Smith, R. v

LORD JUSTICE DAVIS:

Section 16 of the Firearms Act 1968, as amended, reads in the relevant respects as follows:

In the present case the appellant was tried on a count of possessing a firearm with intent under section 16 of that Act.

The prosecution case at trial was either that he had possession of the firearm himself intending to endanger life or that he had possession intending to enable another to endanger life. The judge directed the jury that it was not necessary for them all to be sure as to which alternative applied before they could convict; that is to say, he refused to accede to a defence request to give what is commonly known as a Brown direction in this regard (see R v Brown (1984) 79 Cr App R 115). The principal point arising on this appeal is whether the judge was wrong so to direct the jury.

The trial was conducted before His Honour Judge Grobel and a jury at the Inner London Crown Court. On a previous occasion the appellant had pleaded guilty to various counts of possession of a prohibited firearm, possession of expanding ammunition or ammunition held without a certificate and further counts of producing and possessing cannabis. The only count on the indictment on which he was tried thus was the count (count 1 on the indictment) of possessing a firearm with intent to endanger life, contrary to section 16.

On 2nd August 2013 he was convicted by the jury. In due course he was, by a combination of concurrent and consecutive sentences, sentenced to a total term of 9 years' imprisonment, of which eight-and-a-half years was imposed in respect of count 1.

He appeals against conviction by leave of the single judge. In addition, he renews his application for leave to appeal against conviction on a further ground, in respect of which leave had been refused by the single judge.

The background facts in summary were these. On the 12th July 2012 a search warrant was executed at an address in Kennington, South London. This was a one bedroom ground floor flat with an open plan kitchen and living room. The appellant lived on his own at this address. He was detained by police officers on that occasion as he left the property.

In the hallway cupboard officers found a rucksack which contained items in four separate plastic bags. These included a .38 Smith & Wesson revolver. It was loaded, containing three live rounds. It also had one blank chamber and one spent round in one of the chambers. In addition there was also a Brocock revolver which was the subject of the second count on the indictment. That was in a holster contained inside two plastic bags. Further, there was found a starter pistol and one fired .38 cartridge: neither of which were the subject of any proceedings.

In more detail, one of the officers had examined the contents of the rucksack. The first plastic bag contained a screw driver containing packs and other items. The next plastic bag contained a small rectangular shaped box. When she opened that box she saw what she believed was a box of small bullets all inside a plastic container. The bag also contained several black socks, some knotted at the end, and inside the socks there were more boxes of what appeared to be bullets and inside the box in another sock was the word "PRIMER". In the third plastic bag she saw the handle of what appeared to be a firearm in a holster. At that stage she stopped the search and matters were left to the arrival of the scene of crime officer. He in turn removed the weapon from the bag and then discovered another firearm in the same plastic bag. They were removed from the rucksack and underneath was another gun. These were duly made safe.

The Smith & Wesson revolver had been at the bottom of the bag, the Brocock in the middle and the Valtro starting pistol at the top. Expert evidence was given at trial explaining the workings of the various firearms. Among other things it was noted that the Smith & Wesson had a mechanical fault, in that the automatic ejection system was not working properly: which meant that once a round was fired it could not be fired again until the cylinder had been opened and the spent cartridge removed. It was accepted that there was no trace of the Smith & Wesson revolver on the database of gun crime.

In addition, the officers, after a search, found in the kitchen a latex glove in one of the drawers. This contained 5 unfired .38 cartridges, four of which were compatible with the Smith & Wesson revolver found in the rucksack. The other was a lead round nosed bullet. In another kitchen drawer again there was found a starter pistol (which did not attract any charge).

It was noted that there was a strong smell of cannabis in the flat and the appellant was asked by one of the officers about this. He then indicated that he had a cannabis operation in the garden which when examined showed that there were six mature plants and 11 seedlings in it.

When interviewed the appellant declined to answer any questions. But he did make an unsolicited comment at the start of the second interview in relation to the Smith & Wesson gun, saying that in no way did he harm anyone or mean to harm anyone.

