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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/2060.html
Cite as: [2008] 1 Cr App Rep 25, [2007] EWCA Crim 2060, [2008] 1 Cr App R 25

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Neutral Citation Number: [2007] EWCA Crim 2060
Case No: 2006/3566 C2 & 2006/3567 C2

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
13/08/2007

B e f o r e :

LORD JUSTICE LATHAM
MR JUSTICE PITCHFORD
and
MR JUSTICE ROYCE

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Between:
R
Appellant
- and -

DANNY DEYEMI
ANNIE EDWARDS
Respondents

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(Transcript of the Handed Down Judgment of
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____________________

Justin Bearman (instructed by CPS Harrow (at Collindale)) for the Prosecution
Anand Beharrylal (instructed by Registrar of Criminal Appeals) for the Appellants
Hearing dates : 5th July 2007

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HTML VERSION OF JUDGMENT
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Crown Copyright ©

    Lord Justice Latham:

  1. On the 8th June 2006 the appellants pleaded guilty to a single count of possessing a prohibited weapon contrary to Section 5(1)(b) of the Firearms Act 1968. They did so following a ruling by the judge to the effect that the offence was one of strict liability. The position was that the appellants had been stopped and searched. An electrical stun-gun was found, that is a weapon discharging electricity through electrodes. In it was positioned a lens and a bulb. The appellants' account was that they believed it to be a torch. Having heard them give evidence in a "Newton" hearing, the judge, though stating that to her it did not look like a torch and looked like a pretty nasty weapon, found that the appellants did not know that it was a stun gun. She accordingly sentenced each of them to a conditional discharge for a period of twelve months.
  2. The judge's ruling was in the following terms:
  3. "Although it does offend one's sense of justice to exclude mens rea from an offence so a defendant can be guilty of being in possession of something when he knows he is in possession, if it is a prohibited article, albeit he thinks it is something different, and that view is not unreasonable, having regard to its appearance and usage. I am satisfied that that is the state of affairs Parliament intended to create in making the offence one of strict liability, and I so find."
  4. Mr Beharrylal, in his clear and helpful skeleton argument and submissions, accepts that the relevant statutory provisions, have, so far, been interpreted by the courts so as to impose what has been described as strict liability. He submits, however, that these authorities are not, when analysed, entirely satisfactory. As a result, he submits, this court should now revisit the proper interpretation of the section bearing in mind, in particular, what he describes as a change in legal climate represented by the cases of B –v- Director of Public Prosecution [2000] 2 AC 428; R –v- K [2001] 3 All ER 897; and R –v- G [2004] 1AC 1034. Further, he submits, both Articles 6 and 7 of the European Convention on Human Rights support the proposition that the relevant statutory provision should not be read so as to impose strict liability.
  5. On behalf of the respondent, it is submitted that there is no reason to go behind the extant authorities on the meaning of the section in question. The decisions of this court are clear and are binding. The European Convention on Human Rights has no relevance in this context in determining the content of domestic law which has been clearly established by the courts. There is a clear and justifiable social purpose in imposing strict liability in relation to offences involving firearms.
  6. The starting point must be the relevant statutory provisions themselves. Although the offence with which we are concerned is an offence under section 5 of the Firearms Act 1968 (the 1968 Act) it is necessary to set out the terms of section 1, which has been the subject matter of a number of the relevant authorities.
  7. Section 1 provides so far as is relevant;
  8. "(1) Subject to any exemption under this Act, it is an offence for a person –
    (a) to have in his possession or to purchase or acquire, a firearm to which this section applies without holding a firearms certificate in force at the time, or otherwise than as authorised by a certificate;
    ……"
  9. Section 5 provides, so far as is relevant:
  10. "(1) A person commits an offence if, without the authority of the Defence Council …. he has in his possession ……. -
    (b) any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing; …."
  11. The offences described in section 1(1) and 5(1) are accordingly defined by reference to "possession" of the prohibited articles. They have clear analogies therefore, with offences in relation to drugs. And the authorities to which we will have to refer in relation to the 1968 Act, made reference one way or another to the decision of the House of Lords in Warner –v- Metropolitan Police Commissioner [1969] 2 AC 256 which was a decision in relation to section 1 of the Drugs (Prevention of Misuse) Act 1964. Section 1 of that Act provided:
