D.P.P. -V- AK Court 45 on the 7/8/2009

Knife crime is always a matter of concern to public safety, particularly, when taken with the presence of alcohol. The Firearms and Offensive Weapons Act, 1990 outlaws the possession of a blade or sharply pointed knife in a public place. The legislation does however provide a statutory defence, that if the person arrested has a lawful excuse for having the knife in his/her possession then they may be able to rely on that defence and successfully avoid a criminal conviction with all the stigmatisation that brings. Peter Connolly successfully defended a case where Mr. AK was with two friends of his walking home after a night out. They had appeared to have consumed alcohol. It is not an offence (not yet anyway) to be in a public place having consumed alcohol.The three men were walking in the middle of the road and a Garda invoked a stop and search in which two knives were found on Mr. AK and seized from him. AK was co-operative and consented to the search and seizure (incidentally there was no evidence that the Garda had any reasonable cause to invoke a stop and search power). When arrested and charged the accused volunteered that the knives were not his but were his employer’s. He had them in his possession after leaving work (thus satisfying the defence). AK was a model employee and his employer came to Court to give evidence on his behalf that there was an innocent explanation for him being in possession of the knifes after work. His employer had since implemented a health and safety policy to ensure that work tools were to be kept at work in the relevant employee’s locker after a shift. (The employer is to be commended for this sensible approach).

His Honour Judge Brian McMahon was satisfied having heard the evidence from both sides that AK was innocent and acquitted him on the merits returning a not guilty verdict.

AK was granted legal aid in this case and when he consulted Mr. Connolly he indicated that he wished to plead guilty. Had he done so he would have been fined or at least been given the Probation Act but either result can have future negative consequences for the person. Having availed of criminal legal aid and sound advice he left court with his good name and reputation intact.

What obvious lessons should be taken from such a case ? Firstly any employer whose employees’ have cause to use sharp implements at work should adopt a policy along the lines utilised by the employer in this case. The Gardai were very fair in the way they handled the case but had they exercised some discretion in the manner then perhaps a Court case was not necessary. For example leaving aside the legal question of whether the Garda had suspicion to ground a stop and search, the Garda could have seized the knives taken an account from the accused and verified is story with his employer the following day and then returned the knife. Easier said than done but no one case is the same as another.

This case demonstrates the benefits of having specialist legal advice from a criminal law solicitor when dealing with the Gardai and in a tangential way has implications for employment /health and safety law.

If you have any queries on criminal law, employment law or entitlement to criminal legal aid please do not hesitiate to contact Peter Connolly directly.

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