evidence Mr. Peter Mercer, the solicitor acting for the defendant, submitted that there was no case to answer. He contended that the place where the incident had occurred was not a public place. He suggested that the criterion for deciding whether a place is a public place was that laid down in Elkins v. Cartlidge [1947] 1 All E.R. 829 . That approved the earlier case of Collinson (1931) 23 Cr.App.R. 49 . The criterion was whether or not at the relevant time the public were being invited to use the place. It was submitted that the public were not invited into either the Langworthy Estate, or more particularly on to the stairs and landing. The stairs and landings were private property of the council, who gave certain limited rights of access and passage simply to tenants of the estate and their visitors. The stairways and landing could be severed from other parts of the estate in that their sole use was to gain access to the flats, and not to any public facility. Landings and stairways giving access to flats alone could be distinguished from recent case law requiring one to have regard to an area as a whole, rather than separate parts. Part of the area of the Langworthy Estate, namely the flats themselves, was undoubtedly private property and the landings and stairways should be considered as an adjunct to that.

4. Mr. Kenneth Smith, the solicitor for the prosecutor, contended that the landings to the Langworthy Estate flats were a public place. In support of his contention Mr. Smith submitted: (1) As the plans (produced) showed the flats were all of a uniform construction, there being four floors in all, lettered A to D. (2) There were numerous stairways giving access to each level and people were able to move freely from one floor to the next. (3) At ground floor level there was a walkway or pavement serving all ground floor flats. (4) That was repeated at each of the upper levels, the only difference being there was a balustrade to prevent persons falling over the edge. They were, in effect, therefore pavements in the sky. (5) It followed from the layout described above that persons were able to walk considerable distances along the pavements. (6) Until recently there was a footbridge at the rear of the flats used by the public to cross over the railway to give access to Eccles New Road in one direction and the shopping precinct in the other. That brought people who were not tenants through the flats complex. (7) There was a community centre next to the superintendent's house not restricted to use by tenants of the flats. (8) Apart from the vehicular control notices displayed at the entrances from Eccles New Road no steps have been taken to prevent access by the public which the above points at 6 and 7 show has in fact been exercised. (9) The open spaces and roadways at the front and rear of the flats and the pavements at the ground floor must therefore be found to be public places within the definition required by this Act. (10) The authorities, to which the justices were referred, tend to indicate that complexes should be viewed as a whole rather than be split up into separate segments to be given separate consideration. On this basis since there was nothing to prevent persons going up to the higher levels should they choose, the pavements in the sky fall within the scope *159 of the Act. (11) They are in many ways no different from cul-de-sac access which would normally be exercised by a limited number of people.

5. The justices were referred to the following cases: Kane [1965] 1 All E.R. 705 ; Cawley v. Frost [1976] 1 W.L.R 1207; [1976] 3 All E.R. 743 ; Anderson v. Miller (1964) 64 Cr.App.R. 178 ; Edwards and Roberts (1978) 67 Cr.App.R. 228 ; Elkins v. Cartlidge [1947] 1 All E.R. 829 and Collinson (1931) 23 Cr.App.R. 49 .

6. The justices were of the opinion there was no restriction on members of the general public entering the Langworthy Estate. That the estate had to be considered as a whole, with the exception of the actual dwellings. That they were entitled to have regard to the mischief at which section 1 of the Prevention of Crime Act 1953 was directed. The justices were of the opinion that the place where this incident took place was a public place.

7. Having announced their opinion and that they therefore rejected the submission of no case to answer, the defendant changed his plea to one of guilty. After hearing about the defendant's personal circumstances they ordered that he pay a fine of £40 and £10 toward the costs of the prosecution.
The defendant appealed.

8. The question for the opinion of the court was were the justices right or wrong in finding that the landings to the Langworthy Estate flats in Salford were a public place.

J. M. Shorrock for the defendant. N. M. Simmonds for the prosecutor.

Ackner L.J.:
I will ask Webster J. to give the judgment of the court.

