Zahid v R

On 20 November 2009 before HH Judge Pillay at Blackfriars Crown Court, the appellant pleaded guilty to two counts of possession of expanding ammunition contrary to section 5(1A)(f) of the Firearms Act 1968. He did so following a ruling by the learned judge that the offences were ones of strict liability where all the prosecution had to prove was possession of the ammunition and that it was no defence that the appellant believed that the ammunition was some other innocent material. Accordingly the judge held that there was no defence available to the appellant as a matter of law.

The relevant facts were essentially agreed and can be stated briefly as follows. On 25 January 2008, the appellant was arrested for non payment of a road traffic fine. He was searched using a metal detector and two bullets were found in the inside breast pocket of his jacket. He told police that they must have been left over from when he was shooting on a range in Dubai and he had not realised they were there. When police searched his house, they found a package of brown paper with adhesive tape round it containing 38 bullets of the same type inside a Gucci washbag on a shelf in his study. All the bullets were live and were designed to expand on impact. His DNA was not found on any of them.

In interview, he said that he had found the package outside his front door on the morning of 23 January 2008. He had put it inside the breast pocket of the jacket he was wearing, which was the same jacket as he was wearing when arrested two days later. That afternoon, he had placed the package inside the washbag in the study. He said that he believed it to contain bolts or screws left by workmen who were working at his house repairing windows and doing various remedial work. He did not know that the package contained ammunition or that anything had fallen out of his pocket. When told that the package contained ammunition, he believed that it was linked to the kidnap plot against him.

This was a reference to the fact that the appellant had been subject to a kidnap plot in April 2007. On 1 May 2007, the defendants in the kidnap case were arrested and remanded in custody. In October 2007, Thames Valley Police warned the appellant of a further threat, although at the subsequent Newton hearing referred to below, evidence was given by the officer in charge at the trial of the kidnappers that none of them had known the appellant’s home address. Five men were convicted of conspiracy to kidnap in March 2008, one of whom had previously admitted possessing ammunition without a certificate.

Following the judge’s ruling that there was no defence available to the appellant in law, the appellant lodged a basis of plea which was not accepted by the Crown. Accordingly, a Newton hearing took place on 24 March 2010, at which the appellant repeated the explanation for possession of the ammunition which he had given in interview. In his ruling on 26 March 2010, the learned judge roundly rejected the appellant’s explanation and evidence. He found it “utterly improbable” that the appellant would have picked up a package outside his house, thinking it to be nuts and bolts and then placed it in the inside pocket of his jacket without examination, attend business meetings for four or five hours, then gone home and placed it in a washbag, again without examination. The judge also found it improbable that two bullets would have spontaneously dropped out of the bag or slipped into his pocket.

Accordingly, the judge held that the appellant fell to be sentenced on the basis that he knew that the package in the washbag contained bullets and that he knew there were two further bullets in his jacket pocket. On that basis the judge sentenced him to 30 months imprisonment concurrent on each count.

The appellant’s application for leave to appeal against conviction and sentence was referred to the Full Court by the Registrar of Criminal Appeals. The application for permission to appeal was lodged on 22 April 2010, in time so far as sentence was concerned, but 4 months out of time so far as conviction was concerned. The reason for the delay was that the appellant wanted to know the outcome of the Newton hearing and the sentence hearing before deciding whether to fund an application for permission to appeal privately. In the particular circumstances of the case, we gave permission to appeal both conviction and sentence. At the hearing on 14 September 2010 we dismissed the appeal against sentence and gave our reasons. We indicated that the appeal against conviction would also be dismissed but that we would give our reasons later. This judgment sets out those reasons.

Before this Court as before the learned judge, the appellant was represented by Lord Gifford QC who presented a well-reasoned and eloquent argument in support of his client’s case. In both his written and oral submissions, Lord Gifford sought to distinguish a number of previous decisions of this Court which have determined that offences under sections 1 and 5 of the Firearms Act are strict liability offences and that there is no scope for a defence based upon passages in the speeches of certain of their Lordships in Warner v Commissioner of Police of the Metropolis [1969] 2 AC 256 that although the defendant was physically in possession of an object, he was ignorant of its nature: see most recently the decision of this Court in R v Deyemi and Edwards [2008] 1 Cr App R 25, where all the earlier cases were reviewed.

Lord Gifford seeks to avoid the conclusion that the arguments he raises have all been determined against his client by previous decisions of the Court of Appeal by contending that a distinction should be drawn between two different factual situations in cases such as the present involving the relevant firearm or ammunition being in a “container”: (i) cases where the defendant’s case is that he was unaware of the contents of the relevant container and (ii) cases where the defendant’s case is that he believed that the contents of the container were something innocent, in the sense that the defendant believed that the contents of the container were something other than a firearm and/or ammunition.

