R v Zahid (Nasir)

JurisdictionEngland & Wales
JudgeMr Justice Flaux,LORD JUSTICE HOOPER
Judgment Date18 November 2010
Neutral Citation[2010] EWCA Crim 2922,[2010] EWCA Crim 2158
Date18 November 2010
CourtCourt of Appeal (Criminal Division)
Docket NumberNo: 2010/2324/B4,Case No: 2009 4156 B5

[2010] EWCA Crim 2158

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS

HHJ Pillay

Before: Lord Justice Hooper

Mr Justice Flaux

and

Mr Justice Spencer

Case No: 2009 4156 B5

T220080541

Between
Nasir Zahid
Appellant
and
R
Respondent

Lord Gifford QC and Mr. S. Rustom (instructed by Chambers Solicitors, Bradford) for the Appellant.

Mr. R. Jory (instructed by Crown Prosecution Service) for the Respondent.

Hearing date: 14 th September 2010

Mr Justice Flaux

Mr Justice Flaux:

1

On 20 November 2009 before HH Judge Pillay at Blackfriars Crown Court, the appellant pleaded guilty to two counts of possession of expanding ammunition contrary to section 5(1A)(f) of the Firearms Act 1968. He did so following a ruling by the learned judge that the offences were ones of strict liability where all the prosecution had to prove was possession of the ammunition and that it was no defence that the appellant believed that the ammunition was some other innocent material. Accordingly the judge held that there was no defence available to the appellant as a matter of law.

2

The relevant facts were essentially agreed and can be stated briefly as follows. On 25 January 2008, the appellant was arrested for non payment of a road traffic fine. He was searched using a metal detector and two bullets were found in the inside breast pocket of his jacket. He told police that they must have been left over from when he was shooting on a range in Dubai and he had not realised they were there. When police searched his house, they found a package of brown paper with adhesive tape round it containing 38 bullets of the same type inside a Gucci washbag on a shelf in his study. All the bullets were live and were designed to expand on impact. His DNA was not found on any of them.

3

In interview, he said that he had found the package outside his front door on the morning of 23 January 2008. He had put it inside the breast pocket of the jacket he was wearing, which was the same jacket as he was wearing when arrested two days later. That afternoon, he had placed the package inside the washbag in the study. He said that he believed it to contain bolts or screws left by workmen who were working at his house repairing windows and doing various remedial work. He did not know that the package contained ammunition or that anything had fallen out of his pocket. When told that the package contained ammunition, he believed that it was linked to the kidnap plot against him.

4

This was a reference to the fact that the appellant had been subject to a kidnap plot in April 2007. On 1 May 2007, the defendants in the kidnap case were arrested and remanded in custody. In October 2007, Thames Valley Police warned the appellant of a further threat, although at the subsequent Newton hearing referred to below, evidence was given by the officer in charge at the trial of the kidnappers that none of them had known the appellant's home address. Five men were convicted of conspiracy to kidnap in March 2008, one of whom had previously admitted possessing ammunition without a certificate.

5

Following the judge's ruling that there was no defence available to the appellant in law, the appellant lodged a basis of plea which was not accepted by the Crown. Accordingly, a Newton hearing took place on 24 March 2010, at which the appellant repeated the explanation for possession of the ammunition which he had given in interview. In his ruling on 26 March 2010, the learned judge roundly rejected the appellant's explanation and evidence. He found it “utterly improbable” that the appellant would have picked up a package outside his house, thinking it to be nuts and bolts and then placed it in the inside pocket of his jacket without examination, attend business meetings for four or five hours, then gone home and placed it in a washbag, again without examination. The judge also found it improbable that two bullets would have spontaneously dropped out of the bag or slipped into his pocket.

6

Accordingly, the judge held that the appellant fell to be sentenced on the basis that he knew that the package in the washbag contained bullets and that he knew there were two further bullets in his jacket pocket. On that basis the judge sentenced him to 30 months imprisonment concurrent on each count.

7

The appellant's application for leave to appeal against conviction and sentence was referred to the Full Court by the Registrar of Criminal Appeals. The application for permission to appeal was lodged on 22 April 2010, in time so far as sentence was concerned, but 4 months out of time so far as conviction was concerned. The reason for the delay was that the appellant wanted to know the outcome of the Newton hearing and the sentence hearing before deciding whether to fund an application for permission to appeal privately. In the particular circumstances of the case, we gave permission to appeal both conviction and sentence. At the hearing on 14 September 2010 we dismissed the appeal against sentence and gave our reasons. We indicated that the appeal against conviction would also be dismissed but that we would give our reasons later. This judgment sets out those reasons.

8

Before this Court as before the learned judge, the appellant was represented by Lord Gifford QC who presented a well-reasoned and eloquent argument in support of his client's case. In both his written and oral submissions, Lord Gifford sought to distinguish a number of previous decisions of this Court which have determined that offences under sections 1 and 5 of the Firearms Act are strict liability offences and that there is no scope for a defence based upon passages in the speeches of certain of their Lordships in Warner v Commissioner of Police of the Metropolis [1969] 2 AC 256 that although the defendant was physically 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 determined against his client by previous decisions of the Court of Appeal by contending that a distinction should be drawn between two different factual situations in cases such as the present involving the relevant firearm or ammunition being in a “container”: (i) cases where the defendant's case is that he was unaware of the contents of the relevant container and (ii) cases where the defendant's case is that he believed that the contents of the container were something innocent, in the sense that the defendant believed that the contents of the container were something other than a firearm and/or ammunition.

