Yong v R [2015] EWCA Crim 852

Case No 201400666 C4[2015] EWCA Crim 852
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PETERBOROUGH CROWN COURT
HIS HONOUR JUDGE MADGE
T20137030
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/05/2015
Before
LORD JUSTICE TREACYMR JUSTICE NICOLRECORDER OF STAFFORD – HIS HONOUR JUDGE TONKING
Between
MATTHEW YONGAppellantRRespondent
N. Doherty for AppellantD. Matthew (instructed by CPS) for RespondentHearing Hearing date : 28 April 2015
JudgmentLord Justice Treacy :
[1]On 14 January 2014 in the Crown Court at Peterborough the appellant pleaded guilty after re-arraignment on the second day of the hearing to possessing a firearm without a firearm certificate contrary to section 1(1)(a) of the Firearms Act 1968 (count 5). He was acquitted on the direction of the judge in relation to four counts concerning explosives, and no evidence was offered in relation to four further counts of making or having explosives under suspicious circumstances. In relation to count 5 he was sentenced by way of a conditional discharge for 12 months. This court rejected his appeal against that sentence earlier this year; see [2015] EWCA Crim 9. The court however gave leave to appeal against conviction.[2]Count 5 related to two flash eliminators. The particulars of offence were in the following terms:
“MATTHEW YONG on the 23rd day of November 2012 had in his possession a firearm, namely 2 flash eliminators, to which section 1 of the Firearms Act 1968 applied without holding a firearm certificate in force at the time.”
[3]Section 1 of the 1968 Act provides:
“(1) subject to any exemption under this Act, it is an offence for a person – (a) to have in his possession,…a firearm to which this section applies without holding a firearm certificate in force at the time, or otherwise then as authorised by such a certificate;…(3) this section applies to every firearm except – (a) a shotgun within the meaning of this Act, that is to say a smooth-bore gun (not being an airgun)…(b) an air weapon…[not falling within section 5(1) and not of a type declared by the Secretary of State to be especially dangerous].”
[4]Section 5 of the Act creates a class of prohibited weapons which it is illegal to possess. Section 5(1) identifies the weapons concerned.[5]Section 57 of the Act is concerned with definitions and provides:
“(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.”
[6]At the time Dr Yong was found in possession of the two flash eliminators he was not in possession of any prohibited weapon or firearm as defined in section 57.[7]On the first day of the hearing, apparently with a view to good case management, the parties invited

the judge to rule on the following question:

“Is a licence required to hold a flash eliminator on its own without a prohibited weapon within the meaning of the Firearms Act section 57(1)(a) and without any proof of any intention to own such a prohibited weapon?”
The judge answered that question in the affirmative and the appellant, having considered his position overnight, pleaded guilty to count 5 on the following basis:
“He was in possession of the flash eliminators…in order solely to test the fit and as a marketing aid of his own innovation of a less than lethal weapon which is an innovation which answered a call by the Centre for Defence Enterprise for research proposals to address the need for “new less than lethal (LTL) capability”
. The invention got interest from the UK Ministry of Defence.”[8]The original grounds of appeal settled by trial counsel posed the following question for the court by way of appeal against the conviction:
“Where a person is in possession of a flash eliminator which is capable or being an “accessory” to a “lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged” but is not nor intends to be in possession of any firearm to which such “accessory” can be attached is he guilty of an offence under section 1(1)(a) of the Firearms Act 1968? ”
Clearly then the original grounds of appeal were challenging the terms of the judge’s ruling.[9]However since that time Mr Doherty has been instructed as replacement counsel for this appellant and he seeks to formulate his grounds differently. He submits that the items defined in section 57 as component parts or accessories to a firearm can be placed into 3 groups:(a) Items which are component parts or accessories to a firearm which cannot be used with any non-controlled item. One example would be a barrel for a firearm which in reality could have no other use than as a component part of a firearm and of which possession without a certificate is an offence irrespective of the attendant circumstances.(b) Mixed use items, namely components and accessories which could be used with a controlled firearm but which have a legitimate use with non-controlled items. An example given is of a .22 sound moderator which can be fitted to a .22 air rifle or to a .22 rifle. The moderator is identical in every respect, but it is argued that in the first case no certification is required whereas in the second it is. It is submitted that a flash eliminator is an item in this category.(c) Components and accessories which are not controlled in any circumstances. For example, it is widely accepted that screws fall into this category.[10]Accordingly it is argued that whether an item in group (b) requires certification is fact-specific on a case by case basis. It is submitted that on the evidence before the Crown Court there was insufficient evidence for a jury to have reached the conclusion that the flash eliminators required certification, had the case been left to them and had they been properly directed. In short, the evidence revealed no case to answer. On the evidence, the judge should have withdrawn count 5 from the jury and entered a not guilty verdict. The appellant was deprived of a defence in front of a jury that in fact the two flash eliminators were not accessories to a section 1 firearm. That question of fact should have been left to the jury to determine.[11]Thus it can be seen that the focus of this appeal has shifted. The question posed to the judge and the correctness of his answer to it are no longer before this court. The issue now raised is one not directly before the judge and which focuses on the concluding words of section 57:
“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.”
