Salih & Ors, R. v

LORD JUSTICE HOOPER:

Introduction

1. On 27 July 2006, in the Central Criminal Court, before His Honour Judge Forrester and a jury, Guner Salih (aged 59) was convicted of a number of offences concerning firearms. He now appeals against conviction by leave of the full court. At the end of the argument which we heard this morning we announced that the appeal against conviction would be dismissed. Our reasons will be handed down in the normal way.

2. Guner Salih also applied for leave to appeal against his sentence. During the course of the hearing we granted leave. Paul Meekey and Andrew Meekey renewed their applications for leave to appeal against sentence. We have refused those renewed applications.

The Indictment

3. The indictment charged 17 counts. Count 1 charged a conspiracy to manufacture prohibited weapons. It alleged that Guner Salih between the 23rd day of April 2002 and the 25th day of February 2003 conspired together with Stephen Ronald Herbert and Gary Colin Beard to manufacture prohibited weapons. Count 2 was in a similar form, except that the conspiracy was to sell or transfer prohibited weapons. Count 3 was in a similar form, save that it was a conspiracy to possess firearms with intent to cause fear of violence. Count 5 alleged that Guner Salih, Andrew Meekey and Paul Meekey conspired together between the 10th day of October 2002 and the 1st day of July 2003 to sell or transfer prohibited weapons. Count 6 was in a similar form, but alleged a conspiracy to possess firearms with intent to cause fear of violence. The particulars were that they conspired together and with others "to have in their possession firearms with intent by means thereof to cause, or to enable another person by means thereof to cause, a person (or persons) to believe that unlawful violence would be used against him (or them) or another person". Count 7 charged Guner Salih alone with the possession of a .25 Automatic calibre Astra Cub self-loading pistol, together with five rounds of ammunition with intent to endanger life. The appeal against conviction which we have dismissed relates solely to that count.

4. Count 8 charged Guner Salih with the possession of prohibited ammunition, namely 25 rounds of .22 calibre ammunition loaded with hollow-point bullets. Count 9 charged him with possession of ammunition without holding a certificate, namely a quantity of modified 9 millimetre PAK calibre ammunition. Count 10 charged him with possession of ammunition without a certificate, namely a quantity of modified 8 millimetre ammunition. Count 11 charged him with possession of more ammunition, a quantity of .25 automatic calibre ammunition. Count 12 charged him with having in his possession weapons designed to discharge a noxious substance, namely two CS gas batons. Count 13 charged Andrew Meekey and Paul Meekey with having in their possession a prohibited weapon, namely a .32-inch ACP (7.65 millimetre) calibre Zastava Model 70 self-loading pistol. Count 15 charged Andrew Meekey and Paul Meekey with having in their possession five rounds of .22 Long Rifle calibre ammunition loaded with hollow-point bullets. Finally, count 17 charged the two Meekeys with possession of 152 cartridges without holding a certificate.

5. The appellant was convicted on counts 1, 2, 3 and 5 and was sentenced to seven and a half years' imprisonment, concurrent on each. On count 6 (conspiracy to possess firearms with intent to cause fear of violence) he was sentenced to seven and a half years' imprisonment, to be served consecutively. On count 7 (possessing a firearm with intent to endanger life) he was sentenced to seven years' imprisonment, consecutive. On count 8, he was sentenced to five years' imprisonment, concurrent; on counts 9, 10 and 11, three years' imprisonment, concurrent; and on count 12, five years' imprisonment concurrent. The total sentence was one of 22 years' imprisonment.

6. Andrew Meekey was convicted on counts 5 and 6, and was sentenced to seven and a half years' imprisonment on each, consecutive; on counts 13 and 15, he was sentenced to five years' imprisonment, concurrent on each; and on count 17 he was sentenced to three years' imprisonment, concurrent. Thus his total sentence was one of 15 years' imprisonment.

