R v Kelt
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCARMAN |
| Judgment Date | 02 May 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J0502-4 |
| Docket Number | No. 3556/B/76 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 May 1977 |
[1977] EWCA Crim J0502-4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Roskill
Lord Justice Scarman
and
Mr. Justice Forbes
No. 3556/B/76
MR. H. GRUNWALD appeared on behalf of the Appellant.
MR. D.P. MILLER appeared on behalf of the Crown.
Stephen Kelt appeals against his conviction under section 18 of the Firearms Act 1968, of the offence of having with him a firearm with intent to commit an indictable offence. He submits through Mr. Grunwald that that section is to be interpreted upon the basis that "having with him" means "carrying": alternatively, in case that should be wrong, that "having with him" is to be distinguished from "possession" and that the learned Judge in summing up the case to the jury failed to give an adequate or indeed any direction as to the distinction between possessing a firearm and having a firearm with him.
Kelt appeared at the Central Criminal Court on 21st June 1976 when he pleaded guilty to robbery, a firearm offence and to being carried in a motor vehicle which had been taken without the authority of the owner. He pleaded not guilty however to a section 18 offence. On 1st July, after a trial before Judge Clarke and a jury, he was convicted of the section 18 offence, and on that day was sentenced, on the various counts to which he had either pleaded or in respect of which he had been convicted, to a total term of ten years' imprisonment. Upon the count under section 18, having a firearm with intent, he was given two years' imprisonment concurrent with the total of ten years for the robbery. His appeal therefore has a certain academic flavor, since, even if he is successful, the term of ten years' imprisonment will remain unimpaired and undiminished.
The offences were these. On 14th October 1975 the appellant and another man robbed a Securicor Guard of £7,900 outside the National Westminster Bank inthe Barking Road. On that adventure the appellant carried a sawn-off shotgun, whilst his companion had bolt cutters with which he snipped the chain attaching the money bag to the guard's wrist.
A few days' later police went to the address of a man called Mohan, where they found a robber's kit, comprising among other things a sawn-off shotgun and a pair of bolt croppers. The appellant subsequently admitted that the sawn-off shotgun then found had been used on the robbery. There was forensic evidence to show that the bolt cutters then discovered in that kit had been used to cut the guard's chain.
Some months later, on 15th January 1976, the police went to the appellant's home, arrested him and searched the premises. It is not absolutely clear, but it would appear that the appellant was in bed and got out of bed when the police arrived and it would appear that he was arrested in the kitchen. Whenthe police searched the kitchen, they found a holdall containing a robber's kit, a kit which in the course of the trial was called Kit No. 2. This holdall contained a sawn-off shotgun, some bolt croppers, some ammunition, some woolen hats and gloves and a squeezy bottle containing ammonia. When the appellant was asked about this kit he agreed that it was a complete robber's kit, but said that he was looking after it for a friend. There was no evidence other than that to which I have already briefly referred.
At the conclusion of the prosecution case, on the count charging Kelt with having with him on 15th January a firearm with intent to commit an indictable offence, his counsel submitted that there was no case to go to the jury. On the basis that no more could be proved than the matters to which I have referred, he submitted that there was here no evidence that Kelt was carrying a firearm with criminal intent. The learned Judge ruled that there was a case to go to the Jury, and it is that ruling which is the subject matter of Grunwald's first submission in this appeal.
Mr. Grunwald submits that upon this evidence there was no "carrying of the firearm" and that "having a firearm with him" where those words are used in the section, means carrying. The submission was overruled and the matter was left to the jury. In the course of the summing up the learned Judge, as it seems to this Court, allowed the jury to think that there was no distinction between possession and "having a firearm with him".
Mr. Grunwald's second submission was that if such were the direction which the Judge gave to the jury, then that also was wrong in law. We look first at the submission that the offence created by section 18 is one of carrying with criminal intent.
Section 18 appears in that part of the Firearms Act 1968 concerned with the prevention of crime and the preservation of public safety. A number of sections in that part of the Act create a number of offences and in order to construe properly section 18, it is necessary, in our judgment, to have in mind the scheme of those offence-creating sections. They are sections 16 to 24 inclusive. It will be observed in regard to these sections that the draftsman hadin mind throughout that there was a clear distinction between possession and having a firearm with one.
Section 16 makes it an offence for a person to have in his possession of a firearm with intent by means thereof to endanger life. Section 17 makes it an offence for a person to make or attempt to make any use whatever of a firearm with intent to resist or prevent arrest. Section 18, to which I have already referred, makes it an offence for a person to have with him a firearm with...
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