England and Wales Court of Appeal (Criminal Division) Decisions

NORTH, R v. [2001] EWCA Crim 544 (9th March, 2001)

Case No: 00/2737/X4

Neutral Citation Number: [2001] EWCA CRIM 544

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SNARESBROOK

CROWN COURT (HH JUDGE KING)

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 9^th March 2001

LORD JUSTICE MANCE:

1. Under s.17(2) of the Firearms Act 1968 a person commits an offence if

"[he], at the time of his committing or being arrested for an offence specified in Schedule 1 to this Act, has in his possession a firearm or imitation firearm ..... , unless he shows that he has it in his possession for a lawful object".

2. The present appeal turns on the meaning and scope of the concept "has in his possession" in this subsection.

3. At about 9.30 p.m. on 9^th June 1999 Adrian Brazier was standing on the balcony of 39 Limbourne Avenue, taking part in a birthday celebration, when he was hit by an airgun pellet fired from the balcony of 81 Limbourne Avenue. The pellet came from a BSA air rifle, which was found half and hour later when police searched a nearby white Astra van nearby in the street. The appellant and his co-defendant, Hollick, were present and were arrested at this time in the street. Hollick admitted that this rifle belonged to him, and later pleaded to an offence of having it in his possession on arrest within s.17(2) (count 1). Hollick, the appellant and two others were all convicted at trial of being party to the use of the firearm to assault Adrian Brazier (count 2).

4. On a search of 81 Limbourne Avenue, immediately following the appellant's arrest, the appellant directed the officers' attention to a further firearm, a Welsley Osprey air rifle, hidden under a bed in the upstairs bedroom used by the appellant and his girlfriend. Count 3, to which alone this appeal relates, asserted that he had this firearm in his possession on arrest within s.17(2). In interview, the appellant admitted that he had fired this rifle towards the balcony of 39 Limbourne Avenue, but said that he had only done so while that balcony was empty. He was not charged (as he might well, on the face of it, have been) with having this rifle in his possession at the time of the commission of the assault on Adrian Brazier. It appears that he had put the rifle under his bed and left the flat locked before going outside to the van near which he was arrested.

5. In these circumstances, at the outset of the trial the defence submitted that an offence could only be committed under s.17(2) by a defendant who physically had the firearm with him at the time of committing or being arrested for an offence specified in Schedule 1. The judge rejected that submission, taking the view that possession in the subsection had "the sense generally and widely accepted ...., namely custody and control, but not limited to physical custody". The appellant then pleaded guilty to count 3. He now submits that the judge's ruling was wrong in law, that s.17(2) has a more confined scope and that the judge should, at least, have left it to the jury to say whether the relationship between the appellant and the air rifle under his bed involved his having it "in his possession" at the time of his arrest.

6. The heading of s.17 is "Use of firearm to resist arrest" and the whole section as enacted reads:

"(1) It is an offence for a person to make or attempt to make any use whatsoever of a firearm or imitation firearm with intent to resist or prevent the lawful arrest or detention of himself or another person.

(2) If a person, at the time of his committing or being arrested for an offence specified in Schedule 1 to this Act, has in his possession a firearm or imitation firearm, he shall be guilty of an offence under this subsection, unless he shows that he has it in his possession for a lawful object.

(3) A firearm or imitation firearm shall, notwithstanding that it is not loaded or is otherwise incapable of discharging any shot, bullet or other missile, be deemed to be an offensive weapon or instrument for the purpose of section 23(1)(a) of the Larceny Act 1916 (armed robbery) and section 28(1) of that Act (going armed by night).

(4) For purposes of this section, the definition of "firearm" in section 57(1) of this Act shall apply without paragraphs (b) and (c) of that subsection, and "imitation firearm" shall be construed accordingly.

(5) [Applies to Scotland]."

7. Subsection (3) was repealed by the Theft Act 1968. Subsection (4) has the effect that s.17 only applies to "any prohibited weapon", and not to a mere component part or accessory. Schedule 1 to the Firearms Act 1968, as amended, lists offences under s.1 of the Criminal Damage Act 1971; under the Offences against the Person Act 1861 ss.20 to 22 (inflicting bodily injury, garrotting, criminal use of stupefying drugs), 30 (laying explosive to building etc), 32 (endangering railway passengers by tampering with track), 38 (assault with intent to commit felony or resist arrest) and 47 (criminal assault); under Part 1 of the Child Abduction Act 1984 (child abduction); under Theft Act 1968 s.12(1) (theft, robbery, burglary, blackmail, taking of motor vehicle or other conveyance without owner's consent); under Police Act 1996 (assaulting constable in execution of his duty); under Criminal Justice Act 1991 (assaulting prison custody officer); under Criminal Justice and Public Order Act 1994 (assaulting secure training centre custody officer); and under Sexual Offences Act 1956, s. 1 (rape) and 17, 18 and 20 (abduction of women), as well as aiding or abetting or attempting to commit any offence so specified.

8. Miss Black for the appellant invites us to gain assistance from the heading to s.17. We proceed on the basis that it may be taken into account for present purposes, although (not being the product of any Parliamentary deliberation) such a heading cannot have equal weight with the words of the Act: see DPP v. Schildkamp [1971] AC 1, esp. per Lord Reid at p.10. On the present issue we find the heading of little real assistance. It is apt in relation to subsection (1), but it is difficult to relate directly to subsection (2), whatever scope may attach to that subsection. The same applies to the subsequently repealed provisions of subsection (3). The gist of Miss Black's submission is that the heading shows concern with circumstances in which a firearm might actually be used on arrest. But the wording of subsection (2) deals not merely with arrest, but with commission of an offence, where a weapon may be used not to avoid arrest but to compel submission, as well as with any possession which is not for a lawful object. In any event, accepting that the heading would by itself suggest a focus on the risks of use of firearms during arrest, there are, in our view, other more compelling indications of the true scope of the subsection, to which we will come.

9. The Firearms Act 1968 enacts a series of firearms related offences, of different seriousness and enabling punishments of corresponding severity listed in Schedule 6. S.1(1) provides for the simple offence of having in one's possession, or purchasing or acquiring, a firearm without holding a firearm certificate in force at the time or otherwise than as authorised by such certificate. The maximum punishment for this offence is, on summary disposal, 6 months or, on indictment, 5 years (7 years, where the offence is committed in an aggravated form under s.4(4) - more particularly where it relates to a shotgun with a barrel shortened to less than 24 inches or a converted firearm), or in either case a fine or both. The maximum sentence under s.17 was formerly 7 years imprisonment or a fine or both, but is now life imprisonment or a fine or both. Miss Black invokes this consideration, in submitting that s.17(2) should be given a limited scope.

10. Miss Black also draws attention to the Court of Appeal decision in R v. Nelson [2000] 3 WLR 300. The court there, distinguishing or departing from a previous decision of the Court of Criminal Appeal in R v. Baker (1961) CAR 47 under the almost identically worded provisions of the predecessor s. 23(2) of the Firearms Act 1937, concluded that a defendant can commit the offence of having a firearm in his possession at the time of being arrested for an offence, where he is lawfully arrested on reasonable suspicion of committing an offence which he has not (or is not shown to have) committed. If that is so, Miss Black submits, the subsection is draconian enough, without expanding its scope to embrace circumstances where the firearm has no physical connection to or proximity with any actual or suspected offence. She cites in support the following explanation of the subsection by the court itself in R v. Nelson (para. 13):

"In our judgment, without reference to authority, the words in section 17 appear to be clear and unambiguous. Subsection (1) is directed to the use of a firearm at the time of arrest. Subsection (2), as the judge said, is directed to the carrying of a gun, not in itself an offence, but becoming an offence if it is carried either when a scheduled offence is being committed or when someone is being arrested for a scheduled offence."

11. Whether s.17(2) is limited to "carrying" of a gun was not however in issue in R .v Nelson. The issue was whether the subsection is limited not merely to situations of lawful arrest, where reasonable grounds exist for suspecting the commission of an offence, but to situations of lawful arrest for offences actually committed by the person arrested.

12. Further, "carrying" is not a word which appears in s.17. It is however the word used in the heading to s.18 as a shorthand (itself not wholly accurate - see the reference to R. v. Kelt, below) for a different offence:

"18(1) It is an offence for a person to have with him a firearm or imitation firearm with intent to commit an indictable offence, or to resist arrest or prevent the arrest of another, in either case while he had the firearm or imitation firearm with him."

13. A linguistic distinction between offences involving a person who has "in his possession" and a person who "has with him" a firearm runs through the Firearms Act 1968. Ss. 1, 2, 4(4), 5, 5A, 8-17 and 21-23 all concern offences of having in possession. S.18, 19, 19A and 20 introduce offences only committed by a person who has "with him" the firearm. The defences provided by s.19A(2) are of interest for their distinction between cases of permission under the Act or under a firearm certificate or visitor's firearm permit "to have the pistol in his possession" and cases of authorisation "to have the pistol with him by virtue of a permit granted under section 13 of the Firearms (Amendment) Act 1997.

14. The concept of having possession has been considered in the context of s.1 of the Act in Sullivan v. Earl of Caithness [1976] 1 QB 966 and Hall v. Cotton [1976] 1 QB 504. In the former the Earl of Caithness lived in Oxford, but kept his firearms in the more secure environment of his mother's flat in Hampton Court Palace. He failed to renew his firearm certificate, and was prosecuted under s.1. His submission that the firearms were not in his possession in his mother's flat was rejected in the Divisional Court. May J said at p.970F:

"In my opinion the purpose of section 1 .... and its ancillary provisions is to regulate and license not merely those who have physical custody of firearms, or who keep them in the place in which they live, but also those who have firearms under their control at their behest, even though for one reason or another they may be kept at their country cottage, at the local shooting range or indeed at Bisley."

