England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 7 June 2006

1. LORD JUSTICE MOSES: This is a reference by the Criminal Cases Review Commission in relation to a plea of guilty by this appellant to an offence of carrying an imitation firearm with intent to commit an indictable offence, contrary to section 18 of the Firearms Act 1968 ("the 1968 Act"). The appellant pleaded guilty to that offence and to an offence of robbery on 12 July 1999 at Lewes Crown Court. Because of the nature of the offence of carrying an imitation firearm with intent to commit an indictable offence, this had a draconian effect on the sentence which was passed in relation to the robbery offence because the judge was compelled to sentence him to a period of imprisonment for life, pursuant to section 2 of the Crime (Sentences) Act 1997. He specified the period of two years, pursuant to section 28 of the Crime (Sentences) Act 1997, and passed two and a half years' imprisonment concurrently for the offence of carrying an imitation firearm with intent under count 2.
2. We mention those facts because we ought to record that, although this appellant had a somewhat dispiriting career as a criminal, affected as he was by alcoholism, we now learn that he is at liberty (although of course subject to license) and has done well in a manner that merits congratulation. But, of course, these proceedings are of importance to him since he remains subject to the life sentence.
3. There had been a series of appeals, a refusal of leave to appeal, an application granted and an appeal dismissed back in 1999 and 2000. But this reference arises out of a more recent decision, namely that of the House of Lords in R v Bentham [2005] UKHL 18. The issue in this appeal is whether a bottle, which the Crown alleged and the appellant admitted was hidden in a plastic bag, had been held in such a way as to give an appearance of a firearm within the meaning of section 18 of the 1960 Act, read with the definition sections (sections 57(1) and (4)).
4. The facts are that this appellant committed a robbery at a supermarket in Lewes in March 1999, at about 4.15 in the morning. He approached a hatch holding a white plastic carrier bag and tapped on the window. The lady behind the counter recognised the appellant and opened the hatch to serve him. He asked for two bottles of vodka. He was told that alcohol would not be served because of the hour, and again he asked for alcohol. He then told the shop assistant that he had a gun. She moved away from the hatch and asked a male assistant to call the police. The appellant, according to her, tapped the plastic bag on the hatch and it made a metallic sound.
5. Her evidence in a statement, untested of course in cross-examination because the appellant pleaded guilty, was that although she did not see the appellant's left hand and did not see the item he was holding, he appeared to be holding a long straight item, with his left hand, inside the carrier bag. The only other evidence relevant to the appearance of that bottle within the bag was the appellant's own admission when he was arrested at his home address. He had been given a bottle of whisky and had left the premises that night. He was still drunk the following day, but he admitted that what he had done was wrong and said that he had pretended that he had a gun inside the bag, but it was in fact a bottle, and he handed over a bottle to the police.
6. He pleaded guilty to robbery and, as we have said, to this offence. The question then arises as to whether he was guilty of an offence pursuant to section 18 of the 1968 Act. Section 18(1) of the 1968 Act provides:

"It is an offence for a person to have with him a firearm or imitation firearm with intent to commit an indictable offence ... while he has a firearm or imitation firearm with him."

7. Section 57(1) provides:

"... "firearm" is a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes-

(a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not ..."

8. Section 57(4) is of key importance in this appeal. It defines "imitation firearm" as follows:

"Anything which has the appearance of being a firearm, whether or not it is capable of discharging any shot, bullet or other missile."

