Uddin, R. v [2005] EWCA Crim 2653

Case No 200404156 C3[2005] EWCA Crim 2653
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 6th September 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE JACK
MR JUSTICE DAVID CLARKE
Between
R E G I N ACrown-v-
Between
NAZIM UDDIN
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR W JORDASH appeared for APPELLANTMR T PROBERT-WOOD appeared for CROWN
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

Mr Justice Jack will give the judgment of the Court.

[2]MR JUSTICE JACK: On 24th June 2004 in the Crown Court at Southwark, the appellant Nazim Uddin was convicted of an offence of possession of a firearm with intent to endanger life contrary to Section 16 of the Firearms Act 1968. It resulted in a sentence to 5 years' imprisonment. The appeal against his conviction is by leave of the full court, after leave had been refused by the single judge.[3]The appellant was one of four defendants who faced charges arising from a police operation which concentrated on the activities of the two main defendants, Powell and Motileb. Motileb converted firearms intended to fire blanks so that they could fire live ammunition, Powell found the buyers for the converted weapons. Powell and Motileb were convicted of various counts relating to firearms. The appellant was alleged to be a buyer of one firearm. The fourth defendant, Philips, was acquitted of the single count that he faced.[4]The evidence against the appellant was in summary as follows. On 10th December 2003 he telephoned Powell on three occasions. The police then saw him leaving his home address and heading for a car park close to where Powell worked. A short time later, the police saw Powell leaving his home, and also heading for that car park. The appellant drove into the car park. He got out and met Powell in front of some garages. A police officer, Detective Sergeant Waller, saw Powell show the appellant a white carrier bag, and both Powell and the appellant looked at the bag while Powell held it. The officer described the incident as happening quickly. The two men were talking, but he could not hear them. He said the bag was substantial with something heavy in it. The officer could not tell if the appellant was looking into the bag, although he deduced that the discussion was about its contents. Plain clothed officers then approached and the appellant ran away. Powell dropped the bag near some old tyres in front of the garages, and was arrested in the car park. The appellant was caught after a chase. The bag was found to contain a black 'Valtro' handgun wrapped in newspaper and ten rounds of ammunition. The gun was a prohibited weapon. On his arrest, the appellant was found to be in possession of £430 in bank notes.[5]The main ground of appeal is that the evidence of Detective Sergeant Waller did not provide any foundation for saying that the appellant ever had possession of the gun in the bag which Powell carried. That was the subject of a submission made to the judge, following the sending of the case by the magistrates to the Crown Court. It was heard on 5th March 2004. The trial was to take place between 7th and 24th June.[6]The submission was made on the basis of the statement of Detective Sergeant Waller. As quoted by the judge, that read as follows:
"[He saw Powell and Uddin] ... standing together in the car park in front of the garage. I saw Powell take from inside his jacket what appeared to be a white plastic bag. The bag was quite substantial in size and clearly contained something quite heavy. Powell showed the bag to Uddin and was holding it in both hands. Powell was standing closest to three tyres which were on the ground in front of the garage. I was standing close by him. I was slightly closer to the general entrance of Hollyhead Close."
Then the decision was made to arrest them and to examine what was in the bag.[7]In giving his ruling, the judge referred to the two elements required to establish possession in law which he put as " ... knowledge of the general nature of the thing possessed" and, here, the control of the contents of the bag. As to the issue of knowledge, he said that the jury could possibly infer from the circumstances that the appellant knew what was in the bag when it was opened to him. He then turned to the question of control and concluded that there was evidence on which the jury, properly directed, could conclude that the appellant had control over what was in the bag. He said:
" ... in my judgment, it is an interpretation that a reasonable jury properly directed could reach that he was in control at that point of that gun together with Mr Powell."
[8]At the conclusion of the prosecution case a submission was made to the judge in similar terms and was rejected by him, but we do not have a transcript of that second ruling.[9]In his summing up to the jury,

the judge put the issue to them as follows:

"In the case of Mr Powell and Mr Motileb, possession is admitted because each of them has pleaded guilty to Count 6 which is possessing that firearm. In Mr Uddin's case it is different because it is very much in dispute whether he was in possession. The prosecution have to prove that he was in possession. If you are not sure that Mr Uddin was in possession of that gun, in the sense in which I have described, that he had control and knowledge of it, then he cannot be guilty ..."
The judge had previously directed that the first ingredient of possession was control. In due course, he came to sum up the evidence of Detective Sergeant Waller. It was broadly along the lines of the statement which we have already quoted.[10]As a matter of completeness, we should perhaps mention that in addition to the money that the appellant was found to have on him when he arrived, he had previously paid Powell two sums: one of £60 and one of £150. He said that they were for the repair of his car.[11]The concept of possession in English law has sometimes been troublesome. It is important to have in mind that what has to be shown under the section here is possession: that is the word of the statute. Control is commonly an aspect of possession, and in many cases it is helpful to consider the question of possession in terms of control. That may, in particular, be because it avoids the problem of what a man has in his immediate possession, in the sense of having it in his hand or on his person, and in his distant possession in the sense that he possesses, for example, what belongs to him and is in his house. We do not think, however, that consideration of "possession" should give rise to difficulty on the present facts.[12]The prosecution case showed that the appellant agreed to meet Powell in the car park and that he bought a sum in cash to the meeting. Powell brought the gun and the ammunition. He had in it in a bag and he and the appellant looked at the bag. The Detective Sergeant was unable to say that he saw them looking into the bag, let alone examining the gun. At that point, the police intervened.[13]It may have been right to infer that the appellant and Powell intended that the appellant should buy the gun and the ammunition and to exchange the bag and its contents for money. However, that never occurred. The appellant never had his hands on the bag or its contents. He never took the gun from Powell. Until he did, in our judgment, he was not in possession of it. It was in Powell's sole possession. It was in Powell's sole control. It was not, as has been submitted to us today, a question of joint possession.[14]If the police had intervened a minute or two later, the position might have been different. However, that is irrelevant to whether the offence of having possession of a gun was committed by the appellant.[15]We therefore consider that there was no evidence on which the jury could properly have convicted the appellant of the charge which he faced.[16]There were further grounds of appeal which are subsidiary to and related to this ground. We have reached a clear view on this ground, so there is no need for us to consider them.[17]The appeal is allowed and the conviction set aside.