R v Danny Deyemi

JurisdictionEngland & Wales
JudgeLord Justice Latham
Judgment Date13 August 2007
Neutral Citation[2007] EWCA Crim 2060
Docket NumberCase No: 2006/3566 C2 & 2006/3567 C2
CourtCourt of Appeal (Criminal Division)
Date13 August 2007

[2007] EWCA Crim 2060

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Latham

Mr Justice Pitchford and

Mr Justice Royce

Case No: 2006/3566 C2 & 2006/3567 C2

Between
R
Appellant
and
Danny Deyemi Annie Edwards
Respondents

Justin Bearman (instructed by CPS Harrow (at Collindale)) for the Prosecution

Anand Beharrylal (instructed by Registrar of Criminal Appeals) for the Appellants

Hearing dates: 5 th July 2007

Judgement

Lord Justice Latham
1

On the 8 th June 2006 the appellants pleaded guilty to a single count of possessing a prohibited weapon contrary to Section 5(1)(b) of the Firearms Act 1968. They did so following a ruling by the judge to the effect that the offence was one of strict liability. The position was that the appellants had been stopped and searched. An electrical stun-gun was found, that is a weapon discharging electricity through electrodes. In it was positioned a lens and a bulb. The appellants' account was that they believed it to be a torch. Having heard them give evidence in a “Newton” hearing, the judge, though stating that to her it did not look like a torch and looked like a pretty nasty weapon, found that the appellants did not know that it was a stun gun. She accordingly sentenced each of them to a conditional discharge for a period of twelve months.

2

The judge's ruling was in the following terms:

“Although it does offend one's sense of justice to exclude mens rea from an offence so a defendant can be guilty of being in possession of something when he knows he is in possession, if it is a prohibited article, albeit he thinks it is something different, and that view is not unreasonable, having regard to its appearance and usage. I am satisfied that that is the state of affairs Parliament intended to create in making the offence one of strict liability, and I so find.”

3

Mr Beharrylal, in his clear and helpful skeleton argument and submissions, accepts that the relevant statutory provisions, have, so far, been interpreted by the courts so as to impose what has been described as strict liability. He submits, however, that these authorities are not, when analysed, entirely satisfactory. As a result, he submits, this court should now revisit the proper interpretation of the section bearing in mind, in particular, what he describes as a change in legal climate represented by the cases of B v Director of Public Prosecution [2000] 2 AC 428; R v K [2001] 3 All ER 897; and R v G [2004] 1AC 1034. Further, he submits, both Articles 6 and 7 of the European Convention on Human Rights support the proposition that the relevant statutory provision should not be read so as to impose strict liability.

4

On behalf of the respondent, it is submitted that there is no reason to go behind the extant authorities on the meaning of the section in question. The decisions of this court are clear and are binding. The European Convention on Human Rights has no relevance in this context in determining the content of domestic law which has been clearly established by the courts. There is a clear and justifiable social purpose in imposing strict liability in relation to offences involving firearms.

5

The starting point must be the relevant statutory provisions themselves. Although the offence with which we are concerned is an offence under section 5 of the Firearms Act 1968 (the 1968 Act) it is necessary to set out the terms of section 1, which has been the subject matter of a number of the relevant authorities.

6

Section 1 provides so far as is relevant;

“(1) Subject to any exemption under this Act, it is an offence for a person –

(a) to have in his possession or to purchase or acquire, a firearm to which this section applies without holding a firearms certificate in force at the time, or otherwise than as authorised by a certificate;

……”

7

Section 5 provides, so far as is relevant:

“(1) A person commits an offence if, without the authority of the Defence Council …. he has in his possession …….

(b) any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing; ….”

8

The offences described in section 1(1) and 5(1) are accordingly defined by reference to “possession” of the prohibited articles. They have clear analogies therefore, with offences in relation to drugs. And the authorities to which we will have to refer in relation to the 1968 Act, made reference one way or another to the decision of the House of Lords in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 which was a decision in relation to section 1 of the Drugs (Prevention of Misuse) Act 1964. Section 1 of that Act provided:

“It shall not be lawful for a person to have in his possession a substance specified in the Schedule to this Act…..”

9

The decision in Warner (supra) has been the subject of much criticism and in his commentary to R v Steele [1993] Crim L. R. page 298 at page 300 Sir John Smith said:

“The snag is that the citation of Warner will continue to plague the courts unless and until someone in authority is bold enough to declare it dead.”

10

The reason for the difficulty in determining for what propositions Warner 9supra)can be authorative is that although the head note asserts that, Lord Reid dissenting, the offence was “absolute” it was only absolute in the sense that the prosecution merely had to prove possession of the relevant drug. Their Lordships were not ad idem about the meaning to be ascribed to the word “possession”. Hence the difficulties to which we will have to return.

11

In Howells (1977) 65 Cr App R 86, the appellant was charged with possessing a firearm in respect of which he had no firearms certificate, contrary section 1(1) of the 1968 Act. His defence was that he honestly believed when he bought the firearm in question that it was an antique, which he possessed merely as a curiosity or ornament, and accordingly was exempt from the need to obtain a certificate pursuant to the provisions of section 58(2) of the 1968 Act. This court held, applying Warner (supra) that even if he honestly and reasonably believed that it was a genuine antique, he had custody and control of the article and was therefore in possession of it for the purposes of the 1968 Act.

