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Cite as: [2001] NICA 21

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Clinton, R v. [2001] NICA 21 (25 April 2001)

Judgment: approved by the Court for handing down
(subject to editorial corrections)









1. The appellant was tried before His Honour Judge Brady QC, sitting without a jury at Belfast Crown Court, on an indictment containing three counts:

  1. possession of a firearm and ammunition in suspicious circumstances, contrary to Article 23 of the Firearms (Northern Ireland) Order 1981;
  2. possession of a firearm without a firearm certificate, contrary to Article 3(1)( a) of the 1981 Order;
  3. possession of ammunition without a firearm certificate, contrary to Article 3(1)( b) of the 1981 Order.

2. On 13 March 2000 the judge found the appellant not guilty on count 1, but convicted him on counts 2 and 3, and imposed a sentence of two years’ imprisonment concurrent on each count, suspended for three years.

Factual Background

3. On the evening of 26 January 1998 shortly before 11 pm a party of police carried out a planned search of the appellant’s house at 17 Hawthorn View, Belfast, to which they had to make a forced entry when the people inside the house failed to admit them. In the master bedroom an officer found a black sock under one of the pillows on the bed. Inside the sock was a .22 Beretta pistol, with a magazine attached containing nine rounds of ammunition. In the living room police found a cardboard box, containing a tin of WD40 oil. There were a sheet of bubble wrap and pieces of polystyrene of the type used for packing on the floor beside the box. On the floor nearby were found a black woollen hat or balaclava, a ball of used sticky tape and a pair of thin rubber surgical type gloves, turned inside out.

4. The appellant ran from the house when the police arrived and hid in a dog kennel at the rear. He was discovered there by police, and when asked why he was there said that he thought that the “Prods” were coming to get him. In one pocket he was found to have another rubber glove.

5. The appellant was arrested and taken to Castlereagh Police Office, where he was interviewed by police. At an early stage he said that he would make a written statement, which he did in his own hand. In the statement he gave his account of why he had the gun, which has not varied essentially since then. The statement read:

“After a number of warnings by the RUC that my life was in danger I began to worry about my personal security. Then in 1994 my wife was murdered in our living room. She was shot 23 times. My concerns grew greatly so I applied for a personal weapon to protect myself and my family. This request was turned down. I then moved house a number of times finally settling in Hawthorn View with my new partner whose husband was also shot dead. A long time ago I tried to get a weapon to protect myself but forgot about it when the killings stopped. Recently when the murders started again I asked again to have a weapon posted to me. This was done and I went and collected it last night (26-1-98) at about 9.30 pm. I drove to our house at Hawthorn View went inside and took the parcel to my bedroom where I opened the box. No-one else knew that I was getting the weapon and I did not want my family to be afraid, that was why I opened it in the bedroom. Inside I found a 22 mm pistol and I gave it a rub down with WD40 as there was bits of rust on it. I then wrapped it in two socks and put it under my pillow as that was where it was to be kept in case of an attack by Loyalists. I then took the wrapping downstairs to put in the bin and sat down to watch the TV. Then I heard the door being smashed in and I ran out the back and hid in the dog box as I thought it was a Loyalist death squad. The police then came and arrested me. This weapon was for the defence of myself, my partner and our children. It belonged to me and not to any paramilitary group. I have no regrets about trying to protect my family with this weapon.”

6. He gave basically the same account in response to questions in interviews on 27 January 1998, then declined to answer any further questions until the conclusion of the interviews.

7. In his evidence at trial the appellant gave substantially the same account. He said that prior to the shooting of his wife he had been a Sinn Fein candidate in the City Council elections. He had received two warnings from the police relating to his personal security, to the effect that a document containing his name and address had gone missing and that his name appeared on a document found during the search of the house of a person suspected of being a member of the UVF. He then lived in Balfour Avenue, in the lower Ormeau Road area. He moved house a number of times after his wife’s murder and in 1999 applied for a licence for a firearm, but this was refused by the police. The appellant said that he telephoned someone in America, whom he would not name, and arranged for a gun to be sent to him. He had told the police in interview that he paid the sum of $200 for the weapon, but admitted in his evidence that that was untrue and that he did not pay for it. It was sent to 112 Balfour Avenue, which he still owned and which was let to a tenant. He still had some mail sent there and collected it regularly.

8. It was agreed by Detective Sergeant Gibbons in evidence that in the period immediately before the arrest of the appellant a number of murders of Catholics had taken place, apparently carried out by Loyalist paramilitaries.