15. Possession was not therefore confined to "physical possession" (p.970G). The decision was followed and perhaps extended, again in the Divisional Court, in Hall v. Cotton, where the first defendant left his two shotguns at the second defendant's house while the two went on holiday together, on the understanding that (as happened) the guns would remain there for a time thereafter for the second defendant to clean them. Citing the reasoning in Sullivan v. Earl of Caithness, the court held that the first defendant had retained what it described as "proprietary possession" while the second defendant acquired "custodial possession". For present purposes, it is not necessary for us to do more than add our agreement with the reasoning and conclusion in Sullivan v. Earl of Caithness. That being the meaning of "having possession" in s.1, the natural assumption is that the legislature had the same meaning in mind when it used the same or very similar wording in later sections, which involve a series of more serious cases of possession of firearms.

16. The substantive importance of the distinction between the wording of such sections and of those sections referring to a person "having with him" a firearm has been noted in two authorities in this Court: R v. Kelt (1977) 65 CAR 74 and R v. Pawlicki and Swindell (1992) 95 CAR 246. In the first case, the court held that s.18 could not be confined to cases of "carrying" (the word used in its heading). But equally it held that "having with him" could not be equated with "having possession". Scarman LJ said in this context:

"But one thing is clear in our judgment: the legislature has drawn a distinction between a person who has a firearm with him and a person who is in possession of a firearm. .... This cannot be merely a semantic distinction, it must be a distinction of substance. The legislature must have had in mind that, in regard to those offences where it is an offence for the person to have with him a firearm, there must be a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him.

Certainly it is necessary to warn the jury, when summing up in a case under section 18, that the mere fact of possession would not be enough to establish the offence."

17. As he later he put it, it would not be enough under s.18 -

"... if all that can be shown is possession in the sense that it is in your house or in a shed or somewhere where you have ultimate control....".

18. Following this decision in R v. Pawlicki and Swindell, Steyn LJ said:

"A man who leaves a shotgun at home while he proceeds to the next town to rob a bank is still in possession of the shotgun but he does not "have it with him" when he commits the robbery at the bank."

19. In the light of these clear statements, Miss Black had to accept that, on her submissions relating to the scope and proper interpretation of s.17, the legislature must, if the linguistic scheme was intended to be consistent, have used the wrong phrase in s.17. It should have spoken of "having with him a firearm" at the time of committing or being arrested for a Schedule 1 offence. The linguistic scheme must clearly have been intended to be consistent, and it seems to us improbable that Parliament or its draughtsmen made so basic a mistake as Miss Black in effect submits in implementing the intended scheme.

20. Miss Black's arguments based on legislative purpose nonetheless call for a further word. The Schedule 1 offences cover a broad spectrum of criminal damage, personal injury or risk thereof, violence, abduction, offences against property, and offences against the police or custody officers. The added seriousness of such an offence committed with a firearm is obvious. The added seriousness of a person suspected of such an offence having a firearm with him on arrest may also be said to be obvious. But, Miss Black submits, it is not so obvious why either committing or being arrested for such an offence would be viewed as so much more serious, if the defendant has a firearm not with him, but in his possession elsewhere. A partial answer to that is that "having a firearm with him" could well be too narrow or give rise to difficulty and argument in some cases. Would a person who heard the police coming to his home, and who hid his firearm under the bed or discarded it before fleeing only to be caught and arrested two miles away "have it with him"?

21. But a more fundamental answer, as it seems to us, is that it may often be difficult to prove that a defendant actually had a firearm with him at the time of committing an offence or to know whether it played, or may have been intended to play, or would in other circumstances have played, some part in the offence or in his thinking about how to avoid apprehension. The precise time of arrest is a matter that a defendant cannot normally foresee, and a gun in his home or shed may well be one which he intends to use to evade arrest, or to which he would in other circumstances have resorted - even though he is, in the event, arrested elsewhere. For this reason, in our view, significance is attached in s.17 to any possession at the time of committing or being arrested for an offence, unless a defendant can show that he had such possession for a lawful object.

22. We add that, if someone is arrested on reasonable suspicion of a Schedule 1 offence that he has not in fact committed, then (a) he should find it correspondingly easier to prove that he had the gun for a lawful object; and (b) if he is still unable to show that he had it for a lawful object (so that his commission of an offence under s.17 might be viewed as, in one sense, fortuitous), the sentencing process will no doubt take account of his innocence of the offence for which he was arrested - as well as any conclusion that the court comes to about the actual or likely nature of his unlawful object in having possession of the firearm.

23. We conclude therefore that the distinction in the Firearms Act 1968 between "having possession" and "having a firearm with him" is a consistent distinction; and that s.17(2) is satisfied by the defendant "having possession" in the sense indicated in Sullivan v. Earl of Caithness - and does not require the Crown to go further and to show that the defendant had the firearm with him - at the time of his committing or being arrested for a Schedule 1 offence. The judge's ruling was accordingly correct, and this appeal fails.