Lord Gifford contends that support for such a defence being available in cases falling into the second category is to be found in the speech of Lord Pearce in Warner (with which Lords Reid and Wilberforce agreed). Warner was of course a drugs case but Lord Gifford submits that the principle to be derived from that case should be equally applicable to firearms cases.

The passage in Lord Pearce’s speech on which he relies in particular deals with the problems surrounding possession of the contents of a container. At 305, Lord Pearce said this:

“On the other hand, I do not think Parliament intended to make a man guilty of possessing something when he did not know that he had the thing at all and it is there that the real difficulties begin.

Lord Parker C.J. [in Lockyer v Gibb]( [1967] 2 Q.B. 243, 248) was right (and this is conceded by both sides) in taking the view that a person did not have possession of something which had been "slipped into his" bag without his knowledge. One may, therefore, exclude from the "possession" intended by the Act the physical control of articles which have been "planted" on him without his knowledge. But how much further is one to go? If one goes to the extreme length of requiring the prosecution to prove that "possession" implies a full knowledge of the name and nature of the drug concerned, the efficacy of the Act is seriously impaired, since many drug pedlars may in truth be unaware of this. I think that the term "possession" is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general understanding of the word "possess." Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets. This would be so I think even if I believed them to be sweets. It would be otherwise if I believed them to be something of a wholly different nature. At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury who would probably decide it sensibly in favour of the genuinely innocent but against the guilty.

The situation with regard to containers presents further problems. If a man is in possession of the contents of a package, prima facie his possession of the package leads to the strong inference that he is in possession of its contents. But can this be rebutted by evidence that he was mistaken as to its contents? As in the case of goods that have been "planted" in his pocket without his knowledge, so I do not think that he is in possession of contents which are quite different in kind from what he believed. Thus the prima facie assumption is discharged if he proves (or raises a real doubt in the matter) either (a) that he was a servant or bailee who had no right to open it and no reason to suspect that its contents were illicit or were drugs or (b) that although he was the owner he had no knowledge of (including a genuine mistake as to) its actual contents or of their illicit nature and that he received them innocently and also that he had had no reasonable opportunity since receiving the package of acquainting himself with its actual contents. For a man takes over a package or suitcase at risk as to its contents being unlawful if he does not immediately examine it (if he is entitled to do so). As soon as may be he should examine it and if he finds the contents suspicious reject possession by either throwing them away or by taking immediate sensible steps for their disposal.

So to read the Act would, I think, accord with what Parliament intended and would give it a sense which would accord with the practical views of a jury, although I realise that a deeper investigation of the legal implications of possession might support various differing views. It would leave some unfortunate victims of circumstances who move innocently but rashly in shady surroundings and who carry packages or tablets for strangers or unreliable friends. But I think even they would have an opportunity of ventilating their story and in some cases, if innocent of any knowledge and bad motives, obtaining an acquittal. Some of the persons in some of the rather far-fetched circumstances which have been envisaged in argument would still be left in difficulties. But I do not think that Parliament intended to cater for them in its efforts to stop a serious evil.

At 307-8, Lord Pearce then set out a possible specimen direction that the judge could give the jury in such a case in these terms:

The Act forbids possession of these drugs. Whether he possessed them with an innocent or guilty mind or for a laudable or improper purpose is immaterial since he is not allowed to possess them. If he possessed them he is guilty. If a man has physical control or possession of a thing that is sufficient possession under the Act provided that he knows that he has the thing. But you do not (within the meaning of the Act) possess things of whose existence you are unaware. The prosecution have here proved that he possessed the parcel, but have they proved that he possessed its contents also? There is a very strong inference of fact in any normal case that a man who possesses a parcel also possesses its contents, an inference on which a jury would in a normal case be justified in finding possession. A man who accepts possession of a parcel normally accepts possession of the contents.

But that inference can be disproved or shaken by evidence that, although a man was in possession of a parcel, he was completely mistaken as to its contents and would not have accepted possession had he known what kind of thing the contents were. A mistake as to the qualities of the contents, however, does not negative possession. Many people possess things of whose exact qualities they are unaware. If the accused knew that the contents were drugs or were tablets, he was in possession of them, though he was mistaken as to their qualities. Again if, though unaware of the contents, he did not open them at the first opportunity to ascertain (as he was entitled to do in his case) what they were, the proper inference is that he was accepting possession of them. (It would be otherwise if he had no right to open the parcel.) Again, if he suspected that there was anything wrong about the contents when he received the parcel, the proper inference is that he was accepting possession of the contents by not immediately verifying them. (This would, in my opinion, apply also to a bailee.)