  12. "It shall not be lawful for a person to have in his possession a substance specified in the Schedule to this Act….."
  13. The decision in Warner (supra) has been the subject of much criticism and in his commentary to R –v- Steele [1993] Crim L. R. page 298 at page 300 Sir John Smith said:
  14. "The snag is that the citation of Warner will continue to plague the courts unless and until someone in authority is bold enough to declare it dead."
  15. The reason for the difficulty in determining for what propositions Warner 9supra)can be authorative is that although the head note asserts that, Lord Reid dissenting, the offence was "absolute" it was only absolute in the sense that the prosecution merely had to prove possession of the relevant drug. Their Lordships were not ad idem about the meaning to be ascribed to the word "possession". Hence the difficulties to which we will have to return.
  16. In Howells (1977) 65 Cr App R 86, the appellant was charged with possessing a firearm in respect of which he had no firearms certificate, contrary section 1(1) of the 1968 Act. His defence was that he honestly believed when he bought the firearm in question that it was an antique, which he possessed merely as a curiosity or ornament, and accordingly was exempt from the need to obtain a certificate pursuant to the provisions of section 58(2) of the 1968 Act. This court held, applying Warner (supra) that even if he honestly and reasonably believed that it was a genuine antique, he had custody and control of the article and was therefore in possession of it for the purposes of the 1968 Act.
  17. In Hussain (1981) 72 Cr. App R 143 the appellant was charged, again under section 1 (1) of the 1968 Act, with possessing an 8" metal tube with a striker pin activated by a spring capable of firing .32 cartridges. The judge directed the jury that if they found that this item was a firearm as defined by section 57 (1) of the 1968 Act, he was guilty of the offence even though he did not know it was a firearm. He was convicted. This court upheld the conviction, again relying on Warner (supra) on the basis that the appellant knowingly had in his possession an article which was in fact a firearm. Accordingly he was guilty of the offence.
  18. This approach has been applied consistently by this court since Hussain (supra). In Bradish (1990) 90 Cr App R 271, where the appellant was found with a canister which contained CS Gas, this court held that it could have been no defence for the appellant to maintain that he did not know or could not reasonably have been expected to know that the canister contained CS Gas. In Waller [1991] Crim LR 381, the appellant was found with a sawn off shot-gun which was in a black plastic bag. His defence was that he did not know what was in the bag, but thought it might have been a crow-bar. The judge directed the jury that it was not necessary to prove that the appellant knew what was in the black plastic bag. This court dismissed the appeal on the basis that public policy behind the fire arms legislation was to impose rigorous control, and in the absence of express provision in the 1968 Act allowing consideration of a defendant's state of mind, there was no room for a defence of "innocent possession". In Steele (supra) to which we have already referred in paragraph 9 above, this court refused leave to appeal against conviction. The defendant had been found in possession of a holdall in which there was a sawn-off shot-gun. His account was that he had only been given the holdall a few minutes before the arrival of the police and had had no time to examine or become aware of its contents. The court considered that it was bound by the authorities to which we have so far referred to hold that that provided him with no defence.
  19. Mr Beharrylal, however, submits that there is one authority which opens up the possibility of a defence in circumstances such as the present. That is the decision of this court in Vann & Davis [1996] Crim LR 52. The appellant had been convicted of an offence under section 19 of the 1968 Act, of having with her a firearm in a public place. She was arrested at an airport where she was meeting a man carrying cocaine. As she was led away, she threw away a handbag in which was found a loaded pistol. Her case was that two men had given her a parcel two days previously. She knew it was in her handbag but did not know what it was. When she was arrested, she was asked whether she was armed, and immediately thought that the parcel might contain a firearm which is why she threw it away. The judge summed up on the basis that the section created an absolute offence and her knowledge or lack of knowledge as to whether the article was a gun was irrelevant as a matter of law. Unfortunately, we do not have a transcript of the judgment, but the report in the Criminal Law Review indicates that there had been wide ranging argument over the true meaning of Warner (supra), in particular as explained in McNamara (1988) 87 Cr. App. R 246. The question arose as to whether or not Warner, as so explained, entitled a defendant to take advantage of what has been described as a "half-way house", namely the opportunity in certain circumstances for a defendant to assert that although he or she was physically in possession of the object, he or she was ignorant of its nature. Having noted that the authorities to which we have already referred had all rejected the idea that such a "half way house" was available, the court concluded, as reported at page 54:
