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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Deyemi & Anor, R v [2007] EWCA Crim 2060 (13 August 2007) URL: https://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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CRIMINAL DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE PITCHFORD
and
MR JUSTICE ROYCE
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R |
Appellant |
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- and - |
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DANNY ![]() ANNIE EDWARDS |
Respondents |
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Anand Beharrylal (instructed by Registrar of Criminal Appeals) for the Appellants
Hearing dates : 5th July 2007
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Crown Copyright ©
Lord Justice Latham:
"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."
"(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;
……"
"(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; …."
"It shall not be lawful for a person to have in his possession a substance specified in the Schedule to this Act….."
"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."
"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."
"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."
"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."
"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."
"(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."
"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."
"(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."
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?"