England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE PILL: This is an appeal by way of Case Stated from convictions entered by the Justices for Tunbridge Wells and Cranbrook on 7th July 1997. Informations had been laid against Mr John Castle, the Appellant:

2. Three other informations were laid against the appellant relating to the same date and the same premises. The other three informations refer respectively to an air rifle Diana, series 70, model 78, an air rifle No. TX200 and an air rifle Wehraugh No HW77.

3. The only issue in the case is whether any of the weapons were lethal weapons. That term is defined in section 57(1) of the 1968 Act:

4. The meaning of the word "lethal" as it appeared in earlier legislation was considered by this court in Moore and Gooderham [1960] 1 WLR 1308. Lord Parker CJ stated at 1310:

5. The Justices found the following facts:

6. The Justices then set out the contentions of the parties. They included the contention now made on behalf of the appellant that the evidence did not establish that the weapons concerned were "lethal" within the meaning of section 57(1). The Justices expressed these opinions:

7. The question posed for the opinion of this court is:

8. On behalf of the Appellant, Mr Hall submits that the Justices were not entitled upon the evidence to make the findings of fact they did. The relevant evidence came in the form of a section 9 statement which the parties agreed could be placed before the Magistrates, the statement of Mr Lowe. I read a part of that statement because of the submission that its contents did not entitle the Justices to make the finding that the air guns were lethal weapons. Mr Lowe worked for Chris Potter Guns and stated that he was employed as a sales assistant and was responsible for advising customers and for the sale of firearms and accessories. He identified the rifles concerned and stated that he had tested each of them in the testing area under the shop. He found in each case that the weapon operated as normal and discharged the pellet as normal. He stated that there were no relevant modifications to the rifles. He added:

9. In submitting that there was insufficient evidence to justify a finding that the weapons were lethal, Mr Hall relies on the decision of this court in Grace v. DPP [1989] Crim LR 365. In that case no evidence had been given as to the testing of the rifles concerned. The court consisting of Mann LJ and Auld J quashed convictions. The report does not identify who gave the leading judgment but it appears from the case comment included in the review that it was given by Auld J.

10. There was no evidence in that case that the weapon had been fired, or as to whether it worked, or was capable of being made to work. No tests were carried out on the weapon in court. Auld J referred to the case of Moore v. Gooderham [1960] 1 WLR 1308 stating that it did not establish, as a matter of law, that an air gun as a species of weapon is a lethal weapon for the purposes of section 57. It is not submitted in the present case by Mr Nelson, on behalf of the Prosecution, that there is any such proposition of law. Auld LJ continued:

11. In this case Mr Hall does not challenge that there was sufficient evidence that the rifles were working normally. All that established, he submitted, was that they fired normally. It does not establish the capacity of the weapon so as to permit a finding that the weapon was lethal. Such a finding was, upon the evidence, an impermissible inference. There was no evidence, he submits, to show that the weapon, when fired, was lethal. He submits that it follows, from the decision of this court in Grace, that there must either be expert evidence as to the lethal capacity of the weapon or there must be evidence of the effect of the weapon when fired and that neither is present in this case. Mr Hall relies upon the principle in Hipson [1969] Crim LR 85 that one cannot read more into section 9 statements than appears in them. There is no duty upon the defendant to cross-examine; it is for the prosecution to establish by the statement, if that is the method of proof chosen, that the offence is committed.

12. Mr Hall further submits that the evidence of Mr Lowe, following the test he conducted, was insufficiently precise to justify the inference made. He relies on a statement of Waterhouse J, giving the judgment of the Court of Appeal, Criminal Division in R. v. Hill (1993) 96 Cr App R 456. The issue in that case was whether the prosecution had established that the substance involved in the case was the drug mentioned in the charge. Waterhouse J stated at page 460:

13. Mr Hall makes the further submission that the evidence of Mr Lowe was an expert report within the meaning of section 30 of the Criminal Justice Act 1988 and no leave had been given as was required by section 30(2) to render it admissible. There is no need to make a finding as to whether the evidence did indeed come within the definition of expert report because, in my view, even if it did, the leave contemplated by the section does not involve a court formally pronouncing that leave is granted. Where a section 9 statement is referred to and read by the court, with the consent of the defence, leave can readily and, in the present circumstances, necessarily be implied.

