Neutral Citation Number: [2011] EWCA Crim 1712
Case No. 2010/02112/D4
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday 30 June 2011

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  OWEN

and

MR  JUSTICE  WALKER
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R E G I N A

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THOMAS  DENNIS  GREGORY
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Mr M Tregilgas-Davey appeared on behalf of the Appellant

Mr R Tutt appeared on behalf of the Crown
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J U D G M E N T

THE LORD CHIEF JUSTICE:  

1.  This is an appeal against conviction by Thomas Gregory, who, following a ruling made by His Honour Judge Field in the Crown Court at Swindon that section 1(1) of the Firearms Act 1968 created an absolute offence, pleaded guilty on re-arraignment to possessing an altered firearm without a firearm certificate, contrary to section 1(1)(a) of the Firearms Act 1968, and possessing a firearm when prohibited, contrary to section 21(1) of the same Act.

2.  On 17 March 2010, after a Newton hearing, he was sentenced to four years' imprisonment on count 1 and three years' imprisonment on count 2, to run concurrently.  An appropriate direction in relation to time spent on remand was made.

3.  The essential facts can be briefly summarised.  On 12 August 2009 the appellant and his mother were observed going into a wood in Wiltshire.  About an hour later they emerged.  The appellant was the front seat passenger of the car driven by his mother.  The car was stopped.  In the boot of the vehicle a sawn-off shotgun was found.  The prosecution case on count 1 was that the appellant had entered the wood to collect the sawn-off shotgun.  As to count 2, he was prohibited from possessing a firearm because he had been sentenced to a period of four years' detention in June 2003.

4.  When the case was listed Judge Field was invited to consider whether the offence alleged against the appellant was an offence of strict liability, or, without the precise refinements of the difference being analysed, an offence of absolute liability, and in particular whether the facts asserted by the appellant gave rise to any defence.  In essence, and based on his interview with the police, the appellant asserted that he had stopped to urinate while walking in the woods and noticed a package which, on closer examination, he realised was a firearm.  He said that he had picked it up, walked 100 yards or so back to his mother's car with it, and put it into the boot of her car.  His original intention was to keep it, but his mother prevailed on him to hand the firearm in to the police.  They were on their way to the local police station to hand in the weapon when they were stopped.

5.  The judge ruled that section 1(1) of the Firearms Act 1968 created an absolute offence and that the mental state of the appellant was irrelevant.  The Act provided a number of different exemptions from criminal liability which were not covered.  He continued:

		"So notwithstanding the fact that the [appellant] said this is most unfair, that he was genuine in his intention to take the weapon straight to the police, once he is prosecuted he is bound up with this particular section which .... creates an absolute offence."

6.  The judge therefore ruled that there was no defence to the charge, although he indicated that the circumstances would be highly relevant to sentence and that if the appellant pleaded guilty, the case would proceed to a Newton hearing for decision whether his account of these events was true, or whether, as the prosecution contended, the appellant had visited the particular spot with the specific intention of recovering the weapon and thereafter keeping it for himself.

7.  Following the judge's ruling the appellant pleaded guilty and gave evidence at a Newton hearing, consistent with his account in interview.  His mother, who had also been interviewed at the time when the car she was driving was stopped, gave evidence to similar effect.  The judge made a number of findings of fact.  The appellant had not come across the gun by chance.  Nor had he proposed immediately to take it to the police station.

8.  For present purposes, the outcome of the Newton hearing is not relevant.  The submission is that in his ruling before the appellant pleaded guilty the judge erred in law when he concluded that on the basis of the facts disclosed during the police interview, there was no defence.  The submission is that Parliament could not have intended to criminalise an individual who took possession of a firearm in order to hand it over directly to the police.  That does not quite reflect what the appellant intended.  He was certainly in possession of the firearm, and for a time at least he did not intend to hand it in to the police.  He intended to keep it for himself.

9.  The original basis for the appeal was that the judge was wrong to conclude that section 1(1) of the 1968 Act created an absolute offence and that the mental state of the appellant was irrelevant.

10.  In our judgment the effect of the judge's ruling was correct, although it was wrong for him to describe the offence as one of absolute liability.  To be in possession of a firearm without a firearm certificate is an offence of strict liability.  The authorities are consistent and numerous.  They are conveniently summarised in R v Zahid [2010] EWCA Crim 2158, adopting R v Deyemi and Edwards [2008] 1 Cr App R 25.  In Zahid this court certified that a point of law of general public importance was involved in the decision.  The point certified was:

		"In a case where the defendant has accepted a package into his possession, and the package is found to contain prohibited ammunition, does the prosecution have to prove that the defendant knew that the package contained ammunition, or was reckless that the package might contain ammunition and nonetheless retained possession, in order to sustain a charge under section 5(1A)(f) of the Firearms Act 1968?"

Leave to appeal to the Supreme Court was refused.  The Supreme Court has recently rejected the application for leave to appeal.  The strict liability principle is unchanged.

11.  The original hearing of the present appeal was postponed, pending the consideration of Zahid by the Supreme Court.  In the light of that decision the original argument, as developed before Judge Field, and then in this court, was no longer pursued.  Instead a new argument was developed: that the defence of duress of circumstances would have been open to the appellant; accordingly, the guilty plea was entered on a flawed basis, and the conviction is unsafe.

12.  The defence of duress of circumstances is of strictly limited ambit.  Nevertheless, it is possible to envisage circumstances in which, in the context of possession of a firearm, it, or a defence of necessity, might arise.  In argument Walker J invited consideration of a situation in which a member of the public, witnessing a man firing a gun in a school room, disarms him and seizes hold of the weapon.  A similar situation would arise if a bank robber drops his gun and a member of the public seizes hold of it and runs away with it to a safe place to keep it until the police arrive.  We do not propose to give a ruling on these hypothetical cases.  They must be decided in the light of their individual facts when they arise.  We simply observe that in such extreme circumstances it may not be sufficient or fair to the public-spirited citizen to assume that because he or she would never be prosecuted and that, if a prosecution were mounted, the case would be disposed of by an absolute discharge, the possible duress/necessity defence would be bound to fail.  But even these hypothetical facts do not exist here.  There is and never has been any doubt that there was a time when the appellant was voluntarily in possession of the firearm, and that he remained in possession of it, intending to keep it for his own use.  For a time, at any rate, even on the best possible view of his account, he had no altruistic or public-spirited intention, and there were no circumstances which created the slightest duress.  None was suggested in his interview; none was suggested on his behalf prior to the judge's ruling; and in reality, even when he gave evidence at the Newton hearing, he did not suggest any duress of circumstances.

13.  Accordingly the ruling made by the judge was not only correct in the context in which he was considering it, but, on the facts on which he based his ruling, no defence was disclosed.  The plea was a properly informed and voluntary one.  The conviction is safe.

14.  We end by reminding ourselves that in this case the police and CPS never accepted for a moment that the appellant was in possession of the firearm for any altruistic motive.  They had good reason for rejecting any such notion.  The appellant was rightly prosecuted.  His explanation was carefully considered at the Newton hearing.  If Judge Field had not been sure that he should reject the evidence of the appellant and his mother, the sentencing outcome would have been very different.  But at the conclusion of the hearing he rejected their accounts and he passed sentences which properly reflected the appellant's criminality.
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