England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		26 November 2008

Wednesday 26 November 2008

THE LORD CHIEF JUSTICE:

1. On 28 February 2008 the jury at Wood Green Crown Court in a trial presided over by His Honour Judge Winstanley delivered its verdicts on a seven count indictment against these three appellants. A fourth man, Joseph Gunning Senior (the senior conveniently to distinguish him from Joseph Gunning Junior) was acquitted on all counts. The counts and verdicts were: count 1, possessing a firearm with intent to endanger life, not guilty; count 2, possessing a prohibited firearm, guilty; count 3, possessing a firearm with intent to endanger life, not guilty; count 4, possessing a firearm without a certificate, guilty; count 5, possessing ammunition with intent to endanger life, not guilty; count 6, possessing a firearm without a certificate, guilty; and count 7, possessing ammunition, guilty. On count 8, Powell alone was found not guilty of possession of heroin with intent to supply.
2. The use of the word "firearm" in that brief summary of the indictment is liable to mislead. This was what can only be described as an arsenal of firearms: very dangerous lethal firearms in factory or mint condition, and with ammunition of the same quality. There were 26 handguns in all; the barrels were shorter than 30 centimetres and a length of less than 60 centimetres. They were all prohibited lethal-barrelled weapons. Included in them were 17 Ruger handguns, eleven of which could be fired by pulling the trigger alone, and the other six of which required the hammer to be cocked and the trigger pulled. The serial number of each of the revolvers had been removed. All the ammunition was live and suitable for use in a wide range of firearms. It included a total of 700 rounds of .357 Magnum ammunition designed to expand on impact (known colloquially as "dum dum bullets"). That ammunition could have been used in the 17 Ruger handguns. There were 300 rounds of 9mm Parabellum, 150 rounds of .45 Auto and 149 rounds of .38 Special Calibre ammunition. The .38 ammunition could also have been used in the handguns. The 9mm ammunition was suitable for use in Beretta pistols, and the .45 ammunition could be used in the four Ruger handguns. There were four silencers which are themselves firearms for the purposes of the Firearms Act.
3. The jury's verdicts on counts 1, 3 and 5 were reached on the basis that the Crown had failed to prove that the appellants were in possession of these firearms with intent to danger life, but, as we understand the way in which the case was left to them, the jury had to be sure before they could convict that the defendants knew that the boxes to which we shall refer shortly in this judgment, contained firearms. If the jury was not sure of actual knowledge, they had to acquit.
4. In due course, on 19 May 2008, each of the appellants was sentenced in the same way: on count 2, five years' imprisonment; on counts 4 and 6, four years' imprisonment; and on count 7, five years' imprisonment, all those sentences to run concurrently. Appropriate orders were made for forfeiture and destruction. All three appellants now appeal against sentence.
5. The facts can be summarised in very brief form. On the afternoon of 26 January 2007 police officers were keeping watch on a van which was parked in a car park at a retail park in Enfield. The van had arrived at about 2.30-3.00 in the afternoon and there it remained for some considerable time. It was a work van for which Havill was responsible. It had no business to be in Enfield. It should never have been removed from the borough in London at which he worked. The tracking device on the van was disabled. It was he who had driven the van to the car park. He was accompanied by Gunning Junior in the passenger seat. They remained in the car pack for two to three hours. Shortly after 5.30pm the van drove away from the car park and went to a petrol station. It returned to the car park at about 6pm.
6. In the meantime a Vauxhall Astra car had been driven into the same car park. When the van driven by Havill returned, he parked next to the Vauxhall Astra. Powell, who had driven the Astra to the car park, and Gunning Junior were seen to alight from their respective vehicles. The rear doors of both vehicles were opened and four medium-sized, closed cardboard boxes were transferred from the Astra into the van. Gunning Junior closed the van's doors and he got into it. Powell got into his car. Havill's van then drove away. Police officers stopped that vehicle before it left the car park. Powell was arrested while still in the car park. The guns and ammunition which we have set out earlier in this judgment were found.
7. When interviewed, the appellants all denied any knowledge of the contents of the box.
8. The jury returned verdicts which the judge was bound to accept and to reflect in his sentencing decision. As he put it in his sentencing remarks:

"I must and I do respect those verdicts of the jury. The jury were not sure, I take it from their verdicts of acquittal, that you knew firearms were in the cardboard boxes".