9. The trial judge in his written judgment discussed the evidence and the leading authorities. He rehearsed at some length the evidence relating to the threats to the appellant’s life, but made no mention of the facts which might tend to throw doubt on the proposition that the appellant had acquired the gun for that reason. He concluded then:

“Having considered the evidence, particularly the evidence of the police, I am satisfied in relation to count 1, that the accused James Patrick Martin Clinton had the gun and ammunition in his possession for a lawful object, namely, the protection of himself and his family. I therefore find the accused Not Guilty to count 1”.

10. The judge then proceeded without any further discussion to hold the appellant guilty on counts 2 and 3.

Possession of Firearms and Ammunition

11. The relevant provisions of the 1981 Order are as follows:

3.-(1) Subject to any exemption under this Order, a person who –
( a) has in his possession, or purchases or acquires, a firearm without holding a firearm certificate in force at the time, or otherwise than as authorised by such a certificate; or
( b) has in his possession, or purchases or acquires, any ammunition without holding a firearm certificate in force at the time, or otherwise than as authorised by such a certificate, or in quantities in excess of those so authorised.
shall be guilty of an offence.
23 . Without prejudice to any other provision of this Order, a person who has in his possession any firearm or any ammunition under such circumstances as to give rise to a reasonable suspicion that he does not have it in his possession for a lawful object shall, unless he can show that he had it in his possession for a lawful object, be guilty of an offence.”

12. Article 23 accordingly provides for a specific statutory defence, in which the onus of proof is on the defendant, as distinct from common law defences such as self-defence which, once sufficiently raised, have to be ruled out beyond reasonable doubt by the prosecution. Article 3, on the other hand, does not provide for such a defence, and the conclusion to be drawn from the contrast between these provisions is that it is not available to the defendant and liability was intended to be absolute.

13. The relationship between two similar provisions was considered in R v Fegan [1972] NI 80. The defendant was convicted of possession of explosive substances, viz a pistol and ammunition, under section 4 of the Explosive Substances Act 1883, which is comparable in its terms with Article 23 of the 1981 Order. He was also convicted of possession of the pistol and ammunition without holding a firearm certificate, under the predecessor section to Article 3 of the 1981 Order. The conviction under section 4 was set aside for misdirection. Lord MacDermott LCJ, giving the judgment of the Court of Appeal, held at page 87 that there was a case to go to the jury on the issue whether the defendant was in possession for a lawful object. He also held that he could consistently be guilty of possession without a certificate, because a firearm in lawful possession could be possessed for an unlawful object and vice versa. Lord MacDermott went on to say at page 88:

“The threatened danger must be reasonably and genuinely anticipated, must appear reasonably imminent, and must be of a nature which could not reasonably be met by more pacific means. A lawful object in this particular field therefore falls within a strictly limited category and cannot be such as to justify going beyond what the law may allow in meeting the situation of danger which the possessor of the firearm reasonably and genuinely apprehends. One does not, for example, possess a firearm for a lawful object if the true purpose is merely to stop threats or insults or the like.”

R v Fegan was followed in England in Attorney-General’s Reference (No 2 of 1983) [1984] QB 456, in which Lord Lane CJ said:
“He may still arm himself for his own protection, if the exigency arises, although in so doing he may commit other offences. That he may be guilty of other offences will avoid the risk of anarchy contemplated by the reference. It is also to be noted that although a person may ‘make’ a petrol bomb with a lawful object, nevertheless if he remains in possession of it after the threat has passed which made his object lawful, it may cease to be so. It will only be very rarely that circumstances will exist where the manufacture or possession of petrol bombs can be for a lawful object.”

14. These two decisions were criticised in Smith & Hogan, Criminal Law, 9th ed, pages 261-2. The learned author says at page 261 that to say “He may do it -- but he will commit an offence if he does” seems inconsistent. At page 262 he suggests that –

“where contravention of any law is (i) necessary to enable the right of public or private defence to be exercised, and (ii) reasonable in the circumstances, it ought to be excused. It is open to the courts to move in this direction.”

Duress of Circumstances

15. Mr Donaldson QC for the appellant contended that in view of the finding that he was in possession of the firearm and ammunition for a lawful purpose, the defence of himself and his family, he ought to be relieved of liability under Article 3 for possession without a firearms certificate. He submitted that this could be achieved by the application of the doctrine of duress of circumstances, which has emerged in the case-law since the decisions in R v Fegan and Attorney-General’s Reference (No 2 of 1983).

