England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM DURHAM CROWN COURT
HIS HONOUR JUDGE HICKEY
T20147153

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/07/2015

Lord Justice Treacy :

1. This is an appeal against conviction concerned with construction of the provisions of section 39(4) of the Anti-social Behaviour Act 2003. The application for leave was referred to the Full Court by the Registrar. We grant leave.
2. On 29 April 2015 in the Crown Court at Durham the appellant pleaded guilty on rearraignment, following the judge's ruling, to possession of a prohibited weapon contrary to section 5(1)(af) of the Firearms Act 1968. The weapon in question was an air pistol, namely a Brocock .22 self-contained gas cartridge air weapon. Other counts on the indictment were adjourned pending this appeal.
3. The charge relates to 7 March 2014 when a search warrant was executed at the appellant's home. During that search the Brocock handgun was found. When interviewed the appellant said that he had legitimately acquired the handgun in the late 1990s. At that time such a firearm could be lawfully purchased over the counter in any country pursuits store. The Crown did not challenge this account put forward by the appellant.
4. At the Crown Court a preliminary point was taken, namely whether or not the applicant was strictly liable on count 1. The judge ruled against a submission made on behalf of the appellant whereupon the appellant entered a guilty plea. The grounds of appeal submit that the judge's ruling was wrong in law.
5. Section 39(3) of the Anti-social Behaviour Act 2003 amended paragraph 5(1) of the Firearms Act 1968 by inserting paragraph (af) into that section. Accordingly that section now reads by virtue of the 2003 Act:

"A person commits an offence if, without authority he has in his possession,…(af) any air rifle, air gun or air pistol which uses, or is designed or adapted for use with a self-contained gas cartridge system."

Thus this type of weapon, once that provision came into force, could no longer be possessed without the authority of the Secretary of State by reason of the amendment.

6. The prohibition on the possession of certain air weapons under section 5(1)(af) came into force on 30 April 2004: see paragraph 5(1) of the Anti-social Behaviour Act 2003 (Commencement No. 1 and Transitional Provisions) Order 2003 (2003 No. 3300). That prohibition, however, was qualified by a provision to address the position of those who had been in possession of such weapons prior to and at the time the new prohibition came into force.
7. Section 39(4) of the Anti-social Behaviour Act provides as follows:

"If at a time when subsection (3) comes into force a person has in his possession an air rife, air gun or air pistol of the kind described in section 5(1)(af) of the Firearms Act 1968 (inserted by subsection (3) above) –

(a) section 5(1) of that Act shall not prevent the person's continued possession of the air rifle, air gun or air pistol,

(b) section 1 of that Act shall apply, and

(c) a chief officer of police may not refuse to grant or renew, and may not revoke or partially revoke, a firearm certificate under Part 2 of that Act on the ground that the person does not have a good reason for having the air rifle, air gun or air pistol in his possession."

8. The appellant's argument is that reading section 39(4)(a) and (b) together, where a person was in possession of a prohibited air weapon at 30 April 2004, his continued possession of that weapon was not prohibited by section 5(1), and that section 1 of the Firearms Act which requires the obtaining of a firearm certificate applied. Accordingly a person who had been in possession of a prohibited air weapon up to the commencement date and who did not obtain a section 1 certificate would be guilty only of an offence under section 1 of the 1968 Act rather than an offence under section 5.
9. Sections 1 and 5 create separate offences, with section 5 carrying a minimum term of 5 years unless the court is of the opinion that there are exceptional circumstances justifying a departure from that term. No minimum term applies to section 1.
10. Paragraph 5(2) of the Commencement Order provides:

"Section 1(1)(a) of the Firearms Act 1968 shall not apply to a person who has in his possession any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self-contained gas cartridge system where he has applied before 30 April 2004 for a firearm certificate under Part 2 of that Act and either that application is still being processed or any appeal in respect of it has not been determined."