When he gave evidence at trial the appellant said that the rucksack was not his. He said that shortly before Christmas 2011, an associate of his left the rucksack at his flat. He had known that man for about 20 years but would not consider him a friend and said that he did not know where he lived and had no contact number for him. He declined to attribute a name to this man, saying that he was fearful for his life; he referred to him as "Mr B". The appellant was to say in evidence that shortly after Christmas he had been tidying up and looked inside the rucksack before placing it in the cupboard. He then saw what appeared to be part of the gun. He decided to speak to Mr B but initially could not find him. When Mr B next visited the flat the appellant told him that he did not want guns inside his house; but according to him Mr B then swore at him and threatened him if anything happened to the gun. According to the appellant, Mr B had visited the flat again prior to July. He claimed that Mr B must have left the ammunition in the kitchen drawer on one such visit. He was to say that he did not know the Smith & Wesson revolver was in the rucksack; nor did he know that compatible ammunition was in the kitchen drawer. None of the guns or ammunition had any of the appellant's fingerprints or DNA recoverable from them.

At the close of the prosecution case Mr Bunting, on behalf of the appellant, made a submission of no case to answer. The judge, in a thorough ruling, rejected that submission. It is his rejection of that submission which is the subject of the renewed application. The judge having rejected that submission the appellant then gave evidence as we have recounted.

Thereafter, and as is usual and quite rightly so, there was a discussion between the judge and counsel before speeches. The judge had before this gone to the trouble of preparing his legal directions in writing and he provided them to counsel for discussion.

Mr Bunting, for the appellant, fairly accepted that the Crown had conducted the proceedings throughout on the basis either that the appellant possessed the firearm, himself intending to endanger life (which had very much been the Crown's primary case, they not accepting that Mr B even existed at all) or at all events that he had possessed it intending to enable another (viz Mr B) to endanger life. Accordingly, there was no complaint that the trial had been conducted in a way which had caused any surprise or disadvantage to the defence.

But the submission was made, at that stage, that a Brown direction was called for, having regard to the terms of section 16 of the 1968 Act. The judge declined to accept that submission.

On the contrary, when he came to sum-up, and as had been notified to counsel in advance, the judge, in the course of taking the jury carefully through the legal directions, said this. Referring to the legal directions and to what was said in the indictment, the judge stated:

Before turning to that ground of appeal, it is convenient to deal first with the renewed ground of application. Mr Bunting continues to maintain that there was no justification on the part of the judge for rejecting the submission of no case to answer.

In agreement with the single judge, however, we entirely reject that point. The judge gave full and ample reasons for his conclusion. He drew attention, amongst other things, to the fact that the Smith & Wesson revolver found in the rucksack was loaded and that there was one spent round in the chamber as well as an empty chamber. The gun was in working order and there was compatible live ammunition found in the appellant's kitchen. The judge noted also certain other relevant points. It is not necessary for us to say more. We are not in the slightest surprised that the judge expressed himself as having "little difficulty" in coming to the conclusion that the case should be left to the jury.

We turn then to the ground of appeal for which leave has been granted.

We should perhaps note in passing at the outset the form in which the statement of offence was framed in the indictment: framed, indeed, in an entirely conventional way. The statement of offence was this:

Mr Bunting's submission on behalf of the appellant can be shortly summarised. This was a case, he said, where the Crown was relying on both "limbs" (in his words) of section 16 of the 1968 Act. He submitted that "different intents" were contemplated by section 16 and thus the jury could only convict if the jury were, as a whole, agreed either as to whether the appellant intended to use the gun himself so as to endanger life or as to whether he was intending to transfer it to another to enable that other to endanger life. It was not enough, he submitted, if six of the jurors may have thought it was the one and six of the jurors may have thought it was the other.

If this is right it would, as a matter of practicality, potentially give rise to formidable obstacles for prosecutors in cases of this kind. In some cases under section 16, the Crown may be in a position to make clear which scenario they rely on. If so, no difficulty on any view arises. But there will be cases, of which the present is one, where the Crown simply may not be in a position to show precisely which of the two scenarios is necessarily the correct one, even if they are in a position to say to the jury it simply must be one or the other. If Mr Bunting's approach is right, however, the opportunities in such a situation for the defence team are clear. This was in fact a point which the judge understandably had referred to in the course of his ruling at the close of the prosecution case, when he rejected the submission of no case to answer.

So the question is whether principle or authority, particularly that of Brown, require such a conclusion. We are of the view that neither principle nor authority do require such a conclusion.

In our view, Brown itself is distinguishable from the present situation. In that case the prosecution was framed under section 13 of the Prevention of Frauds Investment Act 1958. That, amongst other things, required that:

In the course of giving the judgment of the court Eveleigh LJ said this, in a well-known passage, at page 119:

But that was a case where the particular statement was an essential ingredient of the offence. The making of such a statement, known to be false and having the necessary causative inducement, all had to be proved if the case was to be made out. Consequently the jury, as a whole, would have to agree that a particular statement of such a kind had been made. The means by which the alleged result arose was thus central to the case.

