England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18th December 2015

1. LORD JUSTICE DAVIS: Introduction
2. The appellant, Skye Case, was convicted on 18th March 2015, after a trial at Harrow Crown Court before His Honour Judge Arran and a jury, of a count of possessing a prohibited firearm and a count of possessing ammunition without a certificate. He pursues, by leave of the single judge, two grounds of appeal against conviction: both are criticisms of the summing-up of the judge and of the instructions that the judge gave to the jury. First, the appellant says that the summing-up was wrong and misleading on the issue of possession of a firearm. Second, the appellant says that the judge gave misleading instructions to the jury as to the evidence contained in the form of written admissions relating to DNA found on the firearm and ammunition.

Background facts

3. The facts, as presented on the prosecution case, were essentially in agreed form. Put very shortly, on 25th October 2013 police officers executed warrants at two addresses linked to the appellant. One of those addresses was a flat at 92 Alexandra Court in North London, a flat in respect of which the appellant held the tenancy and had the keys. On the search undertaken by the police, a hand gun was found secreted in a sock in a bag of clothing, subsequently accepted to be the appellant's clothing. The hand gun, when examined, was loaded with four rounds of ammunition. The appellant himself was arrested at his mother's house.
4. When interviewed, the appellant did not answer questions but put in a prepared statement. The judge in due course was to direct the jury that they were not to hold against the appellant the fact that he had not answered questions which had been put in interview.
5. The prepared statement was detailed. The evidence which the appellant was to give at trial substantially accorded with what was contained in the prepared statement. The prepared statement came, in effect, to this. The appellant accepted that 92 Alexandra Court was his address and that he was the tenant. He was to say that he had not been staying regularly there since May 2013 and simply stayed there odd nights. He said that since August 2013 he had not stayed a night there. It was said that the boiler at the premises had broken down and there was no heating or hot water. The evidence suggested that, when examined, the state of the flat was somewhat shambolic.
6. The appellant was to say that, in his absence, he had let various different people stay at the address for differing short periods, normally one or two nights. One of those people was a man who said he was too afraid to name. The appellant said that this man had phoned him and asked if he could stay at his address for a couple of nights on the basis that he had certain problems. The appellant gave him permission to stay; this being in, as he thought, early September. He at that time was staying at his mother's house so it was arranged for this man to come and collect the keys to Alexandra Court, which he did. He stayed at Alexandra Court for two or three days and then dropped the keys back to the appellant.
7. According to the appellant, this man told him that he had left some "stuff" at the address but he would collect it in a few days. A few days later the appellant was due to go to Alexandra Court so he phoned this man and said that he could collect the stuff he had left and take it to his mother's for the man to collect from there. However, he was told to leave it in the flat. Nevertheless, according to the appellant, when he went to collect his post he looked around for "stuff" belonging to the man but could not see anything apart from a jacket. The appellant was to say that he was becoming suspicious about what he might have left, so he phoned the man and asked him what it was that he had left. The appellant said that he was concerned that it might be drugs, and, if so, he wanted them removed. After some talking, the man told the appellant that it was a "ting". The appellant was to say that by that he knew that he meant a gun. The appellant told the man that he wanted it out of the address because his girlfriend was due back from Sweden within a couple of weeks and they wanted to go back to using the flat as their address. The man said that he would come and get it within two days; but weeks later nothing had happened and the man was not answering calls. So the appellant went to the address to search for it with a view to throwing it out, but he could not find it. He said that he was too afraid of the owner of the gun to contact the police about it so that the police could search for it.
8. The appellant, in his prepared statement and as confirmed in his evidence, was to say that the gun found at Alexandra Court was not his and also that he did not know that it had any ammunition in it. He said that he continued to ask the owner of the gun to come and remove it from his address. The last time they had discussed this was on the morning of 25th October, when he had telephoned and told the man he must come and collect it and remove it. He was to emphasise that he was "genuinely afraid" of the owner of the gun, who knew where his mother lived and where he lived. He was to say also that his girlfriend, who had the only other set of keys, knew absolutely nothing about any of this.
9. At the trial admissions were put in as agreed by both prosecution and defence. These related to the analysis made by forensic experts of the gun and the ammunition, the four bullets found in it, and also the sock in which the gun had been found. Amongst other things, the agreed admissions said this:

"2. On 28th November 2013 GIK/1 [that is, the gun] and GIK/1/A [that is, the ammunition] were sent for DNA profiling ... She found that the DNA profile of Skye Case was fully/near fully represented in each of the samples, however, also present was DNA from three/four other persons. As such, Skye Case cannot be excluded as being a potential contributor of DNA to each of those results.