Webster J.:
This is a defendant's appeal by way of case stated by Justices for the County of Greater Manchester sitting at Salford in respect of their adjudication on November 13, 1981, whereby they convicted the appellant of having, on July 27, 1981, without lawful authority or reasonable excuse with him in a public place called Langworthy Estate an offensive weapon, namely, a claw hammer, contrary to section 1 of the Prevention of Crime Act 1953 .

It was not disputed before the justices that on that date the defendant, when standing on an upper landing of a block of flats on the Langworthy Estate in Salford, had a claw hammer in his hand, and that this was an offensive weapon. The only issue raised before the justices, which was raised at the close of the prosecution evidence, was whether that landing was a public place within the meaning of that expression in the Prevention of Crime Act 1953 . The justices rejected the submission made on behalf of the defendant that it was not a public place, whereupon the defendant, who had previously pleaded not guilty to the charge, changed his plea and pleaded guilty. The question for the opinion of this court is whether the justices' finding that the landings to the Langworthy Estate flats in Salford are a public place was wrong in law.
Before considering the facts, it is convenient to note the definition of the expression "public place" in section 1(4) of the Prevention of Crime Act 1953 , which is that: "In this section ‘public place’ includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise …" This definition of "public place" for the purposes of section 1 of the Prevention of Crime Act 1953 is in precisely the same terms as its definition for the purposes of the Public Order Act 1936 , as amended by section 33 of the Criminal Justice Act 1972 ; although for the purposes of the Public Order Act 1936 there is also a definition of the expression "private premises."

The facts found by the justices, so far as material, are as follows. The Langworthy Estate is the property of the local authority. There are in the region of 420 flats on the estate housing approximately 1,500 people. Plans of the estate produced to the justices showed that the flats are all of a uniform construction, there being four floors in all in each particular block with, in each block, numerous stairways giving access to each level so that people are able to move freely from one floor to the next. At ground floor level there is a walkway or pavement serving all ground floor flats which is repeated at each of the upper levels, the only difference between the upper and the ground floor levels being that there is a balustrade on the upper levels to prevent persons falling over the edge. Until the demolition of a nearby bridge shortly before the hearing before the justices, many people, not being residents on the estate, used to walk through the estate in order to reach a shopping precinct on the other side of the bridge from the estate, and no attempt had been made to stop them doing so. There is a community centre within the estate used both by residents of the estate and by non-residents. There is nothing to prevent a member of the public from entering the estate, there is nothing to stop members of the public from entering the stairways of the blocks of flats, there is no barrier to prevent members of the public walking along the landings which give access to the individual flats, and there are no doors to the stairways or landings, which are open to the atmosphere. There are no notices to suggest that there is any restriction of access to the landings and stairways or to the whole estate except that there are notices on some of the buildings at the entrance to the estate which read "Parking of vehicles above 10 cwt. on the estate is Prohibited, Access is restricted to tenants and their visitors only."

Mr. Shorrock's submission on behalf of the defendant amounted to a challenge of the justices' decision that the landing was a public place on two grounds, the first that the justices expressly misdirected themselves and the second that their decision was perverse, that is to say a decision which no reasonable justices, properly directing themselves, could reach upon the facts found by them.

Mr. Shorrock submitted that the justices expressly misdirected themselves in expressing the opinion "that the Estate had to be considered as a whole, with the exception of the actual dwellings." We do not regard that as a misdirection. In Cawley v. Frost (1976) 64 Crim.App.R. 20; [1976] 1 W.L.R. 1207 , where the question was whether a particular part of a football ground was a public place for the purposes of sections 5 and 9(1) of the Public Order Act 1936 , Lord Widgery C.J. at pp.24 and 1212 respectively said: "Prima facie you look at the whole establishment and you are not … deterred from doing that merely by finding that certain portions of the establishment have been denied to the public for one reason or another." Mr. Shorrock also, as we understand him, submitted that the justices misdirected themselves when expressing the opinion that they were entitled to have regard to the mischief at which section 1 of the Prevention of Crime Act 1953 is directed; but there is abundant authority to support that direction. We cannot, therefore, conclude that the justices expressly misdirected themselves.