That proviso which creates a category of non-controlled weapons for the purposes of section 1 (for example a shotgun) is now relied on by Mr Doherty as providing a basis for his argument that a flash eliminator may have what he calls a mixed use and thus falls within his category (b), requiring a case specific decision by a jury.[12]Returning to the matter as argued before the trial judge, we note that it is recorded that counsel for the defence told the judge for the purposes of his submission that he did not dispute that the two flash eliminators in this case were designed to be fitted to a firearm rather than to a shotgun or any other article outside section 5. The reference to section 5 is based on the witness statement of the Crown’s expert Mr Kabbani that one flash eliminator was almost certainly compatible for use with SA80 type assault rifles amongst others, and that the second flash eliminator was again for use with an assault rifle being compatible with a 7.62mm calibre assault rifle. Mr Kabbani was thereby describing in each case an accessory to a section 5 prohibited weapon. However it is right to record that in a later witness statement he said that while such flash eliminators are generally manufactured for fully automatic and semi-automatic assault rifles (to which section 5 applies), he could not exclude the possibility that these flash eliminators were fitted into a single shot rifle in which case section 1 would apply to each of them.[13]It does not seem to us that the distinction between section 1 and section 5 weapons is material in the present context. The concession made by defence counsel only required the judge to consider the matter on the basis that the flash eliminators were accessories to firearms which were required to be controlled or certificated. Whether the firearm fell within section 1 or section 5 its possession without a certificate would be an offence under section 1. Counsel was not then raising the potential for the flash eliminators to be used as an accessory to an item not requiring certification as is now the case.[14]In essence what Mr Doherty submitted is that the judge failed to consider the concluding words of section 57 which envisage an item being an accessory to something which is not a controlled firearm. In such a case, no offence contrary to section 1 would be committed. It is unsurprising that the judge below did not consider this part of the provision since it was not relevant to the specific question posed to him and since counsel made a concession which effectively removed that provision from consideration. The judge provided an answer, which in the view of this court was correct, to a question posed which is not now the basis of this appeal. Accepting that the appellant pleaded guilty in the light of that ruling it is hard to see how it could be said that the plea was in any way influenced by the question which is now posed before us.[15]The present grounds urge that the question now posed by Mr Doherty should have led the judge to rule that there was no case to answer. We do not think that that is the case. The position before the judge was that no evidence was called, but that submissions were made on the basis of the paper evidence before the judge. The evidence from Mr Kabbani was that the two items were for use as accessories either for section 1 or section 5 weapons. This was the position he had reached after considering possibilities. He made no reference to the possible use of the items with non-controlled weapons. Mr Hill, a Cambridgeshire police armourer, stated that both items were for use with rifles, so that at the least they fell within the category of section 1 firearms. Again he made no other qualification to that position.[16]The report of Mr Dyson, the defendant’s expert, agreed that the two flash eliminators were manufactured for use with assault rifles and agreed with Mr Kabbani that it was difficult to say whether they were for section 1 or section 5, weapons. He did not expressly state that the two eliminators were compatible for use with a shotgun, air gun or other weapon falling outwith both section 1 and section 5 of the Firearms Act. However he perhaps implicitly raised the point now made by Mr Doherty by stating that silencers are only subject to certification if fitted to a weapon that is either subject to section 1 or section 5, and gave the example of a .22 calibre silencer which could be used both with section 1 firearms and air rifles not subject to certification even though they are of exactly the same type and design. Having referred to sound moderators or silencers in that way his report states “it follows that if the flash hiders were attached to a firearm that is not subject to certification procedure under section 1, neither are they.”