3. Those results were not suitable for standard statistical evaluation (i.e. how likely it was that the DNA was Skye Case's, or that it matched by coincidence).

4. It is not possible to determine how/when the DNA in question was deposited.

5. It is possible that Skye Case has touched the revolver/ammunition at some time. It is also possible that transfer of his DNA could have occurred without him even having seen it or been in contact with the firearm through 'secondary' transfer i.e. contact with a person, object or surface which had come into contact with his DNA.

6. It is not possible to determine which type of contact is more likely than the other to leave a deposit of DNA on the gun or ammunition.

7. GIK/2 [the sock] was forensically tested for the presence of Skye Case's DNA. The sample gave DNA results for at least five contributors, the results were not suitable for a meaningful comparison.

8. No fingerprints were recovered from the firearm or the ammunition."

10. It appears that in the course of cross-examination the appellant was to state that he knew that there was a gun in the flat in the light of what he had been told.
11. The Crown case was conducted on the footing that the appellant was a principal; indeed, the Crown's case was that this other man never existed; but even if he did exist, still the appellant was guilty, indeed guilty on his own version of events.

Trial proceedings

12. During the course of trial, and both before and after speeches, the judge engaged in quite lengthy debate with counsel about the issue of possession, focusing in particular on a potential issue as to whether the appellant had effectively admitted that he had knowingly been in control of the gun. In addition, there was also debate between counsel and the judge, before the judge summed-up to the jury, on the relevance of the agreed admissions relating to the DNA.
13. On the issue of control, the judge appears, in the course of discussions with counsel in the absence of the jury, to be expressing the view that control was shown by the appellant failing to report the presence of the gun to the police. In addition, the judge in other discussions was querying the effect of the admitted facts relating to the presence of DNA on the ammunition in particular.
14. It seems that matters were never really sorted out by agreement as a result of these discussions, nor did the judge give any formal ruling on how he proposed to direct the jury on these matters.
15. In the event, when he came to sum up to the jury, the judge, amongst other things, said this on the issue of possession:

"Count 1 alleges possessing a prohibited firearm. The prosecution must make you sure of the following: firstly, that the defendant had in his possession Exhibit GIK/1 (that is the gun), in the sense that he knowingly either had it on his person - that is not the position here - or in his control; secondly, that GIK/1 is a firearm; and, thirdly, that he didn't have the authority of the Secretary of State to have it in his possession.

Now, control. Let me just say a word about what you can take into account when you are considering the question of control of the firearm. You will be entitled to take into account whether the defendant had access to the premises where we know the firearm was, and who had keys and who didn't have keys. And I have to stress this: it is not necessary, obviously, that the defendant was living in the premises. You don't have to live somewhere to have control over its contents. And of course a lot has been made about the boiler and the hot water, and so on, and you are going to have to consider whether any of that is really relevant. Secondly, you will be able to take -- you must take, or be entitled to take into account the ability of the defendant to take steps in relation to that firearm which we know was in the premises: for example, whether he had the ability to contact the police and, therefore, have some control over it in that way. Fear, as he refers to, is not a relevant consideration so far as that aspect of control is concerned. And, thirdly, control can be shared. It is not necessarily in the hands of one person alone. Those are the aspects -- at least the aspects that you can take into account in considering whether or not the defendant had control over the firearm."

16. The judge then reviewed aspects of the evidence. When he came to deal with the agreed admissions, he accurately summarised their effect. He concluded that summary by saying this:

"So the DNA evidence, whatever it means statistically, does not prove conclusively that the defendant ever touched the gun. His DNA - if it was his DNA - might have got onto the gun and the ammunition as a result of the gun and the ammunition being in contact with something which did have his DNA on. That is as far as the information goes as far as the DNA is concerned."

17. The judge then went on to review further aspects of the evidence and, amongst other things, referred to the appellant having seemingly admitted in the course of his evidence that he knew there was a gun in the flat. Having reviewed those aspects of the case, the judge then said this:

"Much has been made of what was said during the course of this prepared statement. What you are going to have to consider is whether or not it is, in fact, an admission of the offence; whether, in fact, it is an admission of knowledge and control, bearing in mind the directions I have given you about what you can take into account so far as control is concerned. So, members of the jury, even if it is a completely honest statement - the prosecution say it isn't - you are going to have to work out what it meant; whether, in fact, it establishes both knowledge and control, which is what, of course, the prosecution have to prove."