7. Paul Meekey was convicted on counts 13, 15 and 16 and was sentenced to concurrent terms of seven years' imprisonment; and on count 17 he was sentenced to a concurrent term of three years' imprisonment, making a total of seven years' imprisonment.

8. Stephen Herbert and Gary Beard (who were named in counts 1, 2 and 3) had each pleaded guilty at an earlier trial when they were indicted with the appellant Salih only. They were each sentenced to six years' imprisonment. However, on 22 April 2005, following the referral of those sentences by the Attorney General, the Court of Appeal substituted total sentences of nine years' imprisonment. For the purposes of this case it is important to note that the court said that the appropriate starting point for the conspiracies to which the two offenders had pleaded guilty would have been a total in the region of 15 years' imprisonment in each case.

The Facts

9. Guner Salih owned and ran Moderne Buckles, a shop in Bethnal Green Road dealing in imitation firearms, knives, camouflage clothing and associated items. On 1 April 2003, following a surveillance operation (as a result of which the co-accused Herbert and Beard had been arrested on 24 February), Guner Salih was arrested and his shop was searched. In his pocket was found a loaded pistol. In his shop, apart from quantities of legitimately held items, were found prohibited and restricted weapons and ammunition. Andrew Meekey had been a regular visitor to the shop. On 30 June 2003, police went to the house in Lister Road, East London, where he lived with Paul Meekey, his father. They were both firearms enthusiasts and collectors. When the premises were searched prohibited and restricted firearms and ammunition were found as well as a large number of legitimately held items. (It was accepted that none of the defendants had a certificate or licence to hold restricted firearms or ammunition.)

10. It was the prosecution's case that Guner Salih was involved in dealing in prohibited and restricted firearms and ammunition under the cover of his business at Moderne Buckles. He was in possession of the illegal as well as the legal items found there (counts 8-12). He was in a dangerous business and carried the loaded pistol found in his pocket on arrest for self-protection, so that it was in his possession with intent, if necessary, to endanger life (count 7). He supplied Stephen Herbert and Gary Beard with replica firearms in the knowledge that they were converting these into real working firearms for sale to criminals, and he himself sold some of them through Moderne Buckles (counts 1-3). He also sold prohibited weapons supplied to him by Andrew Meekey (counts 5 and 6). (Paul Meekey was acquitted of involvement in this, and all three defendants were acquitted of involvement in the manufacture of these weapons by converting replicas into real weapons (count 4).)

11. The prohibited and restricted items found at Lister Road were in the joint possession of Paul and Andrew Meekey (counts 13, 15, 16 and 17). They were held not as part of a collection or pursuant to a hobby but for sale or transfer. Andrew Meekey sold or transferred them through Salih. It could be inferred, said the prosecution, that the bags which he was seen carrying into Moderne Buckles on 1 April contained the Reck and Derringer found there that day and that the Astra Cub in Salih's pocket was brought there by him on that or an earlier occasion (counts 5 and 6).

Counts 1, 2 and 3

12. Herbert and Beard were arrested on 24 February 2003. Their premises were searched and found to be a "gun factory". Various tools and equipment were found, and a quantity of weapons and ammunition. These included a converted Walther blank firing self-loading pistol and ten 8 millimetre PPK replica self-loading pistols which had all been converted, a Kimar which was readily convertible, two partly converted Valtros, other guns including a Reck and an Italian Beretta that were not converted, and quantities of blank and live ammunition. There was evidence that in July 2002 eight converted replica guns (PPKs) with modified 8mm cartridges had been supplied from Herbert's address to a group of males who were subsequently arrested (an example of the weapons going into the public domain). On 1 May 2002 Herbert had been chased and arrested, having discarded two boxes each containing a converted PPK and ammunition. The PPKs recovered in May and June 2002 had been modified in the same way as those found on 24 February 2003.

