Firearms, Possession not use of weapon is crucial
Regina v Duhaney & Stoddart
(1997) The Times, 9 DecemberThe Court of Appeal
The Statute
Section 18 of the 1968 Act provides: "(1) It is an offence for a person to have with him a firearm or imitation firearm with intent to commit an indictable offence. . .
"(2) In proceedings for an offence under this section proof that the accused had a firearm or imitation firearm with him and intended to commit an offence, or to resist or prevent arrest, is evidence that he intended to have it with him while doing so."
The Facts
Duhaney and Stoddart both pleaded guilty to attempted robbery and were each sentenced to six years imprisonment. Stoddart was sentenced to a further consecutive term of 30 months for the firearms offence making a total in his case of eight and a half years. Both appealed against sentence.
The court, said that Duhaney & Stoddart's case was that the carrying of the firearm and the criminal intent were directly related in that they had to be shown to have had the firearm with them in order to further their criminal intent. It was common ground that the actual use of the weapon was irrelevant.
The Court considered that the ingredients of the offence under section 18(1) of the 1968 Act were made out if it was proved: (a) that the defendant had with him a firearm, (b) that he intended to have it with him and (c) that at the same time he had the intention to commit an indictable offence or to resist or prevent arrest.
That was so, and in particular that the requisite intent(s) under (b) and (c) were distinct rather than composite elements of the offence, was supported by the wording of section 18(2) which rendered proof of (a) and (c) probative of (b).
It was the treatment of (b) as a separate and essential link in the complete offence which on the one hand negated the argument for the Crown that (a) and (c) together were sufficient and, on the other hand, meant that the argument for the appellant went too far in asserting the need for an intention to use or carry the gun in furtherance of the indictable offence.
On the facts admitted before the Court of Appeal the appellant had no defence to the count and there were no good grounds to invalidate his plea or set aside his conviction.
The Decision
Section 18(1) of the Firearms Act 1968 was intended to be wide enough to embrace those who set out to commit an indictable offence while intentionally carrying a firearm, whether or not there was intent to use the weapon in the crime.
The Court of Appeal, so held dismissing an appeal by Stoddart against his conviction at Crown Court when he pleaded guilty to having a firearm with intent to commit an indictable offence, contrary to section 18 of the 1968 Act, following an adverse ruling by a Judge to the interpretation of the statute.
Comment
By way of comment it is apposite to consider what the Court of Appeal said in Regina v Avis and related appeals and applications, (1997) The Times, December 19 on the question of past sentences for firearms offences which sometimes failed to reflect public concern.
THE LORD CHIEF JUSTICE, said that review of the level of sentence for firearm offences had been prompted by considerations that:
In recent cases, the Court of Appeal had criticised sentences imposed or upheld in previous cases as inadequately reflecting the gravity of such offences: see R v Ecclestone (1995) 16 Cr App R (S) 9, 11; R v Francis (1995) 16 Cr App R (S) 95, 98 and R v Clarke [1997] 1 Cr App R (S) 323, 324.
Parliament, in the CJPOA Act 1994, had recently increased the maximum term that might be imposed for certain of the offences.
"Given the clear public need to discourage unlawful possession and use of firearms, both real and imitation, and Parliament's intention expressed by the continuing increase in maximum penalties, the courts should treat such offences under the Firearms Act 1968, as amended by the Firearms (Amendment) Act 1994, as serious. Past sentences for such offences had sometimes failed to reflect their seriousness and the justifiable public concern they aroused.
Save for minor infringements, offences committed under sections 1(1), 2(1), 3, 4, 5(1A), 16, 16A, 17(1) and (2), 18(1), 19 and 21(4), would generally merit custodial sentences, even on a plea of guilty and where the offender had no previous record. On breaches of sections 4, 5, 16, 16A, 17(1) and (2), 18(1), 19 or 21, the custodial term was likely to be considerable, and where particular factors were present, terms at or approaching the maximum might be appropriate."
Rob Jerrard