18. After the judge concluded his summing-up, the jury retired to consider their verdicts. In due course they sent in a note. According to the transcript, the judge, on receiving the note, described it as raising "the one question I was dreading". He had been asked by the note to define "control" again. The judge did so in these terms:

"'Control', members of the jury, is to be given its ordinary meaning, and it includes, obviously, the ability to take steps in relation to something, and the matters that I ask you to bear in mind is, first of all, the fact that he had access to the flat where the gun was. Secondly, you can take into account that he had a key and, therefore, controlled the premises, which he agreed, and you will have to ask yourselves who else had a key. Most importantly, you will have to consider whether or not he had the power to do anything about it; in other words, control in the sense that he had the power to make things happen to it. And the obvious issue that you are going to have to decide is the issue of whether or not he could have phoned the police, which of course he said that he did -- he could have done. But, apart from that, 'control' is simply an English word that you are going to have to use in its ordinary meaning."

19. The jury at a later stage put in a further note concerning the ammunition. That note, as the judge recited, asked: "did all the bullets have traces of the defendant's DNA?". There was discussion between the judge and counsel about that note in the absence of the jury. Mr Harrison, appearing then as now for the appellant, pressed the judge to read to the jury again what was set out in admission 5. In the event, the judge answered that particular note in the following way:

"Can I just tell you that at this stage we cannot receive any more evidence. You have to make do with what you have got. What you have got are the admissions relating to the DNA material, and all I am going to do is invite you to read that again carefully. Your understanding of it is what matters. It's probably not as complicated as it seems at first sight. Can I also give you a further direction, which is that the prosecution do not have to prove possession of all of the ammunition; any part of it will be sufficient. I don't know if that's any part of your consideration but, as a matter of law, that is the position. But as for whether or not there are traces of the defendant's DNA on all of the ammunition, well the evidence is silent on that point."

Decision on grounds of appeal

20. We think it convenient to deal first with Mr Harrison's second ground of complaint. This complaint is that, in the light of the agreed admissions relating to the expert evidence about DNA, the judge should have told the jury, particularly in the light of the note which they had submitted, that the evidence on DNA did not assist them. The presence of the appellant's DNA, if it was his DNA, was as explicable by transference as by direct contact. It is said in particular that the judge was wholly wrong to say to the jury, amongst other things, "your understanding of it is what matters", by reference to the agreed admissions. That, Mr Harrison complains, was, in effect, an invitation to the jury to speculate about issues such as direct contact and transference when there was no room for speculation: the position was no more and no less than as contained in the admissions.
21. In our judgment, there is nothing at all in this point. The agreed admissions, put in by the consent of both the prosecution and the defence, were properly before the jury. They were properly before the jury just because they were potentially relevant. The judge had summed-up those admissions entirely properly, and indeed in terms had referred in the course of his summing-up to the inconclusiveness of that evidence. His answer to the jury note is to be set in the context of what he had already told the jury in the summing-up. He was not required at that stage expressly to read out paragraph 5 of the admissions; indeed, he invited the jury to re-read all the admissions when they retired again.
22. It was not unwarranted on the part of the judge to instruct the jury with regard to the agreed admissions that "your understanding of it is what matters". That is, in effect, putting his observation in context, saying that it was for the jury to assess the evidence. It was not inviting speculation at all. The agreed facts were capable of being relevant. They were part of the overall evidence. Such admissions were not inconsistent with the prosecution case. They were also not inconsistent with the defence case. If, however, the jury were minded to think that the defendant was not otherwise telling the truth, they could properly take into account the admitted facts as not being inconsistent in any way with their initial assessment of the appellant's evidence.
23. Therefore, there is no basis for this particular ground of appeal. Mr Harrison acknowledged that, if that was so, that may have some impact upon the safety of the conviction on ground 1 and some impact of his other ground of complaint. To this we now turn.
24. On this aspect of the matter, Mr Harrison submitted that the judge's instructions to the jury on the issue of control was unsatisfactory and misleading, both in the summing-up as initially delivered and then in response to the jury note. Indeed, he submitted that the judge's instruction was, quite wrongly, tantamount to withdrawing the defence from the jury.
25. Mr Harrison's essential submission was that the judge was wrong to instruct the jury that the ability of the appellant to contact the police about the gun and his admitted failure to do so was material to the issue of control. He asserts that, given the defendant's various admissions in his statement, the judge's approach was, in effect, a direction, although not so phrased, to the jury that they should find the appellant guilty. Mr Harrison submitted that the notion of ability to control was not to be equated with actual control, and actual control was what was needed to establish liability.
26. For this purpose, Mr Harrison placed particular emphasis on the decision of the Court of Appeal in the case of Kousar [2009] 2 Cr App R 88, [2009] EWCA Crim 139. That was a case relating to "possession, custody or control" of an item for the purposes of the Trademarks Act 1994, with rather special facts. In essence, the case related to a wife's knowledge of and involvement in her husband's storage of counterfeit articles in an attic in the matrimonial home. In the course of giving the judgment of the court, David Clarke J, having reviewed certain authorities, amongst other things, said this at paragraph 16:

"... in our judgment nothing in either case lent support to the contention that 'ability to control', in the sense in which those words are used by the Crown here, is enough. Control, in the sense of ability to demand that the property be removed or ability to remove it oneself, is in fact no more than knowledge and acquiescence. That is not enough."