13. There was evidence from three wholesalers who supplied replica guns to Moderne Buckles and there was a schedule involving three types of blank firing handguns which were supplied between January 2002 and 1 April 2003 (when Salih was arrested). This showed that a total of 22 Combat 85s, 27 mini Berettas and 372 PPKs were supplied during that period. Salih had records of sales in respect of only six Combat 85s, six mini Berettas and thirteen PPKs over the same period.

14. Surveillance evidence showed that between 28 October 2002 and 31 January 2003 Herbert visited Moderne Buckles on seven occasions and there was a schedule of telephone calls showing contact between him and Salih over the same period. Sometimes he stayed only a few minutes but on other occasions he was there for an hour or so. On 29 October he was heard to say to Salih, "The stuff I got yesterday doesn't fit". Another time he said "needed something urgent last night". On 13 November, having first telephoned, he took a plastic bag into the shop. The bag seemed to be empty when he left half an hour later. On 9 December, having been in the shop for over an hour, he left carrying a cardboard box (although there was no record of a sale that day). On 31 January he went into the shop while Beard waited in the car, and came out carrying a plastic bag containing a box. Beard visited Target Arms, another gun shop, on 4, 11 and 24 February (when he was arrested there).

Counts 5 and 6

15. Andrew Meekey was a regular visitor to Salih's shop and also used to telephone him. There was surveillance and telephone evidence covering the period October 2002 to 1 April 2003. Police officers gave evidence of the events of 1 April. There was also video film taken outside and inside Moderne Buckles. A Mr Till was there for much of the morning. At about 10.40am Andrew Meekey arrived in a white van and carried a black bin liner and a Tesco bag into Moderne Buckles. He was seen standing behind the counter with Salih, drinking a hot drink, with the two bags on the floor also behind the counter. He and Mr Till went out at about 11.26am and returned a minute later (he had possibly put something into his van). Andrew Meekey left at 12.04pm. Mr Till left at 1.16pm. He was apprehended by a police officer who found a retractable air gun stock on him. Mr Till made a statement two days later, saying that he had gone to Moderne Buckles that day by arrangement, to buy the air gun stock from Andrew Meekey. It was in a bin liner. He later made another statement, saying that he took the gun stock out of the bin liner and did not notice whether there was anything else, but later he saw Salih looking at some hard-back books which he had not noticed before. (These statements were read because Mr Till could not be found, but they were not agreed.)

16. Police officers entered the shop at 1.22pm and Salih was arrested. He was asked if he had any real firearms in the shop and he said that he did not. However, when he was told that there would be a full search of the premises he pointed to a box under the counter and said that it contained a real gun.

Count 7

17. At the police station Salih was found to have in his pocket a loaded Astra Cub self-loading pistol with its safety catch off. (This was a factory-made firearm, a prohibited weapon, and not a converted replica. It was in working order. There was no round in the breech itself but there were five rounds of ammunition in the magazine. He said, "I was going to hand it in during the amnesty". In the desk tidy at Moderne Buckles was found a cartridge casing which the firearms expert concluded had been fired in that pistol. Swabs were taken from Salih's hair, face, hands and fleece jacket. Four types of residue were found on his hands and fleece (and only four particles in total on his face and none in his hair). Type 2 residue predominated but about 20% was Type 3, which was consistent with having come from that fired bullet.

18. When interviewed Salih denied committing any crime. He said that the Astra Cub had been in the shop since his father-in-law's time, and that he intended to take it to the police station. (He gave the same account as he gave in evidence.) He was also asked about the substantial sums of money found in his wallet and the shop. He said that he was a collector and bought and sold very old guns privately. He sometimes bought "army gear" from Steve Herbert and had no idea that he was dealing in ammunition or firearms. He never sold anything knowing that it was going to be converted. He provided invoices only when asked, and sometimes forgot to make out the counterpart.

Counts 8-12

19. Moderne Buckles was searched. Schedules were produced listing what was found there, which were not disputed. There were also photographs. (Forty-eight exhibits were seized, but they were not all relied on by the Crown.) There were plenty of air rifles, replica guns and accessories, but there were also real guns with suitable ammunition, including a converted Derringer pistol and a converted Reck blank firing pistol, both prohibited weapons. The Derringer, with eight bullets and a cleaning rod, was concealed in a 1980s video cassette case, on a shelf behind the counter. The Reck was on the ground behind the counter, in a Valtro plastic gun box, and there were six rounds of live unfired modified 8mm ammunition in a Rothmans cigarette packet on a nearby shelf which fitted it. There was also a Kimar, which was a readily convertible replica, and a Brocock which was not restricted.

20. On a shelf behind the counter were found: twenty-five rounds of .22 calibre ammunition loaded with hollow-point bullets (count 8); twenty-five rounds of live modified 9mm PAK calibre ammunition (count 9); and twenty-five rounds of .25 automatic calibre ammunition in boxes (count 11). It was accepted that the ammunition the subject of count 8 was prohibited, and that the subject of counts 9, 10 and 11 was restricted and that Salih did not hold the necessary certificate. On display on hooks behind the counter were two CS gas batons, which are prohibited items under section 5(1)(b) of the Firearms Act 1968 (count 12).

Counts 13, 15-17

21. On 30 June 2003 the Meekeys' home at Lister Road was searched. Andrew Meekey was there but not Paul Meekey. There was a schedule, and a video and photographs, of real and replica firearms, component parts of firearms, items connected with firearms, tools with which to work on firearms, real and blank ammunition and equipment for manufacturing it, re-loading equipment, over 90,000 percussion caps and a total of some 29 kilograms of smokeless powder, found in various parts of the premises (including the loft, which was locked, and two sheds). There were also a number of legally held antiques.

22. There were two sheds at the end of the garden. Andrew Meekey was asked, ".... the stuff in the shed at the top, who does that belong to?" He replied, "That's mine. My dad had some tools in that one" (indicating the right-hand shed). In the right-hand shed was a desk in the drawers of which were a large number of bullets, some prohibited or restricted but not many. In the left-hand shed, in an upper part reached by a ladder, was a box containing guns and gun parts, some restricted; a "Wickes" bucket containing a quantity of ammunition, some prohibited, some restricted, and some not (and including a round of live unfired 8 millimetre calibre blank ammunition modified to give a .22 Eley Magnum air gun pellet. There were also some bolts, which were prohibited, and firearm components, some prohibited, some restricted and some not; and a white bucket containing a large number of pistols and revolvers, some of rare and historical interest, but including three which were prohibited.

23. Among the items in the white bucket was a Zastava self-loading pistol, agreed to be a prohibited weapon (count 13), and among the items in the Wickes bucket were five rounds of .22 Long Rifle calibre ammunition loaded with hollow points, which were agreed to be prohibited ammunition (count 15). In three drawers of the desk in the right-hand shed were found in excess of 431 bullets designed to expand on impact, again agreed to be prohibited ammunition (count 16). In the Wickes bucket were found 150 restricted cartridges, with a further two being found in Paul Meekey's bedroom, which were subject to restriction but for which no certificate was held (count 17).

The Grounds of Appeal

24. The appellant and the applicants rely upon delay. We have been referred to two cases: R v Ashton[2002] EWCA Crim 2782 and R v McCartney[2003] EWCA Crim 1372. There is no doubt that there is a recognised principle that sentencing courts may take into account delay and reflect it in some reduction of the sentence which would otherwise be appropriate. When passing sentence the trial judge said:

"I do not intend to make a reduction because of the passage of time between arrest and trial. There are delays from time to time, and they are unfortunate when they happen in these courts, but I do not propose in these circumstances to reduce the sentence to below the sentences in the case of Herbert and Beard."

25. It is not necessary for us to set out in great detail the history of the case. It suffices to say that Salih was arrested on 1 April 2003 and was released on bail on 13 June 2003. Andrew Meekey was arrested on 30 June 2003 and granted bail on 22 January 2004 (or thereabouts). Paul Meekey was arrested at the end of July 2003 and was on bail until the start of the trial.

26. By October 2003 the appellant and the two applicants with whom we are concerned had been joined together in the same indictment. However, it was decided that there would be a trial of the appellant, Herbert and Beard before the trial of the appellant and the two applicants. We are told that that was done with the express agreement of the two applicants. They hoped that the appellant might be convicted at the first trial, which might have assisted them in the presentation of their cases.

27. The trial was due to start in 2004, but was subsequently put back for a number of reasons and did not start until May 2006. The reason for the delay was that when the trial of the appellant, Herbert and Beard started, Herbert and Beard pleaded guilty. Thereafter, the trial would have continued against the appellant, but he became significantly unwell. We will return to his medical condition later. As a result of his ill-health and as a result of the pleas of guilty from Herbert and Beard, the prosecution sensibly decided to try the appellant with the two applicants. When the appellant was sufficiently well to stand his trial, there was then a further "hiccup" at the end of 2005 when it was not possible to find a court that could deal with the issue. Finally, the trial started in May 2006.

28. We take the view that the trial judge, in his conclusion that delay should not result in any reduction in sentence, reached a conclusion to which he was entitled to come. We reject the ground based on delay.

29. Before turning to the other grounds of appeal, we should deal briefly with the antecedents of the appellant and the two applicants. The appellant Salih had no previous convictions. Paul Meekey, who is now aged 61 (born on 18 March 1946), had a previous conviction in December 1977 for eleven offences of possessing prohibited weapons and possessing firearms without a certificate. (Fifty-eight offences were taken into consideration.) He also had a conviction for theft. Andrew Meekey, who is now aged 31, had one previous conviction in April 1999 for possessing a prohibited weapon, for which he was conditionally discharged. Herbert and Beard had previous convictions largely for offences of dishonesty. Although it was submitted to us in the course of argument by Mr Blaxland QC that, when considering Attorney General's Reference Nos 120 & 121 (Herbert and Beard) [2005] EWCA Crim 890 we ought to bear in mind that they had previous convictions, we note that no reference is made in the judgment of the Court of Appeal to their previous convictions being an aggravating factor.

30. We turn to the other points made by Mr Blaxland on behalf of the appellant. He submitted that an examination of the cases of Herbert and Beard showed that they were more involved in counts 1, 2 and 3 than the appellant. It appears that the prosecution were unable to show that the appellant was involved with Herbert and Beard for more than about five months, whereas paragraphs 7 and 8 of the Attorney General's Reference show that Herbert and Beard were involved for a total period of ten months. We see no merit in that point. The appellant faced other conspiracy counts. Nor did the arrest of his co-defendants prevent him from continuing with the other conspiracies.

31. It is submitted on the appellant's behalf that the sentence on count 7 was too long; that the prohibited firearm was in the shop; and that the sentence should have been at the bottom end of the range. In our view seven years was an appropriate sentence. What is important is the total sentence reflecting the overall criminality of a defendant. The precise way in which that is assigned between the various counts may not be of any great significance. We must decide, first of all, whether the total sentence of 22 years was an appropriate sentence. In our view, but for one particular matter, it was an appropriate sentence to reflect the conduct of which the appellant had been convicted.

32. Our concern in relation to the appellant's sentence is a narrow one. It relates only to his personal circumstances. He is approaching his 60th year. We have documents which confirm that his health is poor. It was his ill-health which led to the adjournment of the first trial. He had a heart attack in July 2004. This was complicated by a ventricular fibrillation. He was treated by an angioplasty. He had a further angioplasty in January 2005. On 13 January 2005 he was admitted to hospital for unstable angina. He attends his consultant cardiologist on a regular basis for check-ups. On 1 November 2005 he was admitted to hospital with chest and neck pains and was found to have spondylosis of the spine in his neck. He saw a consultant neurosurgeon in November 2005 who confirmed cervical spondylosis and he was treated by injection. He has also suffered from depression, with poor concentration and memory loss attributable to it. He is on a number of prescribed medications.