[17]However, it is far from clear that Mr Dyson’s report was before the judge when he was asked to rule, as Mr Doherty very fairly accepted. Moreover, the concession made by counsel to the judge foreclosed the possibility of such a point being taken. The question posed to the judge was based on the premise that the items recovered were solely for use with either a section 1 or section 5 firearm. Counsel who appeared for the appellant below was, we are told, experienced. It may well be that he did not pose to the judge the question now raised before us for tactical reasons, or because his instructions in the light of comments by the appellant both in interview and in correspondence prevented him from doing so. The matter has not been investigated with trial counsel. We raised this issue with Mr Doherty and inquired whether it was any part of his case before us that the conviction should be regarded as unsafe by reason of the concession made by counsel and/or the failure to take the point now advanced. We indicated that were such a point to be taken, it would probably necessitate an adjournment for inquires to be made of trial counsel. Mr Doherty made it clear that he did not wish to raise any criticism of trial counsel and that he was not pursuing such a point.[18]It seems to us that had the issue now raised before us been raised before the judge as a preliminary point he could not have ruled that there was no case to answer. There was evidence before the court from the Crown’s two witnesses which clearly showed that the flash eliminators were accessories to either a section 1 or a section 5 firearm. There was no dispute that there was no certificate in place for either flash eliminator. Accordingly, whether or not Mr Dyson’s report was before the judge, there was a case to answer.[19]In addition, there was other evidence supportive of the Crown’s case. Firstly, Ralph Barker, Cambridgeshire Constabulary’s Firearms Licensing Manager referred to correspondence with the appellant in which the appellant referred to his potential development of a “new less than lethal weapon”. This weapon would take the form of an attachment to fit over the muzzle of a soldier’s firearm; the attachment would absorb and use the discharge of ordinary rifle ammunition which would convert “otherwise lethal ammunition into less than lethal rounds”. The appellant also described to Mr Barker in an email having tested his invention on an M4 carbine using military specification ammunition. Secondly, in police interviews the appellant described matters in similar terms stating that a non-lethal projectile which would hurt the target but would not kill needed a working firearm and a live round to project it. Thirdly, Mr Dyson’s report referred to documents which he had seen showing that the design suggested by the appellant allowed non-lethal projectiles to be discharged from conventional weapons.[20]The material in the preceding paragraph may, as we have observed, explain why trial counsel did not take the point now pursued. That material shows that the firearm described as being used in conjunction with the flash eliminators was a lethal barrelled weapon and thus within the section 1 certification requirement. Accordingly there was no basis upon which a judge could have withdrawn the case from the jury had the question now raised been posed to him.[21]At the very least, had the trial been run along the lines now advanced by Mr Doherty, raising an issue that these accessories were mixed-use items in the sense referred to at paragraph 9(b) above, the issue would have to be determined as one of fact by a jury. We have considered R v Buckfield [1998] EWCA Crim 1322and are satisfied that, in a case where there is an evidential basis for doing so, the matter should be left to the jury to determine whether the items were in the circumstances accessories to a section 1 or section 5 controlled weapon, or whether they were accessories to a non-controlled item. There was some discussion in the written submissions made to us as to the part which a defendant’s intention can play in the determination of such a question when the statutory scheme is one of strict liability. This point which derives from a passage at the foot of page 4 and the top of page 5 of the transcript in Buckfield was not developed in oral argument, and, being unnecessary for the determination of this appeal, we say no more about it. We would however comment that if the “mixed-use” issue is to go to a jury, there must be a proper evidential basis for it. If the Crown has shown a prima facie case that an article is an accessory to a weapon requiring certification under section 1 as Mr Kabbani and Mr Hill did in this case after considering the possibilities, an evidential burden arises if the defence wishes to rely on the “mixed-use” exception provided by section 1(3) and the latter part of section 57.[22]Returning to the present case, it seems to us that the realistic position is that, on the evidence as it appears to have been placed before the judge, there was nothing to show that there was in fact a potential mixed use for these flash eliminators. What the appellant had said in correspondence and in interview did not raise the possibility of the use of these flash eliminators with a non-controlled weapon such as a shotgun. It clearly envisaged the use of the eliminators with a lethal barrelled weapon controlled at least by section 1, and thus with a firearm. The proviso at the end of section 57, and the possibility adumbrated by Mr Dyson simply did not arise on the evidence as it was before the judge when he made his ruling.[23]Accordingly it is not only impossible to see how the judge’s ruling, had the present point been taken, could have favoured the appellant, but also it is equally hard to see how on that basis the appellant has lost anything by not having the issue he now raises resolved by a jury. In those circumstances we do not find that there is anything to impugn the safety of the conviction and dismiss this appeal.