12

In Hussain (1981) 72 Cr. App R 143 the appellant was charged, again under section 1 (1) of the 1968 Act, with possessing an 8” metal tube with a striker pin activated by a spring capable of firing .32 cartridges. The judge directed the jury that if they found that this item was a firearm as defined by section 57 (1) of the 1968 Act, he was guilty of the offence even though he did not know it was a firearm. He was convicted. This court upheld the conviction, again relying on Warner (supra) on the basis that the appellant knowingly had in his possession an article which was in fact a firearm. Accordingly he was guilty of the offence.

13

This approach has been applied consistently by this court since Hussain (supra). In Bradish (1990) 90 Cr App R 271, where the appellant was found with a canister which contained CS Gas, this court held that it could 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 CS Gas. In Waller [1991] Crim LR 381, the appellant was found with a sawn off shot-gun which was in a black plastic bag. His defence was that he did not know what was in the bag, but thought it might have been a crow-bar. The judge directed the jury that it was not necessary to prove that the appellant knew what was in the black plastic bag. This court dismissed the appeal on the basis that public policy behind the fire arms legislation was to impose rigorous control, and in the absence of express provision in the 1968 Act allowing consideration of a defendant's state of mind, there was no room for a defence of “innocent possession”. In Steele (supra) to which we have already referred in paragraph 9 above, this court refused leave to appeal against conviction. The defendant had been found in possession of a holdall in which there was a sawn-off shot-gun. His account was that he had only been given the holdall a few minutes before the arrival of the police and had had no time to examine or become aware of its contents. The court considered that it was bound by the authorities to which we have so far referred to hold that that provided him with no defence.

14

Mr Beharrylal, however, submits that there is one authority which opens up the possibility of a defence in circumstances such as the present. That is the decision of this court in Vann & Davis [1996] Crim LR 52. The appellant had been convicted of an offence under section 19 of the 1968 Act, of having with her a firearm in a public place. She was arrested at an airport where she was meeting a man carrying cocaine. As she was led away, she threw away a handbag in which was found a loaded pistol. Her case was that two men had given her a parcel two days previously. She knew it was in her handbag but did not know what it was. When she was arrested, she was asked whether she was armed, and immediately thought that the parcel might contain a firearm which is why she threw it away. The judge summed up on the basis that the section created an absolute offence and her knowledge or lack of knowledge as to whether the article was a gun was irrelevant as a matter of law. Unfortunately, we do not have a transcript of the judgment, but the report in the Criminal Law Review indicates that there had been wide ranging argument over the true meaning of Warner (supra), in particular as...

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9 cases
  • Orette Williams v The Crown
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 11 Diciembre 2012
    ...cases of possession of a prohibited firearm: see, for example, decisions of various constitutions of this court in Deyemi and Edwards [2007] EWCA Crim 2060, [2008] 1 CAR 25; Zahid [2010] EWCA Crim 2158; and Gregory [2011] EWCA Crim 1712. 22 The general principle is that a statutory provisio......
  • R v G; R v J
    • United Kingdom
    • House of Lords
    • 4 Marzo 2009
    ...UKHL 25; [2002] 1 AC 45; [2001] 2 WLR 1546; [2001] 3 All ER 1; [2001] 2 Cr App R 351, HL(E)R v Boutrab [2005] NICC 36R v Deyemi [2007] EWCA Crim 2060; [2008] 1 Cr App R 345, CAR v F [2007] EWCA Crim 243; [2007] QB 960; [2007] 3 WLR 164; [2007] 2 All ER 193; [2007] 2 Cr App R 20, CAR v Glide......
  • R v Z
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 11 Noviembre 2009
    ...to drugs possession, he submitted, should apply to the Firearms Act. 13 Lord Gifford does not accept that the decision of this court in R v Deyemi [2008] 1 Cr.App.R 25 provides the answer, although the same issues appear to have risen on the question of the mens rea required for section 5 o......
  • R v Zahid (Nasir)
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 18 Noviembre 2010
    ...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. 9 Lord Gifford seeks to avoid the conclusion that the arguments he raises have all been determin......
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3 books & journal articles
  • Court of Appeal
    • United Kingdom
    • Journal of Criminal Law, The No. 75-1, February 2011
    • 1 Febrero 2011
    ...that the appellantthought that he was able to persuade the court that this was not a crimeof strict liability. In R vDeyemi [2007] EWCA Crim 2060, the Court ofAppeal had rehearsed the previous case law and concluded emphaticallythat s. 5 was a crime of strict liability. In doing so, the Cou......
  • Strict Liability and the Reasonable Excuse Defence
    • United Kingdom
    • Journal of Criminal Law, The No. 76-4, August 2012
    • 1 Agosto 2012
    ...ingredient unless Parliament hadindicated a contrary intention expressly or by necessary implication.Subsequently, in R v Deyemi [2007] EWCA Crim 2060, [2008] 1 Cr AppR 25, the Court of Appeal applied this statement as the correct pathwayto follow in deciphering whether strict liability (or......
  • The Unlawful Possession of a Prohibited Weapon and the Crown Servants’ Exemption
    • United Kingdom
    • Journal of Criminal Law, The No. 86-4, August 2022
    • 1 Agosto 2022
    ...has subsequently been extensively quoted from, and applied by differentlyconstituted Courts of Appeal: see R v Deyemi and Edwards [2007] EWCA Crim 2060, and R v Zahid[2010] EWCA Crim 2158. Thus, in the former, Latham LJ remarked that “it would appear thatParliament intended to impose a drac......

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