R v Bradish
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS,MR JUSTICE AULD |
| Judgment Date | 28 July 1989 |
| Neutral Citation | [1989] EWCA Crim J0728-2,[1989] EWCA Crim J0728-5 |
| Judgment citation (vLex) | [1989] EWCA Crim J0728-18 |
| Docket Number | No. 914/4E1/88,No. 4491/4E1/88 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 July 1989 |
[1989] EWCA Crim J0728-18
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Watkins
Mr Justice Tudor Evans
and
Mr Justice Auld
No. 4491/4E1/88
MR JENKINS appeared on behalf of the Appellant.
MR W.C. BIRCH appeared on behalf of the Respondent.
Mr Tudor Evans cannot be here today. He has agreed the judgment which is about to be delivered by Mr Justice Auld.
On 18th July 1988, before Mr Assistant Recorder RJ Pearse-Wheatley sitting in the Crown Court at Acton, the appellant pleaded guilty to burglary and not guilty to possessing a prohibited weapon contrary to section 5(1) of the Firearms Act 1968. Counsel for the defence and for the prosecution sought a ruling from the Assistant Recorder at the outset of the trial on the question whether section 5 of the 1968 Act created an absolute offence or one that required proof of mens rea. The assistant recorder ruled that it created an absolute offence. The appellant thereupon changed his plea to guilty. He was subsequently sentenced, on 10th August 1988, to three months' imprisonment suspended for that offence, the sentence to be served consecutively to a 12 months suspended prison sentence for the burglary and another offence.
He now appeals against his conviction by reference from the Registrar of Criminal Appeals, on a point of law, on the ground that the assistant recorder erred in ruling that section 5 of the Firearms Act 1968 creates an offence of strict liability.
The facts were as follows. On 21st December 1987 the appellant was arrested in connection with another matter and taken to the police station. When he was searched, there was found in his jacket pocket a metal spray canister, marked in prominent letters "Force 10 Super Magnum CS". As that description indicated, it contained CS gas. He was asked, "Is this a CS gas aerosol, and he is alleged to have replied, "Yes, it is". He was then asked, "Do you know you are not meant to have this", to which he is alleged illegal to have replied, "Yes, I do". When he was interviewed later he told the police that he knew it was illegal to carry the CS gas canister in the street and explained that he had found it in a public house. It was accepted for the purpose of the ruling sought that CS gas was a noxious gas and that, with the canister, it was a prohibited weapon within the meaning of section 5(1)(b) of the Act.
After the assistant recorder's ruling and the appellant's change of plea, there was a Newton hearing to determine the appellant's state of knowledge of the canister. The assistant recorder found, contrary to the appellant's contention, that he had known the canister contained CS gas.
The issue for decision is whether section 5(1) of the Firearms Act 1968, creates an offence of strict liability.
It provides as follows:
"5(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers
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(a) any firearm which is so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty;
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(b) any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing;
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(c) Any ammunition containing, or designed or adapted to contain any such noxious thing.
The ambit of the offence is extended by section 57(1) of the 1968 Act, which provides as follows:
"In this Act, the expression 'firearm' means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes -
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(a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and
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(b) any component part of such a lethal or prohibited weapon; and
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(c) any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon;….".
In R-v-Clarke (1986) 82 Cr.App.R. 308 C.A., the Court of Appeal held that the words of section 57(1) are to be read into section 5(1). In that case, which concerned an incomplete sub-machine gun, the court held that it was nevertheless a prohibited weapon for two reasons, one of which was that the words of section 57(1)(b) were to be read into section 5(1)(a) with the result that it was an offence to possess any component part of a weapon designed or adapted for automatic fire. Whilst this appeal relates to an alleged offence under section 5(1)(b), which concerns weapons for the discharge of noxious liquid or gas, our decision as to whether the offence is absolute or requires mens rea covers all three categories in section 5(1)(a), (b) and (c). In the case of a firearm, the subject of section 5(1)(a), the question may arise in relation to some small part of an automatic weapon, perhaps not readily indentifiable as such on its own.
The Firearms (Amendment) Act 1988 has now, by section 1, considerably extended the categories of prohibited weapons falling within section 5.
The maximum penalty on indictment for an offence under section 5 is five years' imprisonment, or a fine, or both. It is also triable summarily.
There is no authority on the question whether an offence under section 5 of the 1969 Act is one of strict liability or requires mens rea. There is, however, authority on the same question in relation to the lesser offence under section 1(1) of the Act which makes it an offence for a person to possess, purchase or acquire a firearm unless he or she is authorised to do so by a current firearm certificate. That sub-section, so far as material, provides as follows:
"1(1)….it is an offence for a person -
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(a) to have in his possession, or to purchase, or acquire, a firearm to which this section applies without holding a firearm certificate in force at the time, or otherwise than as authorised by such a certificate;
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(b) to have in his possession, or to purchase acquire, any ammunition to which this section applies without holding a firearm certificate in force at the time, or, otherwise than as authorised by such a certificate, or in quantities in excess of those so authorised".
The maximum penalty on indictment for an offence under section 1 of the 1968 Act is three years' imprisonment and or a fine or, where committed in an aggravated form within section 4(1) of the Act, i.e. shortening the barrel of a shot gun, five years and/or a fine. It, too, is triable summarily.
Any consideration of an issue such as this must start with the frequently approved words of RS Wright J, in Sherras-v-De Rutzen (1895) 1 Q B 918, at page 921:
"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered".
In Warner -v- Metropolitan Police Commissioner (1968) 52 CR App.R. 373 the House of Lords held by a majority (Lords Morris of Both-y-Gest, Guest, Pearce and Wilberforce; Lord Reid dissenting) that section 1 of the Drugs (Prevention of Misuse) Act 1964 created an absolute offence. That provision read:
"(1) it shall not be lawful for a person to have in his possession a substance … specified in the Schedule to this Act…".
The case concerned a parcel of drugs which the appellant claimed he had assumed contained scent. At his trial at the Inner London Sessions the chairman directed the jury that if he had control of the parcel which in fact turned out to be full of drugs, the offence had been committed, and the fact that he had not known what the contents were would be relevant only in mitigation.
In Lord Morris's view, which he expressed at page 412, and with which Lord Guest agreed, it was sufficient for the prosecution to prove that a person knowingly had in his possession something which in fact was a prohibited substance, and that it was not necessary for the presecution to prove he knew the nature and quality of what he had. According to Lord Pearce, with whom Lords Reid and Wilberforce agreed, there was "a half-way house" in the form of a rebuttable inference of possession. He said at page 480:
"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. …. 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".
A recurring theme in their Lordships' speeches was that the dangerous subject-matter of the criminal legislation being construed – drugs – in conjunction with the plain words of the section creating the offence, indicated that the intention of the legislature was to relieve the prosecution of the need to prove guilty knowledge. The same can be said about legislation creating offences in relation to firearms. Thus, Lord Guest said, at page 421:
"Absolute offences are by no means unknown to our law and have been created inter alia in relation to firearms (Firearms Act 1937), and shotguns (Criminal Justice Act 1967, s.85), which Acts create serious offences. A common feature of these Acts and the Drugs Act is that they all deal with dangerous...
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