33. We take the view now that the proper sentence for him is one of 18 years' imprisonment. As we have said, the precise way in which a judge assigns the sentence on individual counts is sometimes of no great importance. We take the view that the simplest and easiest way to achieve that reduction is to quash the consecutive sentence of seven years' imprisonment on count 7 and to substitute for it a consecutive term of three years' imprisonment. We have made it clear that in our judgment the sentence of seven years was entirely appropriate; but for the reasons we have outlined we reduce that sentence with the aim of reducing the overall sentence to one of 18 years' imprisonment.

The submissions made on behalf of the applicant Andrew Meekey

34. In addition to the point about delay, Mr Misner makes a point about count 4. That charged a conspiracy with Salih and Paul Meekey to manufacture prohibited weapons. The jury acquitted all three of the defendants on that count. It is submitted by Mr Misner that it was not appropriate simply to apply Herbert and Beard and reach the conclusion that a total sentence of fifteen years' imprisonment was appropriate.

35. We answer that submission in two ways. Whilst in the Attorney General's Reference the court says that Herbert and Beard were involved in the stages as reflected in the three counts, it is significant that the aggravating feature in this kind of case is the intention on the part of the conspirators to equip criminals with fully functioning firearms. In our view the fact that there were only two conspiracies here and three conspiracies in the Attorney General's Reference is not of any significance.

36. Even if we were wrong about that, there is the additional feature that the sentencing judge must sentence for the totality of the offending. The circumstances in which the weapon in count 13, for example, was found are sufficient to show that the total sentence of fifteen years' imprisonment is not manifestly excessive.

The submissions on behalf of the applicant Paul Meekey

37. We turn to Paul Meekey. In his sentencing remarks the trial judge said that he had no doubt that Paul Meekey knew what was in two buckets, the Wickes bucket and the white bucket. The judge said:

"They included not only the Zastava pistol in the white bucket, but also guns 10 and 11, which it is agreed were prohibited weapons. The Wickes bucket also contained a number of other prohibited items, including parts of firearms. In addition, you possessed the ammunition in counts 15, 16 and 17.

It is right, as your counsel has pointed out, that the Zastava was not loaded, but there was ammunition available for it, and there was no lawful use for such a handgun in these circumstances. Your offences were premeditated. These weapons and ammunition did not just happen to be there by chance. So, in all these circumstances, a sentence towards the higher end of the scale for possession of prohibited weapons is necessary, reminding myself as I do that the maximum sentence is ten years."

38. Although Mr Rush on behalf of the applicant Paul Meekey did not identify this as a ground of appeal, before us he sought to argue that the judge was wrong to reach the conclusion that the applicant knew what was in the two buckets. In order to succeed on that, he would have to show that the very experience trial judge, who had heard all the evidence over a long period of time, had reached a conclusion which no reasonable judge could reach. Mr Gadsden on behalf of the Crown pointed out that there was ample evidence that the applicant knew what the contents were. In our view the judge was entitled to reach that conclusion.

39. Criticism was made by Mr Rush of the reference to "guns 10 and 11". He submitted that they had not formed part of the indictment and therefore the judge was not entitled to take them into account. The prosecution's case had been that the white bucket contained things to be used in the conspiracy to manufacture prohibited weapons (count 4). The fact that the applicant was acquitted on count 4 cannot mean that the evidence about the contents of the white bucket is not something which the judge is entitled to take into account. The jury had reached the conclusion that the applicant was in possession. They were directed that the possession could have been a technical possession. The judge reached the conclusion that Paul Meekey knew what the contents of the buckets were and therefore the judge was entitled to take into account the contents of the bucket.

40. In our view the conclusion that a sentence towards the higher end of the scale was the appropriate sentence, was right. We refuse the application for leave to appeal the sentence of seven years.

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