9. There is no difference between the definition of "firearm" and "imitation firearm" either under section 17(2) or section 18 of the 1968 Act. That is of significance because the case which led to this reference, namely Bentham, was a case concerning section 17(2). Section 17(2) prohibits the possession of an imitation firearm. Section 18 is more limited. It does not refer to possession, but rather to the narrower concept of having a firearm or imitation firearm with him, a concept connoting greater propinquity than possession. But, as we have said, the definition remains the same. The question is therefore whether the reasoning of the House of Lords in Bentham has anything to do with this case.
10. In that case, a defendant held his hand inside a zipped-up jacket, forcing the material out so as to give the impression that he had a gun. The House of Lords concluded that a hand or fingers were not things which it is possible to possess. What is possessed must be a thing (see paragraph 8 of the leading speech of Lord Bingham of Cornhill). Fingers and hands are part of the body and cannot be possessed. One does not own one own's limbs, said Lord Rodger, in Latin.
11. In our judgment, this decision of the House of Lords has nothing to do with this case. The statute, as well as the decision of the House of Lords in Bentham, are authority for the proposition that a defendant must be proved to have with him a thing which, absent a plea of guilty, the jury is sure has the appearance of a lethal barrelled weapon of any description. In the instant appeal, the appellant admitted he had a "thing" with him, namely a bottle, independent of his own body. Whether it had the appearance of a firearm was a question of fact to be judged not by the words he used, but by the appearance of the thing.
12. There was no warrant, in our judgment, for the suggestion of Mr Harounoff, on behalf of this appellant, that the thing had to be adapted or altered to be made to look like a firearm, like the metal pipes bound together, in R v Morris and King [1984] 79 Cr App R 104. A stick or table leg within a bag might have the appearance of a firearm. The question of whether the jury is persuaded that the thing a defendant has with him has the appearance of a firearm is to be determined on all the evidence, including the evidence of witnesses at the time. But their evidence, whilst it is material in order to illustrate to the jury what appearance the thing had at the time, is not dispositive. It is a matter for a jury, on the evidence, to judge what appearance the thing had at the material time.
13. Mr Harounoff contended that the decision of this court in Morris and King (q.v. supra), following, as it did, the decision of this court in Debreli [1964] Crim LR 53, was no longer good law. He submitted that what was required by the statute was that it was proved that a defendant had with him, with the necessary intent, what Mr Harounoff described as a replica firearm. The difficulty with that submission is that it finds no basis in the language of the statute.
14. In Morris and King the Court of Appeal concluded that the question was:

"Does the thing look like a firearm? ... In the view of this court, the material time for the jury to consider is the time when the accused actually had the thing with him ... In considering whether or not the thing looked like a firearm at that time, the jury are entitled to have regard to the evidence of any witnesses who actually saw the thing at the time, together with their own observations of the thing itself, if they have seen it, which in this case the jury did and there was also a reconstruction of the incident."

15. In our judgment, the decision of the House of Lords in Bentham leaves those propositions entirely unaffected. They still amount to good law. The essential question for a jury is whether the prosecution has made them sure that the thing carried by the defendant has the appearance of a firearm as defined in section 57(1).
16. We do not rule out as being irrelevant the words used or other pretence adopted by a defendant to demonstrate to the victim that he is indeed carrying a firearm as being inadmissible. They may, in certain circumstances, be admissible to lend force to the proposition that the thing itself did have the appearance of a firearm. But caution must be exercised and a jury must be warned that it is not the words used or actions of the appellant in pretending that he has a firearm that they must focus upon, but rather on what appearance the thing he is carrying actually had at the material time. That is the crucial question.
17. In the instant appeal there was of course no judgment by the jury because this appellant pleaded guilty. But since the decision in Bentham was not in existence, he must have pleaded guilty, advised as he was by counsel, on the basis of the law as apparent in the plain words of the statute, coupled with the relevant authorities, in particular Morris and King. In other words, he admitted that that which he carried and the way in which he carried it within the bag had the appearance of a firearm. There is, in our judgment, no basis for allowing him, merely because of the happenstance of the decision of Bentham in relation to parts of the body, to allow him another go in raising the issue as to whether the bottle inside the bag did in fact have the appearance of a firearm.
18. In those circumstances, we find that there is no basis for upsetting this conviction, based as it was on his own admission, and this appeal is dismissed.
19. MR HAROUNOFF: My Lord, I took the liberty of drafting a question overnight.
20. LORD JUSTICE MOSES: Thank you very much. We will read it. Is there anything you want to add?
21. MR HAROUNOFF: No, my Lord.
22. LORD JUSTICE MOSES: No, we will not certify. Thank you both very much indeed for your very helpful written arguments and your oral argument as well, Mr Harounoff.