11. Counsel for the Crown submitted to the court below that section 39(4) only allowed continued possession of the firearm if a firearm certificate from a chief officer of police was obtained or applied for before the due date. A person in the appellant's position had two options prior to 30 April 2004: firstly he could hand the firearm over to the police; secondly he could apply for a firearm certificate. If he had done neither of those things he would be thereafter guilty of possession of a prohibited weapon contrary to section 5(1)(af).
12. The submissions made to the judge were very brief, as was his ruling. The judge in his ruling accepted the Crown's argument stating that any reference in section 39(4) to section 1 of the 1968 Act was there to explain "how a firearm could be possessed legally if a certificate was also possessed." The judge went on to say that section 39(4) only allowed continued possession if authority was given by the Secretary of State. Since the appellant neither had the permission of the Secretary of State nor had he handed the weapon over to the police or a registered firearms dealer by 30 April 2004, he was guilty of the section 5 offence.
13. Ms Kidd did not seek to sustain the judge's latter observation regarding the Secretary of State as applying to the present situation. She accepted that a person in the position of this appellant who was in possession of a prohibited air weapon prior to the commencement date could regularise his position simply by obtaining a section 1 firearm certificate from a chief officer of police. She did not contend that section 39(4) required him to obtain the authority of the Secretary of State.
14. Whilst it is clear that the legislation requires a person coming into possession of a prohibited weapon after 30 April 2004 to have not only authority from the Secretary of State but also a firearm certificate, the transitional arrangements set out in section 39(4) did not require this. The current dual requirement for an authority and a firearm certificate can be demonstrated by a consideration of the definition of firearm in section 57(1)(a) of the Firearms Act, section 1(1)(a), and by inference from the exclusionary provision in section 1(3)(b). Moreover, the provisions of section 31(1) and (2) confirm that position.
15. Counsel for the Crown has drawn our attention to the Explanatory Note to the Commencement Order which is in the following terms:

"Article 2(c)(iii) brings section 39(3) into force for certain purposes on 20 January 2004 and Article 5(1) brings that section into force on 30 April 2004 for all other purposes including possession. Section 39 adds certain air weapons using a self-contained gas cartridge system to the categories of prohibited weapons under section 5 of the Firearms Act 1968. In addition to an authority from the Secretary of State, a firearm certificate issued under Part 2 of the Firearms Act 1968 is required to possess a weapon prohibited under section 5 of that Act. (our italics)

From…30 April 2004 it will also be an offence to possess such a prohibited weapon without authority from the Secretary of State. Section 39(4) of the Anti-social Behaviour Act 2003 permits existing owners of such weapons to continue to possess their weapons without an authority provided they obtain a firearm certificate. (our italics)

Article 5(2) contains transitional provisions to allow anyone who has applied for a firearm certificate, or is appealing against the refusal of a firearm certificate, to lawfully possess their weapon pending the outcome of the application and/or appeal."

16. The first italicised passage is consistent with the Crown's acknowledgment of the judge's error referred to in paragraph 12 above. It may be that a reading of that passage misled the judge into saying what he did. The second italicised passage dealing with the transitional arrangements would appear to be consistent with the appellant's case rather than that of the Crown.
17. This Explanatory Note was drawn to the attention of the judge as was a witness statement from a firearms officer who produced a Home Office leaflet entitled "Air Gun Owners New Legislation" stating:

"Anyone (our emphasis) who is found in possession of a self-contained gas cartridge weapon on or after 30 April 2004 without it being entered on a valid firearm certificate will also commit an offence under the Firearms Act 1968 and will be liable for the same penalty." [5 year minimum]

