Williams v R. [2012] EWCA Crim 2162

[2012] EWCA Crim 2162

Case No 201200083 C4

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE INNER LONDON CROWN COURT

HHJ GERALD

T20117243

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18/10/2012

Before

LORD JUSTICE DAVIS

MR JUSTICE FOSKETT

MR JUSTICE SWEENEY

Between

ORETTE WILLIAMSAppellant

THE CROWNRespondent

(Transcript of the Handed Down Judgment of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

STEPHEN BISHOP (instructed by Kaim Todner Solicitors Ltd) for Appellant.

RICHARD WHITTAM QC (instructed by the Crown Prosecution Service) for Respondent.

Hearing Hearing date: 10 th August 2012

Judgment

Introduction

[1]The appellant, Orette Williams, was charged with possession of a prohibited weapon contrary to s.5(1)(a) of the Firearms Act 1968 as amended (“the 1968 Act”). The weapon in question was a “Blow Crazy” imitation 9 mm calibre gun, which was capable of firing blanks and was alleged by the prosecution to have been readily convertible into a firearm within the provisions of s.1 of the Firearms Act 1982 (“the 1982 Act”). The question (described in Blackstone’s Criminal Practice 2012 ed. at para B12.22 as an “open” question) is this: do the provisions of s.1(5) of the 1982 Act give rise to an evidential burden or to a legal (persuasive) burden on an accused charged with an offence of possession of a readily convertible imitation firearm?

[2]The trial judge, Judge Gerald, sitting in the Inner London Crown Court, ruled that the sub-section gave rise to a legal (persuasive) burden on the appellant. He rejected the submission that, an issue having been duly raised – as was common ground – as to whether the appellant knew or had reason to suspect that the imitation firearm was readily convertible, it was then for the prosecution to make the jury sure that the appellant did not know and had no reason to suspect that it was readily convertible. Instead, he directed the jury that it was for the appellant to establish, on the balance of probabilities, that he did not know or have reason to suspect that it was readily convertible.

[3]The jury unanimously convicted on 2nd December 2011. The appellant was in due course sentenced to a term of 5 years’ imprisonment. The appellant now appeals against his conviction by leave of the single judge, arguing that the judge’s ruling (and consequent direction to the jury) was wrong in law. He also renews his application for leave to appeal against conviction on certain other grounds; and further renews an application for leave to appeal against sentence, leave having been refused by the single judge.

The background facts

[4]The appellant is now aged 27. He has previous convictions for offences of dishonesty and was cautioned in 2005 for having a bladed article. He has no previous convictions for offences of violence or firearms offences.

[5]On 27th May 2011 at 02.20 a.m. armed police officers executed a warrant obtained under the 1968 Act at an address in Brixton. The officers heard a noise before they entered the property and it transpired that it was the appellant firing an imitation firearm known as a “Blow Crazy”, behind the closed door. When the door was forced open and the police identified themselves the appellant was seen to run from the hallway into a bedroom. He was cooperative when asked to come forward and leave the flat. The appellant when questioned by police at the scene, after caution, said “My girlfriend said there was some men with masks coming, I thought I was going to be robbed so I fired”. He also said that he did not know they were the police and he had fired blanks. He was arrested for attempted murder and possession of a firearm. At the police station he gave a no comment interview. The appellant’s partner, Ayat Mahoud, was arrested at the scene; she gave a full comment interview in which she stated that she had seen a masked man approaching the flat; she was scared and had told the appellant that they were about to be robbed. The appellant fired the imitation gun before the police identified themselves.

[6]In due course, a count of possessing a firearm with intent to cause fear of violence was withdrawn after Ms Mahoud had given her evidence. The prosecution case became one that the appellant was in possession of the gun knowing or suspecting that it was convertible into a firearm. It was alleged that he had an obvious interest in firearms, having purchased several deactivated weapons from a Mr. Camm in the recent past and that he had a knowledge of the different types that were available. He had, it was asserted, much more of an interest in guns than he was revealing. The defence case was that the appellant did not know, and had no reason to suspect, that the firearm was readily convertible into a live firearm.

[7]A forensic scientist, Mr Gibbs, was called by the prosecution. He had examined the firearm: found to be a Turkish-made, “Blow Crazy” 9mm PAK calibre blank firing gun. It was designed to fire 9mm PAK calibre blank cartridges, which were not fitted with a projectile and which were designed only to make a loud noise and flash when fired. The gun was designed to fire in semi-automatic and full-automatic mode. It had an overall length of 39.9 centimetres and the barrel was blocked at its muzzle by a metal plug. It was not capable of discharging a projectile and he saw no evidence of any attempt to convert the gun to do so. He was able to disassemble the item using an Allen key and a metal pin punch. He found that the Blow Crazy was made of two die cast metal halves. In disassembling the item Mr Gibbs broke two pieces of the casing. Having separated the halves he was able to remove a ferrous threaded plug which blocked the exit of the two halves. It was not readily removable without separating the two casings. When the outer casing was opened up the inner gun could be lifted out and the two plugs in the muzzle could be removed with a screwdriver. Once that had been done the inner gun could be used successfully to release specially made live ammunition with one pull of the trigger. He carried out several firing tests using laboratory blank cartridges and found it to be in working order in semi-automatic and full-automatic modes. Using his knowledge after disassembly and conversion he then carried out a search on the internet. He spent three to four hours and was able to find a website which explained how to disassemble the item and explained that there was a blank firing pistol mechanism within the case. He did not find any information stating or suggesting that the item was convertible. His evidence was that when he first inspected the item he himself had no idea or suspicion that it was convertible. It was only after disassembly that he became aware.