10

Lord Gifford contends that support for such a defence being available in cases falling into the second category is to be found in the speech of Lord Pearce in Warner (with which Lords Reid and Wilberforce agreed). Warner was of course a drugs case but Lord Gifford submits that the principle to be derived from that case should be equally applicable to firearms cases.

11

The passage in Lord Pearce's speech on which he relies in particular deals with the problems surrounding possession of the contents of a container. At 305, Lord Pearce said this:

“On the other hand, I do not think Parliament intended to make a man guilty of possessing something when he did not know that he had the thing at all and it is there that the real difficulties begin.

Lord Parker C.J. [in Lockyer v Gibb]( [1967] 2 Q.B. 243, 248) was right (and this is conceded by both sides) in taking the view that a person did not have possession of something which had been “slipped into his” bag without his knowledge. One may, therefore, exclude from the “possession” intended by the Act the physical control of articles which have been “planted” on him without his knowledge. But how much further is one to go? If one goes to the extreme length of requiring the prosecution to prove that “possession” implies a full knowledge of the name and nature of the drug concerned, the efficacy of the Act is seriously impaired, since many drug pedlars may in truth be unaware of this. I think that the term “possession” is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general understanding of the word “possess.” Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets. This would be so I think even if I believed them to be sweets. It would be otherwise if I believed them to be something of a wholly different nature. At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury who would probably decide it sensibly in favour of the genuinely innocent but against the guilty.

The situation with regard to containers presents further problems. If a man is in possession of the contents of a package, prima facie his possession of the package leads to the strong inference that he is in possession of its contents. But can this be rebutted by evidence that he was mistaken as to its contents? As in the case of goods that have been “planted” in his pocket without his knowledge, so I do not think that he is in possession of contents which are quite different in kind from what he believed. Thus the prima facie assumption is discharged if he proves (or raises a real doubt in the matter) either...

To continue reading

Request your trial
5 cases
  • Orette Williams v The Crown
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 11 Diciembre 2012
    ...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 provision imposing strict liability does not of itself nec......
  • R v Thomas Dennis Gregory
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 30 Junio 2011
    ...a firearm certificate is an offence of strict liability. The authorities are consistent and numerous. They are conveniently summarised in R v Zahid [2010] EWCA Crim 2158, adopting R v Deyemi and Edwards [2008] 1 Cr App R 25. In Zahid this court certified that a point of law of general publi......
  • R v Pedro Dias
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 13 Enero 2016
    ...the object was a weapon prohibited by the Act. The principles in that case were approved and explained further by this court in Zahid [2010] EWCA Crim 2158 and in Gregory [2011] EWCA Crim 1712. We are not persuaded that it is even arguable that a distinction is to be drawn between joint pos......
  • R v Michael Tinarwo
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 27 Junio 2014
    ...done with malicious intent on the part of the person responsible for putting it there. 7 Faced with authority of this court, Zahid [2010] EWCA Crim 2158 and Gregory [2011] EWCA Crim 2172, which emphasised that the offence under section 5(1)(aba) was one of strict liability, the justificatio......
  • Request a trial to view additional results
10 books & journal articles
  • The Licensing of Section 1 Firearms and Ammunition
    • United Kingdom
    • Wildy Simmonds & Hill The Firearms Law Handbook - 8th Edition Contents
    • 29 Agosto 2019
    ...accepted you had no idea it was a firearm you might well be absolutely discharged. This principle was repeated in Nasir Zahid v R [2010] EWCA Crim 2158, 2010 WL 3807980. 33 R v Vann & Davis [1996] Crim LR 52, CA. Firearms dealers 3.23 The purchase, hiring, accepting as a gift, borrowing or ......
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill The Firearms Law Handbook - 8th Edition Contents
    • 29 Agosto 2019
    ...The Times , 16 June, CA 50 R v Yong [2015] EWCA Crim 852, [2015] 2 Cr App R 15, [2015] All ER (D) 216 (Jun) 7 R v Zahid (Nasir) [2010] EWCA Crim 2158, [2010] All ER (D) 30 (Oct), [2010] 10 WLUK 31, 2010 WL 3807980 46 Table of Cases xxi R (Hucklebridge Engineering Ltd) v Chichester Crown Cou......
  • Court of Appeal
    • United Kingdom
    • Journal of Criminal Law, The No. 75-1, February 2011
    • 1 Febrero 2011
    ...of thenature of such notices.Christopher J. NewmanThe Journal of Criminal Law22 Possession of Bullets and Strict LiabilityR vZahid [2010] EWCA Crim 2158Keywords Firearms; Bullets; Mens rea; Strict liabilityThe appellant (Z) pleaded guilty to two counts of possessing expandingammunition cont......
  • 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
    ...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 draconian prohibition on the possessio......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT