Rogers v R [2011] EWCA Crim 1459

Case No 201001167 D1[2011] EWCA Crim 1459
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
HIS HONOUR JUDGE BOULTON
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/06/2011
Before
LORD JUSTICE PILLMR JUSTICE BEANHIS HONOUR JUDGE PAGET QC
Between
Simon RogersAppellantReginaRespondent
Mr Oliver Cook (instructed by Mark Jones & Partners) for AppellantMr Edmund Haygarth (instructed by the CPS) for RespondentHearing Hearing date : 27 May 2011
JudgmentLORD JUSTICE PILL :
[1]On 20 October 2009, in the Crown Court at Liverpool before His Honour Judge Swift, Simon Rogers pleaded guilty to possessing a class A drug (cocaine) with intent. On 28 January 2010 in the Crown Court at Liverpool before His Honour Judge Boulton and a jury, Rogers was convicted of possessing a firearm without a firearm certificate (count 1) and possessing ammunition without a firearm certificate (count 2).[2]On 15 February 2010, Rogers was sentenced by His Honour Judge Boulton to 4 years imprisonment on count 1 and 3 years imprisonment concurrent on count 2. A sentence of 3 years imprisonment on the drugs charge was ordered to run consecutively, giving a total sentence of 7 years imprisonment with a direction that 185 days in custody on remand should count towards sentence.[3]Rogers appeals against conviction on count 1 by leave of the full court. He also appeals against sentence by leave of the single judge.[4]On the morning of 30 April 2008, the police sought to question the appellant about a matter unrelated to the present charges. Having received a voicemail message, he attended at the police station and was arrested for an unrelated matter. He remained in custody during the day.[5]On that evening, a refuse collector discovered a bag in a bin a few yards from the address the appellant had given to the police. The bag contained the component parts of an imitation revolver, a barrel, trigger and frame and 4 live 9mm rounds of ammunition in an envelope with the appellant’s name and address on it. The cylinder of the revolver was missing and the barrel had been modified to allow the passage of an object. The bag also contained documents linking it with the appellant and his fingerprints were found on the envelope and other documents. DNA that could match the appellant’s was found on parts of the revolver components.[6]The appellant denied possession of the items in the bag about which he said he knew nothing. He had not disposed of the device or the ammunition in the bin and did not know anything about them.[7]Count 1 alleged possessing a firearm without a Firearm Certificate contrary to section 1(1)(a) of the Firearms Act 1968. Possession of component parts of a firearm is alleged, “namely a barrel, frame and trigger of a 9mm revolver.”[8]Section 57(1) of the 1968 Act provides, in so far as is material:
“(1) In this Act, the expression “firearm” means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes— (a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and (b) any component part of such a lethal or prohibited weapon; and (c) any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon; . . .”
The prosecution case was that the device was a firearm because it comprised component parts of a prohibited weapon as defined in section 5 of the 1968 Act, a firearm which has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall (section 5(1)(aba) and section 5(2)). (a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and (b) any component part of such a lethal or prohibited weapon; and (c) any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon; . . .”[9]Concessions were made by both parties. In an agreed statement of facts it was stated that the revolver was originally designed as a blank firing revolver. The barrel had been modified and was now unobstructed or unblocked and was capable of allowing a missile or bullet to be discharged down it. At the muzzle, the inside barrel diameter was approximately 9.3mm. The cartridges subject to count 2 were of 9mm calibre.[10]The revolver cylinder was missing. The trigger mechanism was fully functioning. For the prosecution, Mr Haygarth accepted that, on the evidence, if lethality was required, the prosecution failed. Lethality is not required, he submitted, because these were component parts of a prohibited firearm and, reading paragraphs (a) and (b) of section 57(1) together, the word “lethal” in the general words in the section is excluded with respect to component parts of a prohibited weapon. The apparent dichotomy between the presence of the word lethal in the general words of the section and its exclusion with respect to what is now a broad range of prohibited weapons under sections 5 and 57 is of long standing, dating back at least to the Firearms Act 1937.[11]We express surprise that, on the evidence apparently available to the defence, the concession made went as far as accepting that a bullet could be “discharged” along the barrel rather than merely accepting that it could pass through it. It may be that the defence team were unaware of the strength of the expert evidence available to them.[12]At a voire dire, evidence was called from two experienced firearm examiners, Mr Horn, for the prosecution, and Mr Fletcher, for the defence. Having heard submissions, the judge ruled that the barrel, frame and trigger were component parts of a lethal or prohibited weapon within the meaning of section 57 (Mr Haygarth relies on the word prohibited). The judge directed the jury:
“As a matter of law I direct you that exhibit 6 is a firearm within that definition. You do not have to worry about that.”