  20. "In the instant case the prosecution discharged that burden of proof by showing that she had the gun with her in the present case physically in her possession, and that she was aware that she had had it, even if she was ignorant of the fact that it was a gun. The case was to be distinguished from other cases in which it might be said that the defendants had a genuine belief that the article was something other than a firearm; or where the defendant had no opportunity of discovering what the article was."
  21. In the present case, Mr Beharrylal submits that the appellants had both asserted that they believed the object, which was undoubtedly, as an object, in their possession, was a torch; and the judge was prepared to accept their assertion for the purposes of sentence. He submits, accordingly, that there was material which in accordance with what the court said in Vann & Davis (supra) should have been left to a jury to determine. In order to evaluate the submission, it is necessary to return to Warner (supra), bearing in mind always the comments of Sir John Smith.
  22. The fundamental difficulty, as we have already noted in paragraph 10 above is the lack of agreement between their Lordships as to the way in which the concept of "possession" should be approached. The specific question with which we are concerned is the extent to which lack of knowledge of the nature of the object which is said to be possessed provides a defence. In McNamara (supra) the Lord Chief Justice said as follows:
  23. "Since the passing of the 1971 Act, the House of Lords, in Warner (supra)…. tackled this question. Unhappily it is not altogether easy to extract from the speeches of the Lordships the ratio decidendi but doing the best we can, and appreciating that we may not have done full justice to the speeches, the following propositions seem to us to emerge.
    First of all a man does not have possession of something which has been put in his pocket or into his house without his knowledge. In other words something which is "planted" on him, to use the current vulgarism. Secondly, a mere mistake as to the quality of a thing under the defendant's control is not enough to prevent him from being in possession. For instance, if a man is in possession of heroin, believing it to be cannabis or believing it perhaps to be asprin.
    Thirdly, if the defendant believes that the thing is of a wholly different nature from that which in fact it is, then the result, to use the words of Lord Pearce, would be otherwise. Fourthly, in the case of a container or a box, the defendant's possession of the box leads to the strong inference that he is in possession of the contents or whatsoever it is inside the box. But if the contents are quite different in kind from what he believed, he is not in possession of it."
  24. This explanation of the decision in Warner (supra) would appear to be the likely basis of the part of the decision in Vann and Davis (supra) to which we have referred. But there is a real difficulty in taking Lord Lane's third category too far. It was based upon a single sentence at page 305F of Warner (supra) where Lord Pearce said as follows:
  25. "I think the term "possession" is satisfied by a knowledge only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general understanding of the word "possess". Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets. This would be so I think even if I believed them to be sweets. It would be otherwise if I believed them to be something of a wholly different nature."
  26. It is the latter sentence which creates the difficulty. Lord Wilberforce said, in this context, at page 3.11D:
  27. "On the same basis, the actual decision of the Court of Criminal Appeal in Lockyer –v- Gibb [1967] 2 QB 243 was, I think correct: there the accused had and knew she had control of the tablets but possibly did not know what they were; she was held to be in possession of them. One can only hold this decision to be wrong if the view is taken that to constitute possession under this legislation knowledge not merely of the presence of the thing is required but also knowledge of its attributes or qualities. But (except in perhaps under the old law of larceny) no definition or theory of possession requires so much, nor does the language or scheme of the Act postulate that such a degree of knowledge should exist."