Having acknowledged the primacy of the jury's verdict, the judge went on to record that he did not believe his respect for the jury's verdict meant that he was obliged to accept "all the detail" of what the appellants had advanced in their cases to the jury. He then summarised the case of each of the appellants and concluded:

"You all deliberately closed your eyes, did not want to know what the nature of what it was that you would be collecting or delivering....

.... I am sure that you all realised that there was a risk that what you were collecting or delivering might in some way be illegal. ... I am sure that all three of you had deliberately ensured that you did not know what was in the boxes and that for a few pounds you were prepared to take part in the distribution chain of what may turn out to be highly illegal or dangerous articles ....

.... in my judgment, those in possession, as it turns out, of these dangerous items cannot and do not escape criminal [liability] by turning a blind eye to the circumstances of what they choose to involve themselves in ....

.... I am sure .... that you knew there was significant risk that you were engaged in some criminal behaviour and, in those circumstances, I am quite sure that it is right to impose deterrent sentences."

9. It is clear that each of the three appellants went to the scene in order to be paid a substantial sum of money by making himself available to provide transport. As it turned out, on the jury's verdict, the appellants did not know that the material they were being asked to transport consisted of this arsenal. However, the reality is that each of the appellants was trusted by those responsible for the delivery of the guns, and by those who hoped to take delivery of the guns, to be circumspect and not to check on the goods. Indeed, if any one of them had bothered to check on the goods, those responsible for the delivery and the collection of the guns could trust them nevertheless neither to hand them to the police nor to inform the police, but to continue with their transportation. So it was that these weapons were taken to a pre-arranged destination and there transferred to another vehicle, which was the next vehicle in the transportation system.
10. Our attention has been drawn to section 51A of the Firearms Act 1968, as amended by section 287 of the Criminal Justice Act 2003, which applies to offences committed on or after 22 January 2004. The judge took the view that this provision applied to the decision which he had to make. It provides:

"(1) The section applies where --

(a) an individual is convicted of -- [one of the offences of which the appellants were convicted. If so]

(2) The court shall impose an appropriate custodial sentence [which is defined for the purpose of the Act as five years' imprisonment in the case of an adult] .... unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so."

11. It was argued in the course of written submissions, and developed succinctly and clearly in oral submissions before us, that the exceptional circumstances envisaged by the Act did arise here. They arose because the appellants did not know that they were in possession of firearms. If that was so, any deterrent element in the sentence addressed by this section was not needed. However, it may be that in any particular case, for example the possession of one out-of-date firearm without appropriate ammunition for it, the imperative when this section is being examined is that the court must consider whether exceptional circumstances have arisen in the context of the whole of the facts of the particular case.
12. The judge here took the view that even if the appellants did not know that they were dealing with this arsenal of firearms, that was because they had deliberately closed their eyes to it. It was a finding he was fully entitled to make; it did not in any way amount to any form of disloyalty to the verdicts of the jury.
13. The short answer to this appeal is simple. If the appellants had known (in the sense which the jury acquitted them) that what they were carrying was truly an arsenal of firearms, a sentence of five years' imprisonment would have been wholly inadequate. It should be remembered that the five year term for the purposes of section 51A is the minimum required term. Without suggesting that this could or would be a test of general application we have asked ourselves whether, irrespective of the statute, this sentence in the circumstances outlined by the judge and in relation to the jury's verdict was manifestly excessive or wrong in principle. Although the appellants had no defence in law to the counts in the indictment of which they were eventually convicted by the jury, the judge was satisfied that they had nevertheless persisted with their "not guilty" pleas in the hope that something might fortuitously turn up to their advantage. There could therefore be no discount for a guilty plea; the case proceeded as a trial. Given what it was that the appellants allowed themselves to become involved in carrying and the fact that they had "turned a blind eye" to what it was they were involved in, in our judgment a sentence of five years' imprisonment, irrespective of the statute, was not in any sense too long. In any event we take the view that the exceptional circumstances envisaged by the statute did not arise in the context of this case and so, whether we approach the matter through the statute or simply stand back from the sentence, in neither situation does the possibility of a manifestly excessive sentence arise. In our judgment these sentences were amply justified. There is no basis therefore for reducing them.
14. There is a further footnote to this judgment. In the case of one of the appellants, material was put before us which may, if drawn to the attention of the prison authorities, amount to compassionate grounds. We do not express any further views. It is for the authorities to decide whether compassionate grounds are established. The appropriate place for those issues to be raised is not with us in the course of today's appeal but with the prison authorities. For that purpose, Mr Campbell, the letter that you have shown to us will be returned to you.

MR CAMPBELL: My Lord, I am very grateful.