[13]For the appellant, Mr Cook submitted that the judge erred in ruling that the items were capable in law of being components of a firearm, as distinct from an imitation firearm. Secondly, he submitted that the question whether they were parts of a firearm was a question of fact for the jury. Mr Cook also made the broader submission that, on the wording of section 57, construed with public policy in mind, the prosecution were required to prove lethality, which they admitted they had not.[14]Mr Horn’s evidence was that the infusion that would normally be present in the barrel of a blank firing pistol had been removed leaving the barrel “capable of the passage of a projectile.” The cylinder in a revolver contains the cartridges and would need to contain “quite a bit of pressure” when a cartridge is discharged. Blank firing devices are sometimes modified by replacing the cylinder with a much stronger cylinder made of steel to withstand the pressure. The original cylinder would probably have been able to discharge one or a couple of shots before cracking, he said. With a working cylinder the revolver would be capable of discharging bullets. Before deciding whether the 9mm ammunition would have been compatible, he would need actually to fit the barrel to the cylinder.[15]Under cross-examination, Mr Horn accepted that, before he could classify something as a firearm, he would have to be certain that it was actually capable of discharging ammunition and in its current condition the device was incapable of discharging anything. He maintained, however, that it could be considered “a device capable of discharging a missile should the correct cylinder be fitted to it.” It was part of a converted imitation firearm.[16]Mr Fletcher also referred to the stronger steel required if bullets are to be discharged. He did not accept that the items charged had become the component parts of a firearm. It was an “incomplete, partially converted imitation” and the components cannot without more be said to be component parts of a firearm. As they stand, they were component parts of an imitation firearm. The difference between a 9mm bullet and a 9.3mm barrel may tend to a loss of pressure from the propelling gas and “basically, the missile just rattles down the barrel and often comes out with a very low velocity . . .”[17]Removing a blockage from a barrel is “very, very difficult.” You cannot tell whether the device was a firearm:
“you just do not know the state of the magazine, the state of the cylinder and whether it’s been drilled out, partially drilled out or an attempt has been made and it’s been damaged.”
There was no cylinder. The 3 components charged were “components of an imitation firearm.”[18]Under cross-examination, Mr Fletcher was asked whether “the drilling of the barrel in this weapon is perfectly adequate”. He replied:
“I don’t know until we’ve actually tried something that will fit into it.”
It was “just a drilled out imitation barrel.” He just did not know whether the barrel would work.[19]Reference has been made to the Firearms Act 1982 (“the 1982 Act”) which applies (subject to exceptions) to imitation firearms which are readily convertible into firearms to which section 1 of the 1968 Act applies. Assuming that, as originally made, the revolver comes within the criteria defined in section 1 of the 1982 Act, section 1(4)(b) provides that the definition of firearm in section 57(1) of the 1968 Act “shall have effect without paragraphs (b) and (c) of that sub-section (component parts and accessories).” Thus unless they have been so altered as to become component parts of a firearm, the component parts subject to the present charge could not be subject to a charge either under the 1982 Act or under the 1968 Act.[20]It is alleged that the removal of the obstruction from the barrel converted them into components subject to the 1968 Act. The issue is whether, and in the absence of a cylinder appropriate for a firearm, the unblocked barrel, frame and trigger can be regarded as components of a firearm.[21]We doubt whether, on the evidence, they are capable of being regarded as such. It is highly questionable whether, on the evidence, the barrel had been so modified that it could properly be said to be the barrel of a firearm. Moreover, there is no evidence of the existence of a cylinder compatible for firing purposes with the modified barrel. Mr Horn asserts that they are components of a firearm but on the agreed facts, including the lack of evidence about the skill with which the obstruction had been removed and the effect of the work done, we regard that as doubtful. At lowest, there was an issue of fact for the jury as to whether the removal of the obstruction from the barrel converted the components in the manner alleged. Mr Fletcher’s evidence that, without a cylinder and without further testing, it was impossible to describe the components as components of a firearm is cogent. The appellant was at least entitled to have the factual question determined by a jury.[22]We add that but for the admission about discharge, which need not on the evidence have been made, there would also have been a factual issue on the related question whether it had been proved that a bullet could have been “discharged” from the device, a necessary requirement under section 1 of the 1968 Act, read with sections 5 and 57.[23]The judge was not entitled to rule as he did and the conviction on count 1 is unsafe. There is no need to consider the further question raised as to the requirement, under the statute, of lethality. The appeal is allowed and the conviction on count 1 quashed.

Sentence

[24]The appellant is 20 years old and of previous good character. No complaint is made about the sentence of 3 years imprisonment for possessing a class A drug, cocaine, with intent to supply. When on bail for the firearms offences, he was followed by police when driving a motor car. He parked and left the car and was observed throwing something into a garden. Several wraps of white powder were found and the appellant admitted that it was cocaine. He admitted being involved in supplying cocaine. Cocaine was found at his flat along with scales and other paraphernalia associated with the use of drugs.[25]The submission on behalf of the appellant is that the sentence of 3 years for possessing ammunition without consent, in the absence of the aggravating feature, as the judge put it when sentencing, of possessing a firearm, is manifestly excessive. The question of totality is also raised.[26]While it is far from certain that the ammunition could have been used with the revolver in any event, we agree that a reduction in sentence is appropriate having regard to the acquittal on count 1. We substitute a sentence of 2 years imprisonment on count 2. That leaves a total sentence of 5 years imprisonment which is appropriate for the offences proved.[27]To that extent, the appeal against sentence is allowed.