14. Mr Hall submits that the Justices were not entitled to make the findings of fact at (v) and (vi) or, even if they were, to infer from them that the rifles were lethal barrelled weapons within the meaning of the section 57(1). He relies on the fact that there is no express evidence as to the effect of the rifles when fired and the recommendation of Mr Lowe as to their use is insufficient evidence to justify a finding that the rifles were lethal. He does accept that the designation of a rifle as a target rifle does involve a finding that it is capable of firing a pellet a substantial distance, the sort of distance which might be present on a target firing range. There is no evidence, he submits, as to the effect the pellet would have either upon the target or any intervening object or upon the vermin against which he recommended the use of two of the rifles.

15. I am unable to accept those submissions. In my judgment, the Justices were entitled to reach the conclusions they did on the evidence before them. They were entitled to do that in the absence of specific evidence as to the effect of firing a pellet from these specific rifles. There was evidence that the rifles were fired and were operating normally as air rifles. It is against that background and, having regard to his employment, that Mr Lowe made the recommendation that they were suitable for use as target rifles and field hunting rifles for shooting small vermin respectively. Upon that evidence, the Justices were entitled to conclude, as they did, that an air rifle which was both capable of killing small vermin, or making an impression on a target could cause injury from which death might result if fired at point blank range at a vulnerable point of the body. Mr Lowe knew that the rifles were designed for that purpose. There was unchallenged evidence that he would sell them for that purpose. In those circumstances, there does not, in my judgment, have to be evidence of the observed effect upon a target or upon an animal to establish that the rifles were lethal within the meaning of the section.

16. I doubt whether Auld J in Grace was attempting to provide a comprehensive definition as to the evidence which was necessary to establish that a weapon was lethal. It could be established in the ways indicated by this court in Grace, but there are other ways in which the offence can be proved and, in my judgment, it was sufficiently proved upon the evidence of Mr Lowe in this case. Indeed, I would go further and say that a court need not and should not shut its eyes to its knowledge of the characteristics of a commonplace article such as an air rifle. Evidence that an air rifle was working normally and was suitable and recommended for the purposes stated by Mr Lowe's amply justifies, in my judgment, an inference that the rifles were lethal.

17. For those reasons, I would answer the question posed by the Justices in the affirmative and dismiss this appeal.

18. MR JUSTICE GAGE: I agree. The unchallenged evidence in this case was that the air rifles, the subject of the informations, had been tested and were working normally. The person who tested the air rifles went on to say that he would recommend two of them for use as target rifles and two for use as field hunting rifles as those two were of slightly higher power and more suited to shooting small vermin. Having received that unchallenged evidence, the Magistrates concluded that an air rifle which was capable of killing small vermin or making an impression on a target could cause injury from which death might result if fired at point blank range at a vulnerable part of the body. They went on:

19. In my judgment, they were quite entitled, on the evidence that they had heard, to reach that conclusion. I, too, would answer the question in the way in which my Lord proposes.

20. MR NELSON: My Lord, the respondent has been put to costs in this application.

21. MR HALL: My Lord, the Defendant is an unemployed man who is legally aided. So far as costs are concerned, can I ask for legal aid taxation of his costs.

22. LORD JUSTICE PILL: What do you say, Mr Nelson?

23. MR NELSON: My Lord, of course costs can only be awarded where a defendant has the means or the appellant has the means to pay them. However, costs normally follow the event and we are here at the instigation of the appellant.

24. LORD JUSTICE PILL: Are you seeking an order not to be enforced without the leave of the court?

25. LORD JUSTICE PILL: The Respondent will have his costs not to be enforced without the leave of the court and the appellant will have a legal aid taxation.