In the present case you may think that the difference between scent and tablets is a sufficient difference in kind to entitle the accused to an acquittal if on the whole of the evidence it appears that he may have genuinely believed that the parcel contained scent, and that he may not have had any suspicions that there was anything illicit in the parcel, and that he had no opportunity of verifying its contents. For in that case it is not proved that he was in possession of the contents of the parcel.

Lord Gifford drew our attention to passages in the speech of Lord Wilberforce at 310-312 to similar effect and to the speech of Lord Reid (who dissented on the first and main point in the case) at 282 agreeing with Lords Pearce and Wilberforce on this point. These passages were the basis for the second holding in the headnote of the case which reads:

But that (Lord Morris of Borth-y-Gest and Lord Guest dissenting), whilst, therefore, there was a very strong prima facie inference of fact that the appellant was in possession of the drugs where, as here, the prohibited drugs were contained in a parcel the prosecution had to prove not only that the accused possessed the parcel but also that he possessed its contents, for a person did not (within the meaning of the Act) possess things of whose existence he was unaware. A person who accepted possession of a parcel normally accepted possession of the contents, but that inference could be disproved or shaken by evidence that although a person was in possession of a parcel he was completely mistaken as to its contents and would not have accepted possession had he known what kind of thing the contents were. A mistake as to the quality of the contents, however, did not negative possession. If the accused knew that the contents were drugs or tablets he was in possession of them though he was mistaken as to their qualities. Again if, though unaware of the contents, he did not open them at the first opportunity to ascertain (as the appellant was entitled to do here) what they were, the proper inference was that he was accepting possession of them. (It would be otherwise if a person had no right to open the parcel.) Again, if a person suspected that there was anything wrong about the contents when he received the parcel, the proper inference was that he was accepting possession of the contents by not immediately verifying them.

Lord Gifford submits that this principle should be applicable to firearms and a similar direction to that proposed by Lord Pearce would be equally appropriate in a firearms case in which the defendant is in possession of a container or package which in fact contains a firearm (or as here ammunition) but which the defendant genuinely and mistakenly believes contains something different and entirely innocent. He submits that that was the position here, as the appellant genuinely but mistakenly believed the package contained bolts or screws, so that this case falls into the second category he has identified. He then submits that none of the earlier decisions of this Court have considered that factual situation. Rather they are all cases where the defendant was unaware of the fact that the object in his possession was a firearm.

Notwithstanding the ingenuity of the argument, we can see no reason in principle for the alleged distinction. In both the categories of case which the appellant identifies, the essence of the defendant’s argument is: “I did not know that the object in my possession was a firearm”. The reasons which this Court has given for concluding that such an argument should not afford a defence are equally applicable whether the defendant’s case is that he did not know what was in the bag or that he thought what was in the bag was an innocent object.

The reasons why this Court has reached this conclusion are set out in the judgment of Auld J in R v Bradish (1990) 90 Cr App R 271:

The justification for the concession on behalf of the appellant, which we agree has been properly made, that the offence created by section 5 is one of strict liability, at least in the absence of a defence of ignorance, may be summarised as follows:

First, the words of the section themselves, “A person commits an offence if without … authority … he has in his possession …” any firearm, weapon or ammunition of the type defined, makes plain that this is an offence of strict liability.

Secondly, the comparable words and structure of section 1 of the 1968 Act have been held by this Court in Howells ( supra ) and Hussain ( supra ) to create an offence of strict liability.

Thirdly, the clear purpose of the firearms legislation is to impose a tight control on the use of highly dangerous weapons. To achieve effective control and to prevent the potentially disastrous consequences of their misuse, strict liability is necessary, just as it is in the equally dangerous field of drugs. See per Lord Guest in Warner , at page 421 and p. 301, ( supra ). Given that section 1 has been held to create an offence of strict liability, this consideration applies a fortiori to section 5, which is concerned with more serious weapons, such as automatic handguns and machine guns, and imposes a higher maximum penalty.

