Proving possession of firearm is sufficient
Regina v Nelson
(2000) The Times, March 7, COURT OF APPEAL
The Statute
Firearms Act 1968, s. 17
Offences Specified in the Firearms Act 1968, sch. 1
Offences under the Criminal Damage Act 1971, s. 1; offences under the Offences against the Person Act 1861, ss. 20 to 22, 30, 32, 38, 47; offences under part I of the Child Abduction Act 1984; theft, robbery, burglary, blackmail and any offence under the Theft Act 1968, s. 12(1); offences under the Police Act 1996, s. 89(1), or the Police (Scotland) Act 1967, s. 41; offences under the Criminal Justice and Public Order Act 1994, s. 13(1); offences under the Sexual Offences Act 1956, ss. 1, 17, 18, 20; an offence under the Criminal Justice Act 1991, s. 90(1);
aiding or abetting the commission of any such offence; attempting to commit any such offence
Nelson was seen in a Sainsbury’s supermarket to select a chicken sandwich, eat it and discard the packet. He left the store having made no attempt to pay. He was arrested and searched and was found to be in possession of a small imitation firearm. In the light of that background, the Crown invited the judge to rule as to whether they were required to prove the theft alleged in count 1 before Nelson could be guilty of the firearms offence in count 2.
The judge ruled that that was not a necessary part of the proof of the firearms offence and in consequence Nelson pleaded guilty to count 2.
On appeal, Counsel for Nelson submitted that the judge ought to have ruled that it was necessary to prove the actual commission of the scheduled offence before there could properly be a conviction under section 17(2).
If the judge were correct, the question of reasonable grounds on the part of the police officer for arresting a person might be the subject of complex inquiry.
Also the consequences of conviction of this offence were serious because under the Crime (Sentences) Act 1997 a second conviction for an offence of that or any other serious kind attracted a mandatory life sentence.
Counsel for the Crown argued that the words of the section were clear and unambiguous and did not include any requirement that the person arrested should have committed the offence.
Both counsel drew attention to R v Baker [1962] 2 QB 530 which dealt with section 23(2) of the Firearms Act 1937, the precursor to section 17(2) of the 1968 Act, where it was held that the offence specified in the Schedule had in fact to have been committed before there could be a conviction under section 23(2).
In their Lordships’ judgment, without reference to authority, the words in section 17 appeared to be clear and unambiguous. Section 17(2) was directed to the carrying of a gun, not of itself an offence but becoming an offence if it was carried either when a scheduled offence was being committed or when someone was being arrested for a scheduled offence.
There was also contained in section 17(2) the statutory defence open to a defendant whereby it was open for him to show a lawful object for that possession.
Had it been Parliament’s intention to require that the scheduled offence had actually been committed it could readily have said so. The question then arose as to whether Baker forced a different conclusion. However, the court in Baker was not considering the provisions of the 1968 Act but the 1937 Act. It was apparent that the climate in relation to the carrying of firearms had changed in the last 40 years.
That was evidenced by the fact that now the maximum penalty was life imprisonment and not the much shorter sentence applied in earlier times.
Their Lordships’ conclusion was that even on the assumption that Baker was correctly decided in 1937, it did not compel them to construe section 17(2) differently from the way in which that section seemed to require to be construed.
The appeal was accordingly dismissed.
The Decision
There was no requirement, on a charge of possessing a firearm or imitation firearm on arrest for a specified offence, contrary to section 17(2) of the Firearms Act 1968, that the prosecution prove that the defendant actually committed the specified offence. It was only necessary to prove that the defendant was in possession of the firearm when lawfully arrested for a specified offence. The Court of Appeal, Criminal Division, so held in dismissing an appeal by Nelson against his conviction on a plea of guilty at Crown Court before of possessing an imitation firearm on arrest on suspicion of theft. The possession offence was specified in Schedule 1 to the 1968 Act, the judge having ruled that the offence was committed simply on proof by the prosecution that the defendant was in possession of the imitation firearm on his lawful arrest.
He was sentenced to six months imprisonment to run consecutively to a sentence of 30 months for an offence in a separate indictment of attempted robbery.
Comment
This case draws attention to a fundamental principle of law; the "Doctrine of Precedent" - both prosecution and defence drew the court's attention to R v Baker [1962] 2 QB 530, in which it was held that there must be proof of the scheduled offence (THEFT in this case) before the firearms offence can be said to have been committed. The Court held that it was not bound by Baker and their way of "distinguishing" or not following the earlier precedent is because Baker was decided under s.23 of the Firearms Act 1937 and, a change in the "climate of opinion".
Their Lordship's do not appear to be overruling Baker; rather they are taking the very brave step of deciding that "had it been Parliament's intention to require the Scheduled offence to have been actually committed it could readily have said so".
One is reminded of the words of Lord Simonds in Magor and St Mellons V Newport Corporation [1952] AC 189; [1951] 2 ALL ER 839; when he criticised the Court of Appeal, "Nor should I have thought it necessary to add any observations of my own were it not that the dissenting opinion of Denning LJ appears to invite some comment. My Lords, the criticism which I venture to make of the judgment of the learned lord justice is not directed at the conclusion that he reached. It is after all a trite saying that on questions of construction different minds may come to different conclusions and I am content to say that I agree with my noble and learned friend. But it is on the approach of the lord justice to what is a question of construction and nothing else that I think it desirable to make some comment, for at a time when so large a proportion of the cases that are brought before the courts depend on the construction of modern statutes it would not be right for this House to pass unnoticed the propositions which the learned lord justice lays down for the guidance of himself and, presumably, of others. He said: ([1950] 2 All ER 1236):
'We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.'
Lord Simonds concluded, "The duty of the court is to interpret the words that the Legislation has used. Those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited".
The only way to see this, is to say that the Court is Baker sprang a leak when they set off on a voyage of discovery in 1961 and after a very long trip decided to turn back. Lord Denning would be proud, he would say, "We have found a way around it".