England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM KINGSTON CROWN COURT
HER HONOUR JUDGE KENT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/06/2013

His Honour Judge Cooke:

1. On the 12^th of October 2012 at the Kingston-upon-Thames Crown Court, after pleading guilty to an offence of possessing a prohibited weapon, Nyira Lawrence ("the Applicant") was sentenced by Her Honour Judge Kent to 5 years imprisonment, the mandatory minimum. 25 days were ordered to count off that sentence pursuant to s.240 of the Criminal Justice Act, 2003.
2. The Applicant now seeks an extension of time (89 days) and leave to appeal against her conviction despite her guilty plea. This matter has been referred to the full court by the Registrar.
3. The undisputed position before us is that the shotgun that the Applicant has admitted was in her possession was not in fact a prohibited weapon, although it was one for which a firearm certificate was required. The shotgun concerned had a barrel 45.6 centimetres (18 inches) in length and an overall length of 68.4 centimetres (26 7/8 inches). To be a prohibited weapon a shotgun has to have a barrel less than 30 centimetres (11 4/5 inches) in length and/or an overall length of less than 60 centimetres (23 3/5 inches). A shotgun with a barrel less than 24 inches in length (61 centimetres) requires a firearm certificate. We mention in passing that when the Firearms Act 1968 was enacted it dealt, unsurprisingly, in terms of inches, whereas when that Act was amended in relation to prohibited weapons, in so far as is relevant to this case, in 1997, the amendment proceeded by reference to centimetres.
4. The Applicant has therefore pleaded guilty, incidentally as part of a "streamlined" process after very limited disclosure, to an offence she had not committed. That being the case the extension of time sought - necessary because of the delay before the difficulty was appreciated and placed before this Court - must be granted, leave to appeal given and the conviction quashed.
5. The Crown does not resist the quashing of the conviction for the reasons we have outlined but submits that a conviction for possessing a firearm without a certificate, contrary to s.1(1) (a) of the Firearms Act 1968, should be substituted, pursuant to this Court's powers under s. 3A of the Criminal Appeals Act 1968. That section provides:

"(1) This subsection applies on an appeal against conviction where

(a) an appellant has been convicted of an offence to which he pleaded guilty,

(b) if he had not so pleaded, he could on the indictment have pleaded, or been found, guilty of some other offence,

(c) it appears to the Court of Appeal that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of the other offence.

(2) The Court of Appeal may, instead of allowing or dismissing

the appeal, substitute for the appellant's plea of guilty a plea of guilty of the other offence and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity."

6. The indictment charging the offence of possessing a prohibited weapon did not and did not need to allege the absence of a firearm certificate. The Applicant "on the indictment" therefore could not have pleaded, or been found guilty of the offence sought to be substituted. Furthermore, whatever the overwhelming likelihood in relation to the absence of a firearm certificate, it cannot be said that "the plea of guilty indicates an admission of the other offence". The existence of a firearm certificate was irrelevant to the offence charged, not alleged in relation thereto and not admitted by the guilty plea. The substitution contended for does not in our judgement satisfy the statutory requirements. We also consider that no valid distinction can be drawn between cases where a conviction has to be quashed because it was for an offence which, for example, had been repealed, and an offence which had not as a matter of fact been committed. There is no basis for reading what a clear statutory provision with such a gloss is. That it might be convenient to do so in this instance is irrelevant. The simple test here is – could the Applicant have been convicted of the offence sought to be substituted on the indictment to which she pleaded? Yes or no. The answer is no.
7. In this case the Applicant had in fact originally been charged with possessing a prohibited weapon and possessing a shotgun without a certificate. Had the latter charge been included in the indictment that would have meant that the requirement under s. 3A (1) (b), (but not under s. 3A (1) (c)) would have been satisfied, albeit in relation to a charge of possessing a shotgun without a certificate contrary to s.2(1) of the Firearms Act 1968, rather than the appropriate charge, having regard to the length of the barrel of this shotgun as it is now known to be, of possessing a firearm without a certificate, contrary to s.1(1) (a) of the Firearms Act 1968. However a count reflecting either lesser charge was not included in the indictment.
8. The Crown raises a further argument. It is submitted that "the indictment" in s. 3A of the Criminal Appeals Act 1968 should be construed as meaning "the indictment in a potentially amended form". We do not consider that such an argument is sustainable. It is inconsistent with the approach taken in R. v. Graham and others [1997] 1 Cr App R 302 C.A. It also needs to be remembered that the ability to substitute a conviction under s. 3A of the Criminal Appeal Act 1968 represents a limited exception to the fundamental rule that a defendant can only be convicted on his own plea or as a result of proof before a jury. Such a provision has to be construed strictly. In our view the operation of the provision must be confined to cases where the guilty plea inevitably involves an admission to the alternative offence, which was not the case here. Any other approach involves this court evaluating whether or not there might be a defence. That is not permissible given the importance of the right to a jury trial. Furthermore, on the particular facts of this case, at the time of the guilty plea, there could have been no amendment as required because no evidence had been served proving the want of a certificate. To proceed on the basis that that did not matter would tend towards reversing the burden of proof.
9. We therefore consider that the conviction cannot stand and that substitution is not possible. In that event the crown submits that this matter should be remitted for a retrial. As for that the position is governed by s. 7 of the Criminal Appeals Act 1968 which provides:

"(1) Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.

(2)  A person shall not under this section be ordered to be retried for any offence other than

(a) the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in subsection (1) above;

(b) an offence of which he could have been convicted at the original trial on an indictment for the first mentioned offence; or

(c) an offence charged in an alternative count of the indictment in respect of the indictment in respect of which no verdict was given in consequence of his being convicted of the first mentioned offence."

The offence of possessing a firearm without a certificate, upon which the Crown, in reality, now wants a trial does not fall within any of the subsections of s.7 (2) of the Criminal Appeals Act 1968. Although there may be less justification for a strict construction in relation to s. 7 of the Criminal Appeals Act 1968, because it is not concerned with substituting a conviction, the language is clear and it is impossible to read s.7 (2) (a), (b) or (c) as including "or any other offence which might be included in the indictment by amendment if further evidence were to be served". So to read the provision would be to render the detail of s.7 (2) wholly redundant.

The only offence that can be remitted for a retrial is that of possessing a prohibited weapon. Proceeding in that way has its practical attractions but the question arises – a retrial of what? There can be no conviction in relation to that offence. When that is the position ordering a retrial is inappropriate. Whereas there may well be an amendment of an indictment in a case which has been sent back for a retrial, the requirements of s.7 of the Criminal Appeals Act 1968 having been met, this Court cannot order a retrial on a count where it is clear that there cannot be a conviction in order to circumvent the requirements of s.7 (2) of the Criminal Appeals Act 1968, i.e. the very provision which gives this Court the power to order a retrial at all.

10. We therefore grant the extension of time, give leave to appeal and quash the conviction. As we made clear to the parties when this matter was argued, there does not appear to be any bar to a charge of possessing a firearm without a certificate being brought now and it does not appear that there ever has been. This case serves to highlight that in relation to "streamlined" procedures directed at encouraging early guilty pleas it is important that all involved are alert to check that the necessary elements of what will sometimes be relatively specific offences are in fact provable.