[8]The appellant gave evidence. He said that in late 2010 he had contacted a Mr. Camm through the Wilweb internet site. He purchased from him 2 deactivated World War II Russian firearms. These were a sub-machine gun and a Mosin Nagant bolt action rifle. He subsequently purchased other items, two Enfield Webley WWII era revolvers and a Russian Tokarev pistol. In March/April 2010 he purchased via the Wilweb internet site the Turkish made “Blow Crazy” 9mm PAK calibre blank firing gun from a man in Woolwich. The man had shown him how to load the gun. He had never been told that it was convertible. His reason for purchasing the WW II items had been to show them to his uncle who had fought in the Second World War. His uncle was very old and ill in a nursing home. He showed him the firearms. A month or so later he sold them and made a profit. He realized it was a nice earner and started to trade in similar items. He purchased other deactivated weapons from Mr Camm and another supplier. In order to keep his costs down he would dovetail the purchases with his chauffeuring jobs. He kept the “Blow Crazy” for about a year in his girlfriend’s flat. He said that he intended using it in a film about gangs which his friend was going to make. He accepted that he carried out DIY and was a bit of a handyman.

The judge, when he came to pass sentence, had described the firearm in this way:

“Without being opened up, the Blow Crazy looks and feels like a ‘real’ sub-machine gun. It is black metal, with a solid heavy feel and moving trigger and bolt and separate magazine although the muzzle is plugged… The uninitiated would most likely think it was or may well be a real firearm albeit with a plug in the end preventing its use as a live firearm. It is only when opened up (by the removal of five or six screws on the outer casing) that the inner gun is revealed. It is the inner gun which comprises the moving parts making the Blow Crazy readily convertible into a live firearm once its plugs have been removed.”

[10]It was common ground that the imitation firearm had not in fact been “disassembled” by the appellant himself in the year in which he had had it.

The legislation

[11]Section 1(1) of the 1968 Act provides as follows:

“1. Requirement of firearm certificate. (1) 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; (b) to have in his possession, or to purchase or acquire, any ammunition to which this section applies without holding a firearm certificate in force at the time, or otherwise than as authorised by such a certificate, or in quantities in excess of those so authorised.”

Section 5(1) and (2) of the 1968 Act provide as follows:

“5. Weapons subject to general prohibition. (1) A person commits an offence if, without the authority of the Defence Council or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), he has in his possession, or purchases or acquires, or manufactures, sells or transfers— (a) any firearm which is so designed or adapted that two or more missiles can be successively discharged without repeated pressure on the trigger; (ab) any self-loading or pump-action rifled gun other than one which is chambered for .22 rim-fire cartridges; (aba) any firearm which either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon,. . . a muzzle-loading gun or a firearm designed as signalling apparatus; (ac) any self-loading or pump-action smooth-bore gun which is not an air weapon or chambered for .22 rim-fire cartridges and either has a barrel less than 24 inches in length or. . . is less than 40 inches in length overall; (ad) any smooth-bore revolver gun other than one which is chambered for 9mm. rim-fire cartridges or a muzzle-loading gun; (ae) any rocket launcher, or any mortar, for projecting a stabilised missile, other than a launcher or mortar designed for line-throwing or pyrotechnic purposes or as signalling apparatus; (af) any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self-contained gas cartridge system; (b) any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing; and (c) any cartridge with a bullet designed to explode on or immediately before impact, any ammunition containing or designed or adapted to contain any such noxious thing as is mentioned in paragraph (b) above and, if capable of being used with a firearm of any description, any grenade, bomb (or other like missile), or rocket or shell designed to explode as aforesaid. 1A) Subject to section 5A of this Act, a person commits an offence if, without the authority of the Secretary of State or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998, he has in his possession, or purchases or acquires, or sells or transfers— (a) any firearm which is disguised as another object; (b) any rocket or ammunition not falling within paragraph (c) of subsection (1) of this section which consists in or incorporates a missile designed to explode on or immediately before impact and is for military use; (c) any launcher or other projecting apparatus not falling within paragraph (ae) of that subsection which is designed to be used with any rocket or ammunition falling within paragraph (b) above or with ammunition which would fall within that paragraph but for its being ammunition falling within paragraph (c) of that subsection; (d) any ammunition for military use which consists in or incorporates a missile designed so that a substance contained in the missile will ignite on or immediately before impact; (e) any ammunition for military use which consists in or incorporates a missile designed, on account of its having a jacket and hard-core, to penetrate armour plating, armour screening or body armour; (f) any ammunition which incorporates a missile designed or adapted to expand on impact; (g) anything which is designed to be projected as a missile from any weapon and is designed to be, or has been, incorporated in— (i) any ammunition falling within any of the preceding paragraphs; or (ii) any ammunition which would fall within any of those paragraphs but for its being specified in subsection (1) of this section. (2) The weapons and ammunition specified in subsections (1) and (1A) of this section (including, in the case of ammunition, any missiles falling within subsection (1A)(g) of this section) are referred to in this Act as “prohibited weapons” and “prohibited ammunition” respectively.” (1) 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; (b) to have in his possession, or to purchase or acquire, any ammunition to which this section applies without holding a firearm certificate in force at the time, or otherwise than as authorised by such a certificate, or in quantities in excess of those so authorised.” (1) A person commits an offence if, without the authority of the Defence Council or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), he has in his possession, or purchases or acquires, or manufactures, sells or transfers— (a) any firearm which is so designed or adapted that two or more missiles can be successively discharged without repeated pressure on the trigger; (ab) any self-loading or pump-action rifled gun other than one which is chambered for .22 rim-fire cartridges; (aba) any firearm which either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon,. . . a muzzle-loading gun or a firearm designed as signalling apparatus; (ac) any self-loading or pump-action smooth-bore gun which is not an air weapon or chambered for .22 rim-fire cartridges and either has a barrel less than 24 inches in length or. . . is less than 40 inches in length overall; (ad) any smooth-bore revolver gun other than one which is chambered for 9mm. rim-fire cartridges or a muzzle-loading gun; (ae) any rocket launcher, or any mortar, for projecting a stabilised missile, other than a launcher or mortar designed for line-throwing or pyrotechnic purposes or as signalling apparatus; (af) any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self-contained gas cartridge system; (b) any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing; and (c) any cartridge with a bullet designed to explode on or immediately before impact, any ammunition containing or designed or adapted to contain any such noxious thing as is mentioned in paragraph (b) above and, if capable of being used with a firearm of any description, any grenade, bomb (or other like missile), or rocket or shell designed to explode as aforesaid. 1A) Subject to section 5A of this Act, a person commits an offence if, without the authority of the Secretary of State or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998, he has in his possession, or purchases or acquires, or sells or transfers— (b) any rocket or ammunition not falling within paragraph (c) of subsection (1) of this section which consists in or incorporates a missile designed to explode on or immediately before impact and is for military use; (c) any launcher or other projecting apparatus not falling within paragraph (ae) of that subsection which is designed to be used with any rocket or ammunition falling within paragraph (b) above or with ammunition which would fall within that paragraph but for its being ammunition falling within paragraph (c) of that subsection; (d) any ammunition for military use which consists in or incorporates a missile designed so that a substance contained in the missile will ignite on or immediately before impact; (e) any ammunition for military use which consists in or incorporates a missile designed, on account of its having a jacket and hard-core, to penetrate armour plating, armour screening or body armour; (f) any ammunition which incorporates a missile designed or adapted to expand on impact; (g) anything which is designed to be projected as a missile from any weapon and is designed to be, or has been, incorporated in— (i) any ammunition falling within any of the preceding paragraphs; or (ii) any ammunition which would fall within any of those paragraphs but for its being specified in subsection (1) of this section. (2) The weapons and ammunition specified in subsections (1) and (1A) of this section (including, in the case of ammunition, any missiles falling within subsection (1A)(g) of this section) are referred to in this Act as “prohibited weapons” and “prohibited ammunition” respectively.”

[12]“Firearm” is defined in s.57(1) of the 1968 Act in the following way:

“57. Interpretation. (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; and so much of section 1 of this Act as excludes any description of firearm from the category of firearms to which that section applies shall be construed as also excluding component parts of, and accessories to, firearms of that description.” “Imitation firearm” is defined in s.57(4) as follows: “‘imitation firearm’ means anything which has the appearance of being a firearm (other than such a weapon as is mentioned in section 5(1)(b) of this Act) whether or not it is capable of discharging any shot, bullet or other missile;”

[13]The general scheme of the 1968 Act, then, is not to prohibit simple possession of an imitation firearm. However offences are committed if (for example) a person has with him an imitation firearm with intent to commit an indictable offence or to resist arrest (s.18); or if a person has with him an imitation firearm in a public place without lawful authority or reasonable excuse (s.19); or if a person has with him an imitation firearm as a trespasser and without reasonable excuse (s.20).

[14]The 1982 Act itself is designated to be read with the 1968 Act; as indicated by s.4. Section 1 of the 1982 Act is in the following terms:

“1. Control of imitation firearms readily convertible into firearms to which section 1 of the 1968 Act applies (1). This Act applies to an imitation firearm if— (a) it has the appearance of being a firearm to which section 1 of the 1968 Act (firearms requiring a firearm certificate) applies; and (b) it is so constructed or adapted as to be readily convertible into a firearm to which that section applies. (2) Subject to section 2(2) of this Act and the following provisions of this section, the 1968 Act shall apply in relation to an imitation firearm to which this Act applies as it applies in relation to a firearm to which section 1 of that Act applies. (3) Subject to the modifications in subsection (4) below, any expression given a meaning for the purposes of the 1968 Act has the same meaning in this Act. (4) For the purposes of this section and the 1968 Act, as it applies by virtue of this section— (a) the definition of air weapon in section 1(3)(b) of that Act (air weapons excepted from requirement of firearm certificate) shall have effect without the exclusion of any type declared by rules made by the Secretary of State under section 53 of that Act to be specially dangerous; and (b) the definition of firearm in section 57(1) of that Act shall have effect without paragraphs (b) and (c) of that subsection (component parts and accessories). (5) In any proceedings brought by virtue of this section for an offence under the 1968 Act involving an imitation firearm to which this Act applies, it shall be a defence for the accused to show that he did not know and had no reason to suspect that the imitation firearm was so constructed or adapted as to be readily convertible into a firearm to which section 1 of that Act applies. (6) For the purposes of this section an imitation firearm shall be regarded as readily convertible into a firearm to which section 1 of the 1968 Act applies if— (a) it can be so converted without any special skill on the part of the person converting it in the construction or adaptation of firearms of any description; and (b) the work involved in converting it does not require equipment or tools other than such as are in common use by persons carrying out works of construction and maintenance in their own homes.”

Section 2 of the 1982 Act extends, in the circumstances there set out, references to firearms in the 1968 Act to readily convertible imitation firearms.

[15]Reference may also be made to certain provisions of the Violent Crime Reduction Act 2006 (“the 2006 Act”) and to the 2007 and 2011 Regulations made in exercise of the powers conferred by the 2006 Act. In particular, s.36 of the 2006 Act makes it an offence to manufacture, modify, sell or import a “realistic imitation firearm” (as defined in s.38). Various specific defences are provided in s.37: that section being drafted in such a way as to make clear that such defences give rise to an evidential burden (only) on a defendant. Regulation 4 of the 2007 Regulations has the like effect. Section 40 of the 2006 Act also introduces, by way of amendment, a new s.24A into the 1968 Act: which makes it an offence, among other things, to sell an imitation firearm to a minor. Section 24A again makes clear, by its wording, that there is an evidential burden (only) on a defendant to raise an issue as to whether he believed or had reasonable grounds to believe that the purchaser was aged 18 or over.

[16]Offences committed under s.36 of the 2006 Act or s.24A of the 1968 Act are summary only. An offence committed under s.1 or s.5 of the 1982 Act is triable either summarily or on indictment, with a maximum available sentence of 10 years’ imprisonment (with or without a fine) where the firearm is a prohibited weapon. By reason of s.51A of the 1968 Act an adult defendant is potentially liable on conviction to a sentence of not less than five years’ imprisonment in the absence of a finding of exceptional circumstances.

[17]As was stated in Bewley

[2012] EWCA Crim 1457

, the 1968 Act and the 1982 Act may be regarded as a single code. The 2006 Act (and ancillary Regulations) may itself also be regarded as part of the evolving intention of Parliament with regard to the ever present, and ever increasing, menace of firearms, imitation or otherwise.

[18]It may be noted that in the present case there was also an issue as to whether the imitation firearm was indeed “readily convertible” within the definition of s.1(6) of the 1982 Act. It was asserted by the defence that the pin punch needed to disassemble the weapon was a piece of equipment or tool not in common use by persons carrying out works of construction and maintenance in their own homes. It was common ground at trial that it was for the prosecution to prove such matter to the criminal standard as an element of the offence – that is, that this was a readily convertible imitation firearm within the ambit of s.1(1) of the 1982 Act. The judge directed the jury accordingly.

The legal approach to the firearms legislation

[19]It has long been established that an offence under s.5 (as under s.1) of the 1968 Act is an offence of strict liability.

[20]That – consistently with the language of the section – was authoritatively first decided by a decision of a constitution of this court in Bradish (1990) 90 CAR 271. Having reviewed such well-known cases as Warner v Metropolitan Police Commissioner

[1969] 2 AC 256

and Sweet v Parsley

[1970] AC 132

, Auld LJ, giving the judgment of the court, emphasised (at p.279) that the clear purpose of the firearms legislation was to impose a tight control on the use of highly dangerous weapons:

“To achieve effective control and to prevent the potentially disastrous consequences of their misuse, strict liability is necessary, just as it is in the equally dangerous field of drugs….”