In the light of the decision in Brown there were a number of attempts subsequently in other cases to widen the principles laid down in Brown out to the circumstances of those other cases: in truth, in circumstances where those other cases were not really comparable. Indeed, in a number of such cases (for example R v Mitchell (1994) Crim LR 69), it was expressly stated by constitutions of this court that a Brown direction would only be necessary "in comparatively rare cases"; and juries should not be overburdened with unnecessary warnings and directions.

Moreover, there are decisions binding on this court which decide, in broad effect, that if a jury is sure that a result rendered criminal by the law is brought about by an accused with the necessary mens rea by one means or another then it is not always necessary in all cases for the jury to be sure precisely which of the alternative means was deployed. Thus, in R v Giannetto [1997] Cr App R 1, the Crown's case was that the defendant had either murdered his wife himself or had procured others to do so. On one view, each alternative involved a strikingly different factual position. But it was held - and this being on a point which had previously attracted some academic debate - that the fact that the prosecution was unable to say which of the alternatives scenarios was correct was not fatal to the prosecution case. The court, following the decision of constitutions of this court in other cases, including cases such as R v Gaugahan (1990) Cr App R 880, found that there were not here two separate offences in the circumstances arising. Kennedy LJ, in giving the judgment of the court in Giannetto said this in the course of his judgment, at page 8F:

A corresponding approach was taken in the subsequent case of R v Tirnaveanu [2007] 2 Cr App R 23. The court there considered the case of Brown and other cases. Tirnaveanu itself involved a count whereby the defendant, a solicitor, was charged with making or procuring the making of a false instrument contrary to section 1 of the Forgery and Counterfeiting Act 1981. The court in that case, following Giannetto and other such cases, held that whether the defendant was a principal or a secondary party was not critical. The jury was entitled to convict if they were satisfied that the defendant committed the offence, either as principal or as a secondary party.

Citing authority, the court decided that a Brown direction may be necessary where there are two or more clear alternatives open to the jury in circumstances where there was a relevant material difference as to the issues and therefore as to the basis on which the jury might convict. In Tirnaveanu itself however, there was no relevant difference between the alternative situations. On the prosecution case the defendant there either made the false instrument as principal or, if not, it must be the case that he procured its making. As Thomas LJ, giving the judgment of the court, at paragraph 49 said:

A corresponding approach had been taken in the early case of R v Ibrahima [2005] Crim LR 887, a case of possession of drugs with intent to supply.

Turning to the present case, obviously a prosecution under section 16 of the 1960 Act involves proof of a specific intent. We can see the argument that the alternatives stated in the section are thus not simply as to the means by which the offence is committed or as to whether the offender is a principal or secondary party. In the present kind of case however, while accepting that the defendant's state of mind as possessor is critical, we consider it to be entirely an ancillary matter as to whether the possessing with intent involved the defendant intending himself to endanger life, or whether the possessing with intent involved the defendant intending to enable another to endanger life. There are not two separate offences under section 16 appropriately charged as two different counts. There is in substance one offence, albeit capable of being satisfied on two different scenarios: the central unifying factor for each limb being possession with intent that life be endangered.

The gravamen of the section, reflected indeed in the wording of the statement of offence on this indictment, thus is possession of a firearm with intent to endanger life. By whom the life is to be endangered, if such an intent is formed, is thus in practical terms a matter extending essentially to the mechanism which might be involved in life being endangered. In the language of Thomas LJ this is not a "relevant difference."

We accordingly do not accept Mr Bunting's submission that the section contemplates "different intents" in any material sense for the purposes of this particular point. Accordingly, there was no need for any unanimity in that regard on the part of the jury, so long as the whole jury were sure that it was one or the other: in that, if it was not the one it simply must be the other. That was the effect of the direction which the judge had given in his summing-up and we think that he was right. Any contrary conclusion indeed would, in practical terms, be most disconcerting.

We therefore dismiss this appeal. The judge's directions were justified and the conviction was safe. It follows that in section 16 cases of this particular kind it is neither necessary nor appropriate, in the ordinary way, for a trial judge to give a Brown direction.

There was also, we add, on the papers a possible renewed application with regard to sentence. Mr Bunting has fairly indicated that he could not pursue that if the appeal failed, as it has. The sentence was plainly a justified one. In so far as that application continues to be before us, that also is refused.