(As Mr Harrison would submit, so here.) Then, at paragraph 18, David Clarke J made further comments, amongst other things saying this:

"Permission may be something more than an acquiescence but even then is not in our judgment sufficient to render the permittor a person in possession of the goods. In the field of drugs offences, there is a specific offence of permitting premises to be used for certain activities but there is no equivalent in the legislation with which we are concerned. A finding of being able to exercise a measure of control, which is the basis upon which this issue was in due course left to the jury, is not the same as a finding that she did exercise control."

27. Mr Harrison cites that decision as authority for the proposition that the ability to demand that an item be removed or an ability to control is not necessarily to be equated with actual control.
28. Another decision which was drawn to our attention was the decision in the case of Jacobs [2002] EWCA Crim 610. That was a case concerning the possession of a shotgun where the appellant was a lodger in a flat. It seems that the shotgun was found under the chair on which the owner of the flat was sitting and was there at the behest of the owner of the flat. The facts thus were different from the present case. In the course of giving the judgment of the court, Collins J said this:

"The result of the learned judge's direction would be that anyone who lodged with another and knew that that other had something illicit, be it firearms or drugs or whatever, in the premises would, by the fact of that knowledge, be guilty of being in possession of that item. So what must he do? The answer would be, if this direction is correct, that he must either take the item to the police, or immediately leave the flat and find somewhere else to stay. That, in our judgment, is not and never has been the law."

A little later on, Collins J was to point out that in the circumstances of that case: "There was no evidence in the case of assistance, whether active or passive".

29. Whether a person is in possession of a firearm is ultimately a question of fact dependent on the circumstances of the particular case. In our view, while the judge's directions were not, with all respect to him, by any means a model of clarity, this issue as raised on the appeal in reality has become something of a red herring having regard to the facts of this case. The judge did not, and of course he would not, tell the jury that they had to convict the appellant. Nevertheless, the circumstances of the appellant's own case, as presented in the prepared statement and as confirmed in his evidence at trial, were entirely consistent with the appellant indeed being in possession of the firearm and having control over it. Furthermore, there was ample evidence, indeed as confirmed by the appellant in his evidence, that he knew that there was a gun in the flat; and certainly the jury had ample evidence to conclude that there was indeed such knowledge.
30. It seems to us that the circumstances here are quite different from the circumstances such as existed in the case of Kousar, and indeed the case of Jacobs. This was the appellant's flat. He was the tenant who had the keys, it being agreed that his girlfriend was quite irrelevant for this purpose. He was the one entitled to exclusive occupation of the flat. On his own admission he knew that there was a gun in the flat and he had requested, on his own case, the other man to remove it but the man never did. The appellant allowed that gun to remain in the flat over which the appellant had exclusive control for a number of weeks when he knew, on his own evidence, that there was a gun in the flat. In fact, the gun was only removed when the police raided the flat. Indeed, in many ways it could be said that this gun was as much in the appellant's custody as it was subject to his actual control.

Conclusion

31. In our view, the judge's summing-up, although not in all respects a model of clarity, sufficiently identified the relevant issues and left it to the jury to determine the issues of control and knowledge. Accordingly, we think there is overall no lack of safety in the conviction arising on this count either. In truth, this was an overwhelming case.
32. We would add just one other point. As we have said, there was one remark made in the course of the judgment in Kousar to this effect:

"Permission may be something more than an acquiescence but even then is not in our judgment sufficient to render the permittor a person in possession of the goods."

33. In our view, with all respect, that statement is not to be taken as a proposition of law of general application. All will depend on the circumstances of the case. There may well be cases where permission will render a person giving permission a possessor of the item in question: for example, if the owner of a house knowingly permits a friend who has a gun to store the gun in that owner's house, then the owner of the house may certainly be capable of being in "possession" of a firearm for the purposes of the firearms legislation. This is just one straightforward exposition of circumstances where giving of permission may indeed be capable of rendering a person liable to be prosecuted for possession of an item: even though that possession may be shared with others. Accordingly, that particular statement in Kousar is to be read with the qualification we have indicated.
34. Reverting to this particular appeal, we dismiss it. We are quite satisfied that the convictions are safe.