On the question whether the approach adopted by certain of their Lordships in Warner v. M.P.C. ( supra ) applies to a “container” case under section 5, and presumably section 1 too, of the 1968 Act, so as to enable an accused to raise a defence that he did not know what was in the container, we are of the view that it does not. We say that for the following reasons:

First, whilst neither Howells (1977) 65 Cr.App.R. 86, [1977] Q.B. 614 nor Hussain (1981) 72 Cr.App.R. 143, [1981] 1 W.L.R. 416, was a “container” case, the Court of Appeal in each case adopted the much stricter line of Lord Morris in Warner than the “half-way house” approach of Lords Pearce, Reid and Wilberforce. See Howells, per Browne L.J. at pp. 91, 92, and p. 626F–H; and Hussain , per Eveleigh L.J. at p. 145 and p. 418 respectively.

Secondly, as noted by Browne L.J. in Howells, there are a number of provisions creating offences in the 1968 Act where there is specific reference to the accused's state of mind as an ingredient of the offence or express provision of a defence where the accused can show that he did not have a particular state of mind. Neither section 1 nor section 5 is so drafted.

Thirdly, the scheme in the Firearms legislation of specifically providing where intended a defence based on the absence of a particular state of mind has been continued in the Firearms Act 1982 . Section 1 of that Act subjects imitation firearms to the control of the 1968 Act, but provides in subsection (5) that it is a defence for the accused to show that he did not know and had no reason to suspect that the imitation firearm was constructed or adapted so as to be readily convertible into a firearm to which section 1 of the 1968 Act applies.

Fourthly, no provision corresponding to section 28(3) of the Misuse of Drugs Act 1971 has been introduced to the Firearms legislation so as to import the Warner “half-way house” concept into offences aimed at controlling the possession or use of firearms. In particular, the recent comprehensive extension of that control in the Firearms (Amendment) Act 1988 contains no such provision in relation to offences under section 1 or 5 of the 1968 Act.

Fifthly, the possibilities and consequences of evasion would be too great for effective control, even if the burden of proving lack of guilty knowledge were to be on the accused. The difficulty of enforcement, when presented with such a defence, would be particularly difficult where there is a prosecution for possession of a component part of a firearm or prohibited weapon, as provided for by sections 1 and 5 when read with section 57(1) of the 1968 Act. It would be easy for an accused to maintain, lyingly but with conviction, that he did not recognise the object in his possession as part of a firearm or prohibited weapon. To the argument that the innocent possessor or carrier of firearms or prohibited weapons or parts of them is at risk of unfair conviction under these provisions, there has to be balanced the important public policy behind the legislation of protecting the public from the misuse of such dangerous weapons. Just as the Chicago-style gangster might plausibly maintain that he believed his violin case to contain a violin, not a sub-machine gun, so it might be difficult to meet a London lout's assertion that he did not know an unmarked plastic bottle in his possession contained ammonia rather than something to drink.

Accordingly, we are of the view that, whether or not this case is regarded as a “container” case, and even if the canister had not been clearly marked “Force 10 Super Magnum C.S.,” this was an absolute offence, and it would have been no defence for the appellant to maintain that he did not know or could not reasonably have been expected to know that the canister contained C.S. gas. It follows that, in our view, the assistant recorder was correct in the ruling that he gave, so far as it went, that section 5 creates an offence of strict liability. He was not asked to consider the further question that we have just resolved against the appellant, whether, if the prosecution established possession of the prohibited weapon, it was open to the defence to raise and to prove on a balance of probabilities that he did not know that he had a prohibited weapon.

Lord Gifford submits that this passage was all obiter and therefore distinguishable. That is a difficult submission to sustain, given that in R v Deyemi, having cited that passage, the Court of Appeal said: “We consider that that exposition of the effect of the provisions of ss.1 and 5 of the 1968 Act is binding authority”. However, even if Lord Gifford were right, it would be difficult for this court to reach a different conclusion, whatever our view as to the merits of the current state of the law. In one of the cases relied upon by Lord Gifford, R v Vann and Davis [1996] Crim LR 52, the appellant sought to contend that this line of cases should be reviewed by referring to passages from Hansard during the debates concerned with what was enacted as the Firearms Act 1968. This Court reached the conclusion that the line of authority should not be reopened, stating as follows:

..we conclude that this matter is already governed by authority and it is authority which, if not binding upon us, as it probably is, we should, in any event, follow, regarding it as correct. We hold specifically that the line of authority should not be reopened even if reference is made to the Parliamentary debates in 1965 which have already been quoted.

The reasons given in Bradish for rejecting the availability of the defence for which Lord Gifford contends and the public policy referred to in the fifth reason, are equally applicable, whether the defendant contends that he did not know what was in a container or whether he contends that he thought what was in the container was something innocent, such as a violin rather than a sub-machine gun.