The court went on to give a number of reasons why it was not open to an accused to raise a defence of lack of knowledge as to what he was carrying. One such reason was that:

“…the possibilities and consequences of evasion would be too great for effective control, even if the burden of proving lack of guilty knowledge were to be on the accused…. It would be easy for an accused to maintain, lyingly but with conviction, that he did not recognise the object in his possession as part of a firearm or prohibited weapon. To the argument that the innocent possessor or carrier of firearms or prohibited weapons or parts of them is at risk of unfair conviction under these provisions, there has to be balanced the important public policy behind the legislation of protecting the public from the misuse of such dangerous weapons…”

[21]This remains the position for such cases of possession of a prohibited firearm: see, 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 necessarily infringe

Article 6 of the European Convention on Human Rights

. The position is helpfully summarised in the decision in G

[2006] EWCA Crim 821

, [2006] 2 CAR 17. There, after referring to the decision of the European Court of Human Rights in Salabiaku v France

(1988) 13 EHRR 379

, these principles were identified (para 30):(1) A provision of law imposing strict liability will not infringe Article

6.1 or 6.2;

(2) An evidential presumption that a criminal offence has been committed may infringe Article 6.1 or 6.2;

(3) An evidential presumption is more likely to infringe Article 6.1 and

6.2 if it is irrebuttable than if it is rebuttable.

[23]The present case is to be compared and contrasted with the kinds of firearms cases mentioned above. Had s.1 of the 1982 Act not included s.1(5) then, by parity of approach, an offence of strict liability for possession of a readily convertible imitation firearm on the face of it would have been created. But, of course, it does include it. And that, says Mr Bishop, appearing on behalf of the appellant, makes all the difference. Here, he says (picking up on comments in Deyemi and Edwards at paragraphs 13 and 23), Parliament has introduced a provision allowing consideration of the accused’s state of mind; and here, he says, Parliament has introduced a defence equivalent to s.28 of the Misuse of Drugs Act 1971, interpreted by the House of Lords in Lambert

[2011] UKHL 37

[2002] 2 AC 545

as giving rise to an evidential, not legal, burden on the accused.

[24]So it is that the issue arises. It involves consideration at four stages:(1) Does s.1(5) of the 1982 Act, as a matter of ordinary interpretation under the law of England and Wales, impose a legal (persuasive) burden on an accused?

(2) If it imposes a legal (persuasive) burden on an accused, does that involve an encroachment on the Article 6(2) rights (the presumption of innocence) of the accused?

(3) If it does represent such an encroachment, is it to be justified as a necessary and proportionate derogation from the presumption of innocence?

(4) If it cannot be so justified, is s.1(5) to be read down, on an application of s.3 of the Human Rights Act 1998, so as to impose an evidential burden (only) on an accused?

[25]The trial judge, in a conspicuously careful and thoughtful written ruling, answered the first three questions in the affirmative. Having so decided, he did not need to give an answer to the fourth question. (1) Construction

[26]We can take this quite shortly, as the point was conceded by Mr Bishop in argument. As a matter of ordinary interpretation, s.1(5) does impose a reverse, legal, burden on an accused. Mr Bishop did not seek to suggest that use of the word “show” (as opposed to “prove”) could indicate otherwise.

[27]It is true that the 2006 Act (by sections 36 and 37) does, in clear and express terms, impose only an evidential burden on an accused in that context. So too does s.24A of the 1968 Act (introduced by the 2006 Act). But that does not mean that, where an evidential burden is put on an accused in the firearms legislation, Parliament is intending to signify that in all contexts in the firearms legislation that is designed to be the only kind of burden to be imposed on an accused. As Mr Whittam QC (appearing for the Crown on this appeal but who did not appear below) also pointed out, while s.24A of the 1968 Act imposes in terms only an evidential burden, no amendment was sought to be made to s.1(5) of the 1982 Act. Further, the existence of a legal burden on an accused is, we consider, contemplated elsewhere in the 1968 Act. For example, under s.19 of the 1968 Act a person commits an offence if, among other things, “without lawful authority or reasonable excuse (the proof whereof lies on him) he has with him in a public place” a firearm or imitation firearm. Once the prosecution have proved to the criminal standard that the accused “has with him” in a public place such a firearm the legal (persuasive) burden would then be on the accused to show, to the balance of probabilities, lawful authority or reasonable excuse: see the analogous reasoning in L v Director of Public Prosecutions

[2001] EWHC Admin 882

;

[2003] QB 137

and Matthews

[2003] EWCA Crim 313

;

[2004] QB 690

(bladed articles). Likewise under s.20 of the 1968 Act. (2) Derogation from Article 6

[28]Article 6.2 of the European Convention on Human Rights provides, of course, as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

[29]In some contexts, there have been arguments that where what might be called a statutory defence is provided by the relevant statute then there can be no infringement of the presumption of innocence where all the actual constituent elements of the offence are required to be proved by the prosecution. So, it might be said here, the constituent elements of the offence are possession (in fact) of an imitation firearm which is (in fact) readily convertible within the meaning of s.1(6) of the 1982 Act: and it is those elements and those only, which the prosecution is required to prove to the criminal standard: and so it could be said, no mental element is incorporated into such an offence.