18. Those materials are not of direct assistance to us. Our task is to construe the statute. The views of those who drafted the Explanatory Note, the Home Office document, the witness statement, or a passage in Archbold are no more than opinions on the issue which we have to determine. We have been informed by Mr Hedworth of Crown Court decisions by judges or CPS which have adopted a construction of the statute which supports his approach. Again we do not find that of assistance since we do not have the benefit of any reasoned judgment analysing the statutory language.
19. There was reference at the hearing below to the case of Mehmet (2006) 1 Cr App R (S) 75. That was a case where the appellant was appealing against a 5 year minimum sentence, having pleaded guilty to the offence of possessing a prohibited weapon under section 5(1). Like this appellant, he said he had been unaware of the change in the law. The only question before that court was whether there existed exceptional circumstances relating to the offence or the offender which would justify not imposing the minimum term. The court did not have to make any decision on the matter now before us in the light of the guilty plea. The editors of Archbold 2015 edition comment at paragraph 24-25 that the effect of subsections (4) and (5) of the 2003 Act may have been overlooked. Insofar as Mehmet was a guilty plea and thus the sole issue related to the minimum term, the point now arising was simply not in issue in these proceedings. However Mr Hedworth pointed to the passage as an indication that the editors would have sympathy with his submission. For the reasons stated above, we do not consider that either the authority cited or the comment provide assistance to us.
20. We have to consider the statutory language. We bear in mind that this is a penal statute which thus requires a degree of close construction. Whilst we accept that it was a clear purpose of the amendment to the Firearms Act to reduce the number dangerous firearms in circulation and to ensure that those already in circulation were properly regulated and licensed, the legislative intent has to be realised in the statutory language used.
21. Section 39(4) is a provision designed to cover a period of grace between 20 January 2004 and 30 April 2004 to enable owners in possession to regularise the position. Persons acquiring or purchasing such firearms were caught by the provision with effect from 20 January 2004.
22. The Commencement Order which has the effect of bringing into force the various provisions of the 2003 Act, does not change the terms of the statute. Where a person possessed the air weapon as opposed to purchasing or acquiring it, implementation of section 39(3) was postponed from January 2004 to 30 April 2004. Moreover, the provisions of paragraph 5(2) set out at paragraph 10 of this judgment represent a transitional provision disapplying the provisions of section 1 of the Firearms Act to a person possessing this sort of weapon who had applied for a firearm certificate before 30 April 2004 and whose application was pending for one reason or another. It does not qualify or contradict the provisions of section 39(4).
23. The mechanism adopted to deal with the position of those already in possession of what were to become prohibited air weapons was:

i) to permit their continued possession (subsection (a)); and

ii) to require the obtaining of a firearm certificate (subsection (b)).

