R v Howells
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROWNE |
| Judgment Date | 18 February 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J0218-10 |
| Docket Number | No. 3952/C/76 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 February 1977 |
[1977] EWCA Crim J0218-10
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Browne
Mr. Justice Donaldson
and
Mr. Justice Talbot
No. 3952/C/76
MR. C.J. SUMNER appeared on behalf of the Appellant.
MR. A. ROSE appeared on behalf of the Crown.
On the 2nd July 1976 the appellant was tried at Willesden Crown Court on an indictment containing five counts. The first four counts alleged that he was in possession of firearms without a certificate, contrary to section 1(1)(a) of the Firearms Act 1968. A fifth count charged him with possessing ammunition without holding a firearm, certificate contrary to section 1 subsection (1)(b) of the Act. He was convicted on the first count of possessing a Colt .31 muzzle loading percussion revolver without a certificate, but acquitted on all the other counts.
At the trial the appellant admitted that the revolvers, the subject of the first four counts, were firearms within the meaning of the Act and admitted that he did not hold certificates for them, but his defence was based upon provisions of section 58 subsection (2) of the Act which relates to antique firearms. It should be noted that in respect of the firearms, the subject of counts three and four, the Crown admitted that they were antiques. So far as count five was concerned, his defence was that the ammunition had been left in his possession by a friend.
The discovery of these firearms was made on 21st August 1975 when the police visited the appellant's flat and these revolvers were found there. At the trial evidence was given by a firearms expert as to the age of the revolver, the subject of the first count, and in his opinion it was a modern reporduction of a type which had been manufactured in 1860 or 1870. He did not think that this revolver, a reproduction, had been manufactured before 1951. The appellant's evidence was that he had bought it in 1974 for either £110 or £115 and that he thought that he was buying an 1862 or 1865 continental Colt. He called a Mr. Valencia, a gun dealer, who produced evidence to show that in June 1974 he had sold a Brevett Colt to the appellant for £110, though there seems to have been some doubt in his mind as to whether the revolver in question was the one which he had sold to the appellant.
There was however other evidence supporting the appellant that he had bought this gun from Mr. Valencia and a Mr. O'Dwyer gave evidence that he had seen the appellant buy this Colt from Mr. Valencia and that he considered it ID be a genuine 1860 Colt. Further it was the defendant's case that he honestly thought that what he was buying from Mr. Valencia was an antique firearm and that he bought it either as a curiosity or an ornament.
It is necessary now to refer to the relevant statutory provisions. Section 1 subsection (1) of the Act reads as follows: "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 firearm certificate in force at the time, or otherwise than as authorised by such a certificate…".
Section 58 subsection (2) reads: "Nothing in this Act relating to arms shall apply to an antique firearm which is sold, transferred, purchased, acquired or possessed as a curiosity or ornament."
The case for the prosecution on count one was that the firearm was not an antique, whereas the appellant's case was that it was an antique, but if it was not, it was a very good fake and that he honestly and reasonably believed it to be an antique and that it was a defence to the charge that he held such belief.
The learned Judge in directing the jury, having told them that the appellant was relying upon what he described as a special exemption contained in section 58 subsection (2) of the Act, then went on to direct them as follows: "Now I am not going to attempt to go to a dictionary and define for you what keeping something as a curiosity means and what keeping something as an ornament means. I am going to assume that you know perfectly well what that means. As to what an antique means, if one looks in the Oxford dictionary, one gets perhaps a little help on that because there are phrases there which claim that it means something in olden times, something old-fashioned, something of long-standing, something ancient, something of bygone days, but essentially it is going to be a matter for you; it is in your hands whether or not you decide whether one gun or other here is properly to be described as an antique firearm."
In relation to each of the firearms, the subject of counts one to four, the learned Judge said at page 8A: "If in relation to each one you are sure, having listened to all/the evidence, that one gun or other is not an antique, then in relation to that count and that gun that is really the end of the matter. If you are sure, and only if you are sure, that it is not an antique, then since he admits that it is a firearm, that he was in possession and that he had not a certificate, he would be guilty in respect of that particular count."
A little later on in his summing up at page 9H, the learned Judge said this: "Now, summarising it then from the point of view of the prosecution, the prosecution can establish the defendant's guilt if they can prove so that you are satisfied that a gun, one or other, is not an antique; that is the end of the matter;
It will be seen therefore that the Judge did not direct the jury that it was a defence for the appellant to have honestly believed on reasonable grounds that the gun that he purchased, the subject of count one, was an antique so that it was excluded from the provisions of the Act.
Mr. Sumner made a number of submissions. The first one related to section 58 subsection (2), and it was his contention that that subsection should be read as implying that it is subject to a subjective test or element, namely, that of honest and reasonable belief. In other words he submitted that the exclusion from the Act of antique Firearms includes those where the seller etc. or the possessor honestly and reasonably believed that the Firearm was an antique. One of the arguments put forward in support of this interpretation is based upon the words "possessed as a curiosity or ornament", which, it was submitted, indicates a subjective element.
A second submission related to section 1 of the Act, and it was that that provision was not one of strict liability and therefore there was a defence of honest and mistaken belief open to a person charged under that section. It was submitted in the alternative that if the Act was one importing strict liability, teen a person does not possess "a firearm" if he honestly and reasonably believes it to be an antique, as that would amount to possession of something which is of a different nature.
We will deal first with the submission in relation to section 58 subsection (2). That subsection excludes from the application of the Act certain firearms, namely, those which can be classed as antiques which are sold etc. or possessed as a curiosity or ornament. What was submitted by Mr. Sumner was that this exclusion from the Act, which was necessary to protect bona fide dealers in and collectors of antique firearms, would be substantially lost if a victim of a fake could not claim that he had an honest and reasonable belief that the firearm was an antique.
We are quite unable to accept this interpretation. This subsection relates to facts and not beliefs; what is excluded is that which is an antique which is sold or possessed as a curiosity or ornament. There is no room, in our opinion, for any other exclusions such as those firearms which are believed by the possessor to be antiques.
The real point of this appeal turns upon whether or not section 1 is absolute or "strict" in its application or whether it is necessary for the prosecution to prove mens rea. Mr. Sumner, on this aspect of the problem, put forward a number of propositions and drew the Court's attention to a number of authorities.
His first proposition was that mens rea or guilty knowledge is an essential ingredient of a criminal offence. He accepted that that presumption can be displaced by either the words of the statute or the subject matter dealt with by the statute. His next proposition was that the Court is entitled to look at the results that flow from prosecution and conviction; if a construction involving strict liability would result in the conviction of persons whose conduct could not in any way undermine the authority of the particular law, then strict liability is not intended. His next submission was that the absence of the word "knowingly" or any similar word in the description of the offence in the statute is of itself of little or no assistance in determining the proper construction of the statute. Another of his principal propositions was that the offence created by this Act does not fall into the category of regulatory offences, such as those for example of the selling of adulterated foods, where no mans rea in required. The real question, he submits, where there is a truly criminal offence, is whether the public interest requires, in the case of the particular crime charged, that there should be conviction without proof of mens rea.
Two principal authorities were relied upon by Mr. Sumner. The first was R. v. Warner (1969) 2 Appeal Cases 256 and the second, Sweet v. Parsley (1970) Appeal Cases 132. Dealing first with the case of Warner, their Lordships were concerned with an alleged offence of possession of drugs, contrary to the ...
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