[30]However, the trend of authority in recent times has been to look at such matters rather more broadly. Here, by s.1(5) of the 1982 Act, Parliament has introduced a defence which – in part – relates to the state of mind of the accused. In such circumstances, we do think that Article 6.2 has potential application here. We consider that the judge was right to conclude that the ostensible reverse legal burden created by s.1(5) of the 1982 Act did “make an inroad” (in his words) into the rights conferred by Article 6.2. Mr Whittam, indeed, did not seek to suggest otherwise. (3). Justification

[31]That then leads to the third question, which in truth is central to this appeal. Is the derogation from the presumption of innocence justified as representing a reasonable and proportionate response, balancing the importance of what is at stake for the public with the maintenance of the normal rights of the defendant?

[32]As noted above, a presumption adverse to, or reverse burden put on, a defendant is not of itself an unjustified infringement of Article 6. As Lord Hope said in Lambert (after referring to Salabiaku v France), at paragraphs 87 and 88 of his judgment, a reverse onus provision will not inevitably give rise to a finding of incompatibility. As he put it:

“What it means is that, as the Article 6(2) right is not absolute and unqualified, the test to be applied is whether the modification or limitation of that right pursues a legitimate aim and whether it satisfied the principle of proportionality… It is now well settled that the principle which is to be applied requires a balance to be struck between the general interest of the community and the protection of the fundamental rights of the individual. This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute.”

Lord Steyn had said in that case (at paragraph 34):

“It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed.”

He went on, under the heading of proportionality, to say this:

“37. The burden is on the State to show that the legislative means adopted were not greater than necessary. Where there is objective justification for some inroad on the presumption of innocence the legislature has a choice. The first is to impose a legal burden of proof on the accused. If such a burden is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary; 11th Report of the Criminal Law Revision Committee, Evidence (General)(1972) Cmnd 4991, para 138. The second is to impose an evidential burden only on the accused. If this technique is adopted the matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury as to the matter beyond reasonable doubt in the ordinary way: para 138. It is important to bear in mind that it is not enough for the defence merely to allege the fact in question: the court decides whether there is a real issue on the matter: para 138. A transfer of a legal burden amounts to a far more drastic interference with the presumption of innocence than the creation of an evidential burden on the accused. The former requires the accused to establish his innocence. It necessarily involves the risk that, if the jury are faithful to the judge’s direction, they may convict where the accused has not discharged the legal burden resting on him but left them unsure on the point. This risk is not present if only an evidential burden is created.”

[33]In Johnstone

[2003] UKHL 28

[2003] 1 WLR 1736

Lord Nicholls said this in paragraph 50 of his judgment:

“This consequence of a reverse burden of proof should colour one's approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access.”

[34]One possible approach here might have been to say that the “golden thread” of the presumption of innocence, and an appreciation of the rights enshrined in Article 6 both before and after the passing of the Human Rights Act 1998, could be presumed always to have been borne well in mind by Parliament; accordingly, it being for Parliament to decide what the interests of the public require and where the balance is to be struck, it is to be assumed that where Parliament has, exceptionally, cast a reverse burden on a defendant then it will have had good reason to do so. However, this approach has been doubted by the House of Lords in Sheldrake v Director of Public Prosecutions

[2004] UKHL 43

;

[2005] 1 AC 264

. In the course of his judgment Lord Bingham said this:

“21. From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.”

And at paragraph 31 he said:

“The task of the court is never to decide whether a reverse burden should be imposed on a defendant but always to assess whether a burden enacted by Parliament unjustifiably infringed the presumption of innocence.”

[35]The same decision is also binding authority for the proposition that the decision of the House in Johnstone was not to be cited in preference to the earlier decision in Lambert: both were to be read together, it being stated by Lord Bingham that “differences of emphasis…are explicable by the difference in subject matter of the two cases”. Even so – perhaps not altogether surprisingly – Mr Bishop in the present case was minded to give rather greater emphasis to the judgment of Lord Steyn in Lambert and Mr Whittam to give rather greater emphasis to the judgment of Lord Nicholls in Johnstone.

[36]At all events, it follows that, for these purposes, the outcome will depend on the context of the statutory provision in question: whether a provision giving rise to a reverse burden is to be read as creating a legal burden or an evidential burden and whether it is to be justified as proportionate depends on the particular circumstances. In consequence, there have been a number of decisions in various different statutory contexts in recent years: in some instances, holding a reverse legal burden to be justified and proportionate; in other instances reading such a provision down so as to impose an evidential burden. There is not much value in reviewing these various decisions, just because they depend on their own statutory context and circumstances.

[37]In the present case, Mr Bishop submitted that the provisions of s.1(5) of the 1982 Act were to be read down as imposing an evidential burden. In summary, he placed reliance on the following points in particular:(1) The offence was a serious one. The maximum sentence is one of 10 years’ imprisonment: and the (very likely) minimum sentence could be five years in many cases.