24. Subsection 4 contains no requirement for the obtaining of the Secretary of State's authority, absence of which is the trigger for section 5 liability. Nonetheless, the Crown contended that if a current owner did not apply for or obtain a firearm certificate by 30 April 2004 then, to put it colloquially, all bets would be off, and section 5 would apply. We cannot discern anything in the statutory language which would lead to such a result. All that is required by reason of section 39(4)(b) is the obtaining of a firearm certificate. Failure to obtain such a certificate is a section 1 offence. The wording "section 1 of that Act shall apply" clearly suggests that failure to obtain a certificate will constitute a section 1 offence rather than a section 5 offence. In our judgment it would have required clear language to achieve the result contended for by the Crown. Such language is absent from section 39(4). It would seem anomalous that, having dispensed with the need for the authority of the Secretary of State and simply required the obtaining of a section 1 firearm certificate, Parliament would have intended failure to obtain such a certificate to amount to a section 5 offence with the consequence that the stern minimum penalty of 5 years applied. Section 39 makes no such provision, nor does it put any time limit upon the applicability of section 39(4).
25. The natural meaning of section 39(4) cannot produce the result contended for by the Crown. In our judgment the contentions of the appellant are correct. This legislation was designed to allow those in possession of such firearms to continue to hold them with a section 1 certificate. It did not have the effect of creating liability for a section 5 offence on the part of those who failed to comply within the timescale laid down. A person in the position of the appellant would be liable for a section 1 offence but not one contrary to section 5. No doubt a judge sentencing a person such as the appellant, who by now will have been in possession of a prohibited weapon for more than 10 years since the legislation came into effect, would have regard to the length of that period of non-compliance with this legislation which is designed to protect the public in assessing the offender's culpability.
26. Accordingly, we allow the appeal against conviction and give effect to that by quashing it.
27. At the hearing before us counsel agreed that if the appeal against conviction were to be allowed that the Court should order a retrial, the Crown indicating that it would include a section 1 offence of possessing a firearm without a certificate on the indictment. Mr Hedworth indicated that his client had previously offered to plead guilty to such a count but that the offer had been rejected. There was no such count on the original indictment. After the hearing members of the Court considered section 3A (power to substitute conviction of alternative offence after guilty plea), and section 7 of the Criminal Appeal Act. In addition we considered the case of Lawrence [2013] 2 Cr App R 24 and that of White [2014] 2 Cr App R 14, doubting that we could take the course agreed by counsel. Accordingly, we have drawn the matter to the attention of counsel and invited further written submissions prior to delivering this judgment, including consideration of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933.
28. The Crown having considered the position does not now invite us to order a retrial under section 7 nor does it invite us to exercise our powers under section 3A. It was pointed out that in his defence statement and subsequently in his skeleton argument to the Court below the appellant was indicating a willingness to plead guilty to a section 1 offence. At the hearing before us Mr Hedworth continued to indicate as much. Clearly that is an important matter when the interests of justice are under consideration.
29. The Crown did not invite us to exercise our powers under section 3A because that would require the Court to move to sentence, and the Crown submitted that it would be inappropriate for us to do so since there are three other counts remaining to be tried on the indictment in the Crown Court whose trial has been adjourned pending this appeal. The Crown had submitted that were it not for that fact it would be open to the Court to exercise its power under section 3A based on the indications as to plea given in the appellant's defence statement. We are doubtful that that would be sufficient to bring this appellant within the terms of section 3A, but in the event given the Crown's stance on the sentence point which we think is well-founded, do not need to decide it. Additionally the matter has not been fully argued in counsel's brief responses.
30. In the circumstances therefore we do not propose to exercise powers under section 3A or section 7. We turn next to section 2(2)(b) of the 1933 Act. We record our debt to Mr Michael Catterson of the Criminal Appeal Office who investigated the legislative history. It is apparent that this provision does not represent some free-standing power in this Court analogous to the power of a Judge of the High Court to prefer to give leave to prefer a voluntary bill of indictment. Instead, the 1933 Act was amended by one of the consequential amendments by the Criminal Appeal Act 1964 which for the first time gave the Court of Criminal Appeal statutory power to order a retrial. Accordingly, the amendment to section 2(2)(b) did not represent the creation of some additional power granted to this Court, it was merely recording the fact that this Court had been given the power to order a re-trial on a fresh indictment by the 1964 Act. It was simply adding to the list of qualifications to the broad power to prefer an indictment outlined in section 2(1). Accordingly, the provision in the 1933 Act adds nothing to this Court's powers under the Criminal Appeal Act.
31. Thus there is no further power which this Court can exercise in relation to proceeding against the appellant for a section 1 offence.
32. That is however, not the end of the matter. We observe as the Court did in Lawrence, that there does not appear to be any bar to a charge of possessing a firearm without a certificate being brought now. Equally, if there was evidence before the Court below which would have provided a basis for a section 1 charge to be included in the indictment, it may be open to the Crown to seek to persuade the Court that an amendment of that indictment to include a section 1 count would be in the interests of justice. One further possibility would be by way of application to a High Court Judge for a voluntary bill. However, we draw attention to SFO v Evans and Others [2014] EWHC 3803 (QB) where Fulford LJ reviewed the law and concluded that permission should only be given in an exceptional case. In the end, however, it must be for the Crown Prosecution Service to decide which course, if any, it wishes to take. For our part, we allow the appeal and quash the conviction.