In any event, we consider that Lord Gifford is wrong in his submission that none of the firearms cases has dealt with a case such as the present where the defendant believes that the contents of the container were something innocent as opposed to simply not knowing what the contents were. In R vWaller [1991] Crim LR 381 the appellant was handed a green holdall by a friend, which the appellant took home, removing from it a black plastic bag which he then stored in his attic. The bag contained a sawn-off shotgun and cartridges. The defendant said that he had no idea what the bag contained but he thought that it was a crowbar or something like that, to do with a burglary. In rejecting any defence based on that assertion, this Court cited with approval the passage from Bradish which we have set out above and placed particular emphasis on the public policy considerations referred to in the penultimate paragraph of the quotation, of strict and rigorous control of the possession of firearms.

We can see no real distinction between the position of the defendant in Waller who said he did not know what was in the bag but thought it was a crowbar and the position of the appellant here who says that he thought the bag in question contained bolts or screws. If there is a distinction, it is a very fine one and certainly does not justify a completely different approach in this case from the strict approach taken in Waller and all the other cases. In this case as in that one, an examination of the inside of the bag would have revealed the true nature of the contents and we consider that this Court has consistently set its face against affording a defence to defendants in such circumstances. Accordingly, on the current state of the law, at least in this Court, Waller precludes the argument that a defence is available in a firearms case in Lord Gifford’s second category. This is the position notwithstanding the criticism levelled against the decision by Professor Smith in the Criminal Law Review to which our attention was drawn.

To the extent that Lord Gifford relies upon a passage in the judgment of this Court in R v Vann and Davis [1996] Crim LR 52 which seeks to suggest that the defendant may have a defence if he had a genuine belief that the article in his possession was something other than a firearm, that passage was expressly disapproved by the Court of Appeal in Deyemi:

In so far as the decision in Vann and Davis seeks to suggest that a defendant may have a defence if he did not know the “nature” of the object, we consider that it went too far. It was not, in any event part of the ratio decidendi of that case. It is based on the slender foundation of the obiter exposition of the effect of Warner by Lord Lane C.J. in McNamara which itself was based upon one short passage in Lord Pearce's speech. As Auld J. said in Bradish the Court's approach to “possession” under the 1968 Act, has been to take the more restrictive view of Lord Morris and Lord Guest, and has rejected the “half-way house” of which the “nature” concept clearly forms part. In any event, that concept produces real logical difficulties, as its context in Lord Pearce's speech demonstrates. Sweets seem to us to be of a different nature from heroin; but according to Lord Pearce believing that the heroin tablets were sweets would not provide a defence.

We do not accept Lord Gifford’s submission that the approach in Vann and Davis is more consistent with principle and authority and thus to be preferred to the reasoning in Deyemi. On the contrary, the reasoning in Deyemi is in line with the other authorities on the effect of sections 1 and 5. It is the passage in Vann and Davis which is out of line with the other cases and which if followed would give rise to the sort of logical difficulties Latham LJ identified in Deyemi. In any event, we note from the context of the passage in Vann and Davis relied upon, that the Court did not seem to think that such a defence of genuine belief that the contents of the container were innocent would be available to a defendant who had had an opportunity to discover what the contents in fact were. In the present case, the appellant had ample opportunity to ascertain the true nature of the contents of the bag, so that, in any event, even if the passage in Vann and Davis represented the law (which in our judgment it does not) the defence would not be open to this appellant. We note that the majority in the House of Lords in Warner in the passages upon which Lord Gifford relies, seem to have thought that the defence of genuine but mistaken belief as to the contents of the container would not be open to the defendant who had had an opportunity to ascertain its true contents.

Lord Gifford also relied upon a line of cases in the House of Lords culminating in R v K [2002] 1 AC 462 as demonstrating that there is a presumption that mens rea is an essential ingredient of every statutory offence, unless Parliament has indicated by express words or necessary implication that it should be excluded. As Lord Steyn put it in that case at paragraph 32, that is a “constitutional principle of general application”. We fully appreciate the force of that general principle but we are bound by the previous decisions of this Court that offences under sections 2 and 5 of the Firearms Act such as that committed by this appellant are ones of strict liability.

In so far as a distinction is sought to be drawn between the two counts in this case, it seems to us that once the inevitable conclusion is reached on the current state of the law relating to firearms, that the appellant had possession of the contents of the package when on his own case, he picked it up and put it in his jacket pocket, that must include the two bullets which on that case must have then fallen out of the package inside his pocket. It would no defence to seek to contend, as the appellant did, that two days later he was unaware they were in his pocket.

For all those reasons we consider that the learned judge was right to conclude that the appellant had no defence in law to the offences with which he was charged and the appeal against conviction must be dismissed.