(2) Since mere possession of an imitation firearm is not an offence, the true criminality in the possession of an imitation firearm which is readily convertible should lie in the knowledge (or suspicion) that that is so. It would not always be easy for a defendant to adduce proof as to his knowledge or whether he had no reason for suspicion. On the other hand, prosecutors are well resourced and can readily make the necessary investigations – for example, as to previous dealing, availability of information on the internet, other attempts at conversion, connections with those known to be involved in firearms, commissioning of expert evidence and so on.

(3) If the core criminality lies in ready convertibility, it is reasonable for the prosecution to be required to show the defendant’s knowledge of that. On the other hand, it could be difficult for a defendant to prove a negative. As to the other element of s.1(5), a requirement of having no reason to suspect is at least in part objective and can be fairly left to the prosecution to disprove.

(4) The statute was capable of operating effectively in the absence of a reverse legal burden. Further, for the purposes of s.24A of the 1968 Act and s.36 of the 2006 Act, Parliament had seen no difficulty – once an issue had been duly raised by the defence (and he emphasised that it had to be duly raised) – in putting the legal burden (to disprove) on the prosecution in those contexts.

(5) There could be inconsistencies in outcome in the application of a reverse burden depending on whether or not a particular object was an “imitation firearm” (for the purposes of the 1982 Act) or a “realistic imitation firearm” (for the purposes of s.36 of the 2006 Act and the Regulations made under it).

[38]Mr Bishop also placed reliance on the citation by Lord Nicholls (with approval) in Johnstone of the remarks of Sachs J in the South African case of State v Coetzee

[1997] 2 LRC 533

to the effect that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important the constitutional protection of the accused becomes. Mr Bishop pointed out that Lord Nicholls said that a compelling reason was needed to justify a reverse burden in such circumstances. Further, Mr Bishop relied on Lord Nicholls’ statement (at paragraph 50) that it was a “sound starting point” to remember that if an accused was required to prove a fact on the balance of probability to avoid conviction, this would permit a conviction in spite of the jury having a reasonable doubt as to the guilt of the accused. Mr Bishop also noted, in this context, that at the sentencing stage a judge is generally required to be made sure by the prosecution (that is, to the criminal standard) as to the factual situation in assessing for the purposes of s.51A any advanced “exceptional circumstances”: cf. Lashari

[2010] EWCA Crim 1504

, [2011] 1 CAR 72.

[39]For his part, Mr Whittam relied on the following points in particular in support of his submission that a legal (persuasive) burden on an accused was imposed by s.1(5). In this regard, he placed considerable emphasis on the various factors referred to by Lord Nicholls at paragraphs 52 and 53 of his judgment in Johnstone, albeit accepting of course that that was a case having a very different statutory context, namely trademark infringement (counterfeiting). His points, in summary, were these:(1) It was important to bear in mind that s.1 of the 1982 Act was part of a statutory code which – justifiably, proportionately and lawfully – had created strict liability for certain firearms offences, as part of a clear and justifiable policy objective.

(2) As illustrated by the authorities from Bradish onwards, firearms constitute a grave risk to the public. By its very nature, an imitation firearm within the ambit of s.1 of the 1982 Act is capable of being converted into a lethal weapon. It is proportionate, and consistent with the aims of the firearms legislation generally, that the provisions of s.1(5) should give rise to a legal burden on an accused in such a situation.

(3) The accused is in much the best position to explain what his state of knowledge or belief was at the time he came into possession of the readily convertible imitation firearm and the circumstances in which he came to have it. Further, the accused is much the best placed to say whether or not he had reason to suspect that it was readily convertible. On the other hand, the prosecution would be in great difficulties in making investigations or in obtaining any evidence to rebut a case of lack of knowledge or reason to suspect.

(4) The provisions with regard to the (summary) offences relating to realistic imitation firearms (non-lethal) were not comparable and could not give rise to an inconsistency in outcome. Moreover, a manufacturer, importer or seller of an imitation firearm which was in fact readily convertible would in practice be potentially liable to the same sanction as the person ultimately possessing it and would be subject to the same burden.

(5) The maximum sentence was 10 years (compared to life imprisonment in Lambert). The prospective minimum sentence of 5 years, moreover, was capable of adjustment in exceptional circumstances.

[40]In our judgment, there are compelling reasons for concluding that s.1(5) imposes a legal burden on the defendant.

[41]Firearms offences – any firearms offences – are a very serious problem. Where those firearms stand to be lethal – as in the case of readily convertible imitation firearms – the need for protection of the public is obvious. That is reflected by the (legitimate) creation of a number of strict liability offences in this context. For the purposes of strict liability offences under s.1 and s.5 of the 1968 Act Parliament has focused on the nature of the item possessed, rather than the accused’s knowledge: and s.1 of the 1982 Act has to be read in the context of s.1 and s.5 of the 1968 Act. The position is not, in our view, to be equated with that applicable to realistic but non-lethal imitation firearms. Rather, as we see it, the statements of principle enunciated in Bradish have equal force with regard to readily convertible imitation firearms: since where the firearm is imitation but is readily convertible, the need for protection is no less. In circumstances where, nevertheless, Parliament has, by s.1(5) of the 1982 Act, considered it appropriate that a defence of lack of knowledge or reason to suspect in such cases be available it is, in our judgment, justified and proportionate that the legal burden of such defence – a defence made available as an exception or modification to the strict liability approach – be placed on the accused.