  28. There is no doubt that both Lord Morris of Borth-y-Gest and Lord Guest were of the view that all the prosecution had to prove was that the defendant had the object in question physically in his or her possession even if unaware that it was a prohibited object.
  29. The position in relation to the drugs legislation was complicated by the fact that by the time of the decision in McNamara (supra) the Misuse of Drugs Act 1971 had been passed which provided for a statutory defence in section 28, undoubtedly stimulated by the decision in Warner (supra). This section provides for two defences where a person is charged under section 5 of the 1971 Act (the successor to Section 1 of the Drugs (Prevention and Misuse Act) 1964. Section 28 provides, so far as is material;
  30. "(2) Subject to subsection (3) below in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.
    (3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to pick some substance or product involved in the alleged offence was a controlled drug the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused – (a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or the product in question was the particular controlled drug alleged; but (b) shall be acquitted thereof – (i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or (ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description such as that, if it had in fact been a controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies."
  31. It is clear that the combined effect of these two subsections is to enable a defendant, inter alia in circumstances such as those with which we are concerned under the 1968 Act, to obtain an acquittal in cases of what might be called, very generally, "innocent" possession. The premise, however, must be that in the absence of such a defence, the offence is proved. In other words "innocent" possession remains possession for the purposes of Section 5 of the 1971 Act. This is made clear in R –v- Lambert [2002] 2 AC 545. The appellant had been charged under section 5(3) of the 1971 Act with having been found in possession of a bag containing the relevant drug. His defence was that he had neither known nor suspected nor had reason to suspect the nature of the contents of the bag. He was convicted. He argued that pursuant to the Human Rights Act 1998 the requirement to establish the defence on the balance of probabilities conflicted with the presumption of innocence guaranteed by Article 6(2) of the European Convention on Human Rights.
  32. The case is cited usually in support of the majority view that the provisions of the Convention did not apply to events which occurred prior to the passing of the 1998 Act. But the relevance for us is the fact that the Appellate Committee, in spite of concluding that the Convention did not apply, nonetheless considered in some detail the effect of Article 6 on the proper construction of the defence in section 28 and of the decision of their Lordships in B –v- Director of Public Prosecutions (supra). The clear majority view was that section 5 of the Misuse of Drugs Act created an "absolute" offence, requiring the prosecution to prove merely possession of the prohibited substance, subject to the defence under section 28 which would be compliant with Article 6 of the European Convention on Human Rights if read down to impose an evidential, as opposed to a legal, or persuasive, burden on the defendant. Parliament having therefore made it plain that the prosecution merely had to prove possession under section 5, there was no room for the implication of mens rea beyond that necessary to establish that possession, so that B –v- Director of Public Prosecutions (supra) had no relevance to the case.
  33. The problem that we have to grapple with is, however, that there is no equivalent of section 28 in the 1968 Act. We have therefore to determine the meaning that Parliament intended in the context of the 1968 Act alone. We start from the proposition, that prima facie, it would appear that Parliament intended to impose a draconian prohibition on the possession of firearms for the obvious social purpose of controlling dangerous weapons. This court in Bradish (supra) considered in some detail the state of authorities up to 1990. At the end of the careful analysis which one would expect, Auld J said as follows at page 279:
  34. "We start with the presumption of interpretation that Parliament intends there to be a mental element in offences of a truly criminal nature. However that presumption may be rebutted, and it is conceded on behalf of the appellant that it is rebutted, in the case of an offence under section 5 to the extent that all the prosecution have to do is prove that an accused knowingly had in his possession an article which is in fact a prohibited weapon. The only issue is whether, if the prosecution prove that, it is a defence for an accused to show on a balance of probabilities that he did not know and could not have been expected to know that the article was a prohibited weapon.
    The justification for the concession on behalf of the appellant, which we agree has been properly made, that the offence created by section 5 is one of strict liability, at least in the absence of a defence of ignorance, may be summarised as follows:
    First, the words of the section themselves, "a person commits an offence if, without …. authority …. he has in his possession …." any firearm, weapon or ammunition of the type defined, makes it plain that it is an offence of strict ordinary liability.
    Secondly, the comparable words and structure of section 1 of the 1968 Act have been held by this Court in Howells (supra) and Hussain (supra) to create an offence of strict liability.
    Thirdly, the clear purpose of the firearms legislation is to impose a tight control on the use of highly dangerous weapons. To achieve effective control and to prevent the potentially disastrous consequences of their misuse, strict liability is necessary, just as it is in the equally dangerous field of drugs. See per Lord Guest in Warner at page 301 (supra). Given that section 1 has been held to create an offence of strict liability, this consideration applies a fortiori to section 5, which is concerned with more serious weapons, such as automatic hand guns and machine guns, and imposes a higher maximum penalty.
    On the question of whether the approach adopted by certain of their Lordships in Warner (supra) applies to a "container" case under section 5, and presumably section 1 too of the 1968 Act, so as to enable an accused to raise a defence that he did not know what was in the container, we are of the view that it does not. We say that for the following reasons:
    First, whilst neither Howells (supra) nor Hussain (supra) was a "container case", the Court of Appeal in each case adopted the much stricter line of Lord Morris in Warner than the "half-way house" of Lords Pearce, Reid and Wilberforce. See Howells (supra) per Browne LJ at pages 91 and 92; and Hussain per Eveleigh J at page 145.
    Secondly, as noted by Browne LJ in Howells (supra), there are a number of provisions creating offences in the 1968 Act where there is specific reference to the accused's state of mind as an ingredient of the offence or express provision of a defence where the accused can show that he did not have a particular state of mind. Neither section 1 nor section 5 is so drafted.
    Thirdly, the scheme of the firearms legislation of specifically providing where intended a defence based on the absence of a particular state of mind has been continued in the Firearms Act 1982. Section 1 of that Act subjects imitation firearms to the control of the 1968 Act, but provides in sub-section (5) that it is a defence for the accused to show that he did not know and had no reason to suspect that the imitation firearm was constructed or adapted so as to be readily convertible into a firearm which section 1 of the 1968 Act applies.
    Fourthly, no provision corresponding to section 28(3) of the Misuse of Drugs Act 1971 has been introduced to the firearms legislation so as to import the Warner (supra) halfway house concept into offences aimed at controlling the possession or use of firearms. In particular, the recent comprehensive extension of that control in the Firearms (Amendment) Act 1988 contains no such provision in relation to offences under section 1 or 5 of the 1968 Act.
    Fifthly, the possibilities and consequences of evasion would be too great for effective control, even if the burden of proving lack of guilty knowledge were to be on the accused. The difficulty of enforcement, when presented with such an defence would be particularly difficult where there was a prosecution of a component part of a firearm or a prohibited weapon as provided for by sections 1 and 5 when read with section 57(1) of the 1968 Act. It would be easy for an accused to maintain, lyingly but with conviction, that he did not recognise the object in his possession as part of a firearm or prohibited weapon. To the argument that the innocent possessor or carrier of firearms or prohibited weapons or parts of them is at risk of unfair conviction under there provisions, there has to be balanced the important public policy behind the legislation of protecting the public from the misuse of such dangerous weapons. Just as the Chicago-style gangster might plausibly maintain that he believed his violin case to contain a violin, not a sub-machine gun, so it might be difficult to meet a London lout's assertion that he did not know an unmarked plastic bottle in his possession contained ammonia rather that something to drink.
    Accordingly, we are of the view that, whether or not this case is regarded as a "container" case, even if the canister had not been clearly marked "Force 10 Super Magnum CS". This was an absolute offence and it would have been no defence for an appellant to maintain that he did not know or could not reasonably have been expected to know that the canister contained C.S. gas."
  35. We consider that that exposition of the effect of the provisions of sections 1 and 5 of the 1968 Act is binding authority, subject to any possible effect of Article 6 and 7 of the European Convention on Human Rights. The prosecution, in order to establish the offence, merely has to prove possession of the object in question, and the fact that the object is a firearm or other weapon prohibited by the 1968 Act; it does not have to prove that the defendant either knew or could have known it was a weapon prohibited by the 1968 Act. In so far as the decision in Vanan and Davis (supra) seeks to suggest that a defendant may have a defence if he did not know the "nature" of the object, we consider that it went too far. It was not, in any event part of the ratio decidendi of that case. It is based on the slender foundation of the obiter exposition of the effect of Warner (supra) by Lord Lane CJ in McNamara (supra) which itself was based upon one short passage in Lord Pearce's speech. As Auld J said in Bradish (supra) the Court's approach to "possession" under the 1968 Act, has been to take the more restrictive view of Lord Morris and Lord Guest, and has rejected the "half-way house" of which the "nature" concept clearly forms part. In any event, that concept produces real logical difficulties, as its context in Lord Pearce's speech demonstrates. Sweets seem to us to be of a different nature from heroin; but according to Lord Pearce believing that the heroin tablets were sweets would not provide a defence.
  36. So far as the appellant seeks to rely on B –v- Director of Public Prosecutions (supra), R –v- K (supra) and R –v- G (supra), we consider that our conclusion as to the binding effect of Bradish (supra) means, at least in this court, that those decisions do not assist. Each of them is concerned with the proper meaning to be attributed to the statutory provisions in question; the statutory provisions with which we are concerned have been construed by decisions binding on us. The sole question which remains, therefore, is whether the appellants can get assistance from the provisions of Articles 6 and 7 of the European Convention on Human Rights. This, in our view, depends upon the extent to which an offence of strict liability, which we have held section 5 to create, could be said to infringe, in particular Article 6.2 of the convention, namely that "everyone charged with a criminal offence shall be presumed innocent till proved guilty according to law."
  37. This provision was considered by this court in G –v- R and SSHD [2006] EWCA Crim 821. The court, presided over by the Lord Chief Justice there considered in some detail the effect of Article 6 and in particular its interpretation by the European Court of Human Rights in Salabiaku (supra) –v- France [1998] 13 EHRR 379. At paragraph 31 of the judgment, the court distilled the principles to be deduced from Salabiaku as follows.
  38. "(i) A provision of law imposing strict liability will not infringe Article 6.1 or 6.2.
    (ii) An evidential presumption that a criminal offence has been committed may infringe Article 6.1 or Article 6.2.
    (iii) An evidential assumption is more likely to infringe Article 6.11 and 6.2 if it is irrebuttable than if it is inrebutteable."
  39. The court concluded therefore that legislation which created an absolute offence was not, in itself, capable of infringing Article 6.1 or 6.2. Article 6 does not guarantee any particular content of civil rights. It has nothing to say about the content of the law creating an offence. It is however, capable of affecting any evidential presumptions, or statutory defences; see for example Lambert (supra) and Attorney Generals Reference (No 4 of 2004) [2005] 1AC 264. Article 7 does not, in our view, add anything, in this context, to Article 6.
  40. It follows that, in our judgment, section 5 of the 1968 Act imposes an "absolute" offence in the way we have described; the judge's ruling was accordingly correct. This appeal is dismissed.
  41. POST JUDGMENT DISCUSSION

    (As Approved by the Court)

    1. THE VICE PRESIDENT: Mr Ross and Mr Bearman, you are both here.

    2. MR ROSS: Mr Bearman cannot appear today and sends his apologies.

    3. THE VICE PRESIDENT: As we have indicated, we dismiss the appeal for the reasons set out in the judgment we now hand down. We propose to certify the question requested by the appellants but refuse leave. Is there anything that either of you would have to say in relation to that?

    4. MR ROSS: Only one matter, and that is an application, my Lord, for an extension of the representation order for solicitor and junior counsel, so far as pursuing leave to the House of Lords and were leave to be granted for senior counsel.

    5. THE VICE PRESIDENT: For a leader QC. Certainly, that will be granted.

    The question to be certified is as follows:

    "Does Section 5(1) of the Firearms Act 1968 create a strict liability offence, following the decision of the House of Lords in B (A Minor) v DPP [2000] 2 AC 428, and consequently does such a strict liability interpretation and the resulting procedure contravene Articles 6 and/or 7 of the European Convention on Human Rights?"


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