16. This defence appears to be an acceptance pro tanto of the defence of necessity, which, although recognised in some other common law jurisdictions, has not found a firm place in our law: see the discussion by Woolf LJ in R v Conway [1989] QB 290 at 297. As Smith & Hogan state, op cit , page 242, the recognition of the defence “occurred more or less by accident”, and its extent is still in the process of definition. It was applied first in road traffic cases, where drivers charged with road traffic offences averred that they were faced with the necessity of breaking the law rather than suffer some apprehended consequence of a serious nature: see R v Willer (1986) 83 Cr App R 225; R v Conway, supra.

In R v Martin [1989] 1 All ER 652 the trial judge ruled that the defendant could not plead a defence of necessity which he wished to advance to a charge of driving while disqualified. He advanced the case that his wife had suicidal tendencies and had previously attempted to take her own life. On the day in question her son, the defendant’s stepson, had overslept so long that he was bound to be late for work and, it was asserted, at risk of losing his job unless the appellant drove him to work. The defendant’s wife was distraught and threatening suicide unless the defendant took out his car and drove his stepson to work, despite his disqualification. The Court of Appeal regarded the defendant’s story with a considerable degree of scepticism, but held that he should have been entitled to advance the defence before the jury.

17. Simon Brown J, giving the judgment of the court, stated at pages 653-4:

“The principles may be summarised thus: first, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure on the accused’s will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called ‘duress of circumstances’.

18. Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.

19. Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; second, if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was Yes, then the jury would acquit; the defence of necessity would have been established.”

20. When invoked in respect of offences in which the actus reus consists of a single specific act, the principle is relatively straightforward to apply. It is obviously more difficult to apply it to cases involving continuing acts such as possession of firearms. Those difficulties became apparent when the Court of Appeal dealt with such a case in R v Pommell [1995] 2 Cr App R 607. Police officers went to the appellant’s address and found him lying in bed with a sub-machine gun in his hand, loaded with a magazine containing 23 rounds of ammunition. In the bedroom there was a holdall containing 32 more rounds of ammunition. He told them that during the night he had persuaded someone to give him the gun in order to prevent that person from shooting some people who had killed a friend. He said that he intended to wait until morning to give the gun to his brother to hand in to the police. He was charged with possession of the firearm, contrary to section 5(1)(a) of the Firearms Act 1968 and possession of 55 rounds of ammunition without a firearms certificate, contrary to section 1(1)(b) of the same Act. The judge ruled that his failure to go to the police immediately deprived him of the defence of necessity. The Court of Appeal held that the defence of necessity, although flimsy on the facts, was open to the appellant and should have been left to the jury.

21. In giving the judgment of the court Kennedy LJ acknowledged the attraction in the argument that if a person takes a gun away from another to prevent him from committing a crime, he should not be guilty of an offence. He regarded it as unsatisfactory to leave it to the prosecuting authority not to prosecute in such cases, or to the courts to grant an absolute discharge. It was to meet this difficulty that the limited defence of duress of circumstances had been developed. Kennedy LJ noted that the previous cases had all been concerned with driving offences, but agreed with the opinion expressed by Sir John Smith ([1992] Crim LR 176) that in principle the defence of duress by circumstances should be available in all crimes except murder, attempted murder and some forms of treason. He expressed his conclusion at page 615 as follows:

“That leads us to the conclusion that in the present case the defence was open to the appellant in respect of his acquisition of the gun. The jury would have to be directed to determine the two questions identified in the passage which we have cited from the judgment in Martin. That leaves the question as to his continued possession of the gun thereafter. In our judgment, the test laid down in Martin is not necessarily the appropriate test for determining whether a person continues to have a defence available to him. For example, a person takes a gun off another in the circumstances in which this appellant says he did and then locks it away in a safe with a view to safeguarding it while the police are informed. When the gun is in the safe, the test laid down in Martin may not be satisfied: there would then be no immediate fear of death or serious injury. In our judgment, a person who has taken possession of a gun in circumstances where he has the defence of duress by circumstances must ‘desist from committing the crime as soon as he reasonably can’ (Smith and Hogan, Criminal Law (7th ed.) p. 239).”

22. The court accordingly set aside the conviction on both counts and ordered a retrial.

23. It may be noted that, in contrast with Article 23 of the Firearms (Northern Ireland) Order 1981 and section 4(1) of the Explosive Substances Act 1883, section 5(1)(a) of the Firearms Act 1968 does not provide for any defence whereby the defendant can prove that he was in possession of the firearm for a lawful purpose. Unless the defence of duress of circumstances were open to a defendant who had a sufficient reason for being in possession of the weapon, accordingly, the offence would be absolute and he would have to be found guilty.