[42]Further, the question of knowledge (or lack of it) involves facts readily available to the accused – he knows the circumstances in which and from whom he obtained the item. Likewise as to the issue of whether he “had no reason to suspect” that the imitation firearm was so constructed or adapted as to be readily convertible. No great difficulty is placed in the way of a defendant in that regard. On the other hand, it could be very difficult indeed for prosecutors, and would be a real deterrent to prosecution let alone successful prosecution, if the burden were placed on the Crown to obtain the necessary evidence to disprove a case that the accused had neither knowledge nor reason to suspect.

[43]Moreover, if the prosecution have first proved to the criminal standard that a person was (in fact) in possession of an imitation firearm which was (in fact) readily convertible into a lethal firearm, that is a scenario sufficiently out of the norm such that there is no obvious unfairness or unreasonableness in then requiring the possessor to, as it were, justify himself for possessing such an item.

[44]That the maximum sentence is (no more than) 10 years is also at least consistent with a conclusion that the imposition of a legal reverse burden is, striking the balance, to be justified as a necessary, reasonable and proportionate derogation of the presumption of innocence. And that is our conclusion. Accordingly the appeal on this ground fails. (4). Reading down

[45]Given this conclusion, the question of reading down does not arise.

Other grounds of appeal

[46]Mr Bishop sought to renew some of the grounds of his application for leave to appeal against conviction which had been rejected by the single judge.

[47]The first complaint was that the trial judge had been wrong to give a direction under s.34 of the Criminal Justice and Public Order Act 1994 in respect of the appellant’s failure to answer questions in interview as to the circumstances in which he had acquired the firearm. The essential complaint was that, at the time he was interviewed, the appellant was under investigation for attempted murder and possession of a firearm with intent. But these allegations were subsequently not pursued. Moreover, at the time of the interview it was not even known by the prosecution as to whether the item was “readily convertible” and so, it is said, he was not interviewed as to his knowledge or suspicion of ready convertibility.

[48]This ground is demolished by the contents of the interview. A transcript of the interview was in fact only provided, on our request, at the close of the hearing before us. It transpires that at the outset of the interview the appellant was further arrested on suspicion of converting firearms. The interview proceeded under caution, with a solicitor present. The appellant was repeatedly asked questions relating to how he came to have the item, what he thought it was, how long he had had it and how much he had paid for it, if he bought it. He was asked on several occasions if he was converting firearms. He was asked why he had various tools and piping in his flat. He was also asked about his dealings in deactivated firearms. Quite aside from the legal burden being on him, his failure to answer such questions in the circumstances clearly justified the giving of a s.34 direction. The judge properly left to the jury in his summing up of the appellant’s case his contention that he did not answer questions in interview because he was in a panic, being then held on suspicion of attempted murder, which obviously was a more serious matter than the count which he eventually faced at trial.

[49]Mr Bishop also generally attacked the safety of the conviction (albeit he did not use the old “lurking doubt” phrase). In particular, he said that the expert found the gun to be convertible only on disassembly: until then, the expert himself had not appreciated that this was a convertible (let alone readily convertible) imitation firearm. Mr Bishop also stressed that there was no evidence that the appellant himself, in the time that he had it, had sought to disassemble the item: and, as manufactured, it was ostensibly only a blank firing imitation gun. He advanced other points in elaboration of his argument.

[50]There is nothing in this ground either. We note that no submission of no case to answer had been made. All these matters, and the nature and extent of the appellant’s knowledge and reason for suspicion, were matters for the jury. They heard the appellant’s evidence. They did not accept it.

Disposition

[51]Accordingly we dismiss this appeal and application. Section 1(5) of the 1982 Act placed a legal (persuasive) burden on the appellant. The judge was right so to conclude: and his direction to the jury in the summing up in consequence was correct. The trial was fair in all respects. The conviction is not unsafe.

Sentence

[52]The judge imposed a sentence of 5 years’ imprisonment, with time spent on remand in custody to count towards sentence. He found that there were no exceptional circumstances. In his detailed sentencing remarks, the judge made clear that he rejected as “implausible and verging on the bizarre” the explanations given for the purchase of the deactivated weapons from Mr Camm; that it was “perfectly clear” that the appellant knew far more about guns than he was prepared to let on; that he had lied about the circumstances of acquiring this item and on other matters, and that he (the judge) was sure that the appellant had reason to suspect that the item was readily convertible into a firearm.

[53]Those findings were properly open to the judge. He was entitled to place reliance on the lies told. His conclusion that there were no exceptional circumstances was a proper one: the suggestion by Mr Bishop that it was an “irrational” conclusion is untenable. Accordingly, there is no arguable basis for challenging the sentence imposed. So we dismiss that application also.