The question remains whether their decision was perverse.

In support of his contention that it was, Mr. Shorrock relied, primarily, on two points. He submitted that there is no evidence from which the justices could have inferred that members of the public had an implied licence to go on to the landings, and he relied upon a passage in the judgment of Bridge L.J. (as he then was) in Llewellyn Edwards and Eric Roberts (1978) 67 Cr.App.R. 228 , 231 , where Bridge L.J. said: "… it seems to this Court that it is quite impossible to hold that the expression ‘public place’ can be construed as extending to the front gardens of *161 private premises simply on the footing on which the learned judge relied that members of the public have an implied licence to pass through those private gardens in order to obtain access to the front doors of private premises if they have some lawful occasion for so doing. It is not qua members of the public that they thus enjoy access, it is qua lawful visitors."

As to this contention, however, it is to be remembered that the definition of a public place contains two distinct alternative elements, namely, premises or a place to which at the material time "the public have … access," and premises or a place to which at the material time "the public … are permitted to have access." For reasons which will later become apparent in this judgment, it is clear to us that the justices in the present case decided that the landings were a public place for the first, not the second, of those two reasons, namely, because they were premises or a place to which at the material time "the public have … access." They made and purported to make no finding that the public had any implied licence or permission to go on to the landings and they made no reference to any such licence or permission in the reasons given for their decision. We, therefore, reject the first of Mr. Shorrock's points in support of his contention that their decision was perverse.

His second point was a more broad one, namely, that it defied common sense to regard the landings as a public place; and in support of that contention he relied upon the decision in Llewellyn Edwards and Eric Roberts ( supra ) and upon a decision of Judge Nance in Heffey [1981] Crim.L.R. 111 . The landings, he submitted, must be just as much a private place as were the front gardens in Edwards and Roberts ; but as to that submission it has often been said that each case has to be decided upon its own particular facts, and in that case there was a gate which presumably separated the garden from the public road or pavement; see Bridge L.J. quoting the trial judge: "‘Persons, members of the public, are by implication permitted by the owner/occupier of the dwelling house to approach that dwelling house via the garden and gate, the steps, and up to the front door ….’" It is true that in Heffey ( supra ) Judge Nance upheld a defence submission that the third floor landing of a block of council flats was not a public place; but there is no indication whatsoever in the short report of that decision as to the particular facts in that case.

We do not, therefore, think that either of those two decisions enable Mr. Shorrock to show that the decision of the justices in this case, on the facts before them, was one which no reasonable bench of justices properly directing themselves could have reached. It seems clear that the first stage in the reasoning or fact-finding process which led to that decision was their "opinion" (which is really a finding) that there was no restriction on members of the general public entering the Langworthy Estate." That finding was, in our view, wholly consistent with the evidence as to the use of the estate by persons not residing there and as to such notices as there were purporting to restrict access to it. Had the question arisen, therefore, the justices would have been perfectly entitled, in our view, to have decided that the estate itself was a public place as, by inference, they have done. At what point, short of the front door of the individual flats, can it be said as a matter of inevitable inference from the facts found to have ceased to have been a public place? And in particular can it be said, as a matter of inevitable inference from those facts, to have ceased to have become a public place before the landings are reached? In our view there is no inevitable inference that it ceased to become a public place at any point before the landings are reached, in view of the justices' findings that there was nothing to stop members of the public from entering the stairways of the blocks, that there was no barrier to prevent members of the public walking along the landings which give access to the individual flats, that there were no doors to the stairways or landings which were open to the atmosphere and that there were no notices to suggest that there was any restriction of access to the landings and stairways or indeed to the whole estate except the notices posted on some of the buildings at the entrance to the estate to which we have already referred.

For all these reasons we would, slightly rewording the question for the opinion of this court, answer it by saying that the justices have not been shown to have made any error of law in finding that the landings were a public place and we, therefore, dismiss this appeal.