24. The need for the defence in a case brought under Article 23 of the 1981 Order is rather less, since the defendant can put forward the statutory defence that he had the firearm or ammunition in his possession for a lawful object. We do not consider, however, that the existence of the statutory defence means that the defence of duress of circumstances cannot also be available to the defendant in an appropriate case. The difficulties in applying and limiting the extent of that defence are readily apparent from the discussion in the concluding part of the judgment in R v Pommell of the requirement that the defendant must “desist from committing the crime as soon as he can”. In the present case the essence of the defence put forward under Article 23 was that the appellant‘s need to have the weapon in his possession was a continuing one, rather than a temporary exigency brought about by an emergency. It accordingly seems to us that on the facts of this case the requirements of duress of circumstances as a defence to a charge under Article 23 would not have been met, even though the appellant succeeded in relying upon the statutory defence.

25. Although the offence of possession of firearms or ammunition without holding a firearm certificate under Article 3 of the 1981 Order is one of absolute liability, we would nevertheless regard it as open to a defendant to rely upon the defence of duress of circumstances. We consider, however, that its application must be limited to cases such as those described by Lord Widgery CJ in Evans v Hughes (1972) 56 Cr App R 813 at 817, where the possessor of the firearm or ammunition is in anticipation of imminent attack and is carrying it for his own personal defence.

26. The Divisional Court held in that case that “some constant or enduring supposed or actual threat or danger to the carrier” did not suffice to furnish a reasonable excuse for carrying an offensive weapon. In our opinion a similar principle governs the application of the defence of duress of circumstances to a case of possession of a firearm or ammunition without a certificate. If the defence were not so limited, the whole system of firearms licences could be stultified. As Edmund Davies LJ remarked in Southwark London Borough v Williams [1971] Ch 734 at 746, “necessity can very easily become simply a mask of anarchy”.

27. In the present case the judge did not consider the possibility that the defence of duress of circumstances might apply, and to that extent he was in error. On the facts of the case, however, we do not consider that a reasonable tribunal could have concluded that it was available to the appellant. He had determined to obtain a firearm and ammunition, although the police had refused his requests for a certificate. When he obtained them, there was not any imminent threat or danger to him or his family. At most it could be said that he obtained and kept them in anticipation of a possible future attack. We therefore consider that the appellant could not have successfully relied upon the defence of duress of circumstances.

The Impact of the Convention

28. It was then argued on behalf of the appellant that the effect of section 3 of the Human Rights Act 1998 is to require the court to allow a defence such as duress of circumstances to operate to relieve the appellant of liability. Section 3 provides that legislation must be read and given effect to in a way which is compatible with the Convention rights. It was submitted that by virtue of Article 2(1) of the Convention the appellant was entitled to have the protection of the law in defending himself against a threat to his life. If he were liable to be convicted of possession of a firearm without a certificate, when he acquired it to protect himself against a real threat to his life, this would detract from the effectiveness of the protection given him by the statutory defence under Article 23. The court should accordingly decline to interpret the 1981 Order in such a way as to exclude the defence of duress of circumstances, certainly in respect of charges under Article 3.

29. The contrary argument put forward on behalf of the Crown was that the licensing system afforded a sufficient protection to the individual against risk to his life. If there were a threat to his life of such a nature that he needed to possess a firearm for the protection of himself and his family, he could apply to the police for a firearm certificate, and if he had a proper case he would receive one. To allow the individual in effect to decide for himself whether circumstances justified his possessing a firearm – which would be the result if a defence of duress by circumstances were available – would impose a disproportionate burden on the authorities in their task of keeping control of firearms.

30. We are of course conscious of the importance attached to the right to life under Article 2 of the Convention, but we consider that it falls within the “discretionary area of judgment”, as Lord Hope of Craighead termed it in R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326 at 381, to require citizens to obtain licences before they possess firearms. We are extremely well aware from the experience in this Province over the last thirty years of the harm that can be caused to society by the possession and use of firearms, and we consider that the State is justified in taking the steps which it has done to attempt to keep their possession under control. We accordingly are of the opinion that Article 3 of the 1981 Order does not detract from an individual’s right to life in a way which is in breach of Article 2 of the Convention.

31. For the reasons which we have given we consider that the conviction of the appellant on counts 2 and 3 should not be set aside and we dismiss the appeal against conviction.


32. In the light of the judge’s finding under Article 23 that the appellant held the firearm for a lawful object, the defence of himself and his family, we must regard the penalty imposed by the judge on these counts as unnecessarily severe, even if the term of imprisonment was suspended. It is nevertheless necessary for us to stress that citizens cannot take the law into their own hands and obtain firearms if they do not have certificates for them, however strong justification they may feel they have. We therefore do not think it right to reduce the penalty to one that is purely nominal. We consider that a modest fine would meet the circumstances of this case and propose to substitute a fine of £100 on each count.











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