K v DPP [2006] EWHC 2183 (Admin)

Case No CO/3851/2006[2006] EWHC 2183 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 26th July 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE PENRY-DAVEY
DAME HEATHER STEEL DBE
Between
KClaimant-v-
Between
DPPDefendant
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 M PROCTER (instructed by Messrs Sarfo Solicitors) appeared for CLAIMANTMR J FARMER (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE GAGE:

[1]K is now aged 16. On 25th November 2005, at the Cambridge Crown Court, he pleaded guilty to three counts of robbery. On 14th December 2005, the Cambridge Youth Court convicted him of one offence of possessing an imitation firearm with intent to cause a person to believe that unlawful violence would be used against him. He was committed for sentence pursuant to section 3C of the Powers of Criminal Courts (Sentencing) Act 2000 to the Crown Court for sentence. He was dealt with by the Crown Court on 30th January 2006 by sentences of three years' detention pursuant to Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of each of the three robberies, to which he had pleaded guilty, and, in respect of the possessing of an imitation firearm, no separate penalty.[2]He appeals by way of case stated against his conviction in respect of the firearms offence. The matter comes before this court both in relation to his appeal against conviction and also in relation to his appeal against sentence. The first matter, therefore, that we have to deal with today is the appeal against conviction. For these purposes, we now constitute ourselves, and have constituted ourselves for the purposes of argument in relation to the conviction, as a divisional court.[3]In relation to this matter, the Justices found as follows. On 3rd September 2005, the appellant and a young man named Turner were both residents at 1 Fitzwilliam Road, Cambridge, a residential care unit for young people. On the morning of 3rd September, the appellant and Turner were taken on a day trip to Great Yarmouth by Pollyxeni Michael and Jon O'Driscoll, residential care workers at the care home. During their time at Great Yarmouth, the boys were given a total of £15 each by their careworkers to spend amusing themselves. The boys purchased two BB guns, each at Great Yarmouth, with some of that money and attempted to conceal them in their trousers, as there had been a ruling previously made at the care home that BB guns were not permitted on the premises. The appellant and Turner were unsuccessful in their attempts to conceal them from Michael and O'Driscoll. One of the guns was destroyed when Turner sat on it at Great Yarmouth and was disposed of in that town. The appellant admitted possession of one gun, which was confiscated by Michael and O'Driscoll before the party left Great Yarmouth. The appellant and Turner were returned to 1 Fitzwilliam Road by Michael and O'Driscoll, having stopped on route at the appellant's mother's house to leave the confiscated BB gun at her house. On return to the care home, Michael and O'Driscoll believed that neither boy had a BB gun in their possession.[4]Michael and O'Driscoll informed Michael Alhmage and Stephen Gibbs, other residential careworkers at the care home, of the day's events, including details of the discovery of the BB guns at Great Yarmouth when handing these over to the care of the latter two members of staff. At this time, none of the staff thought that there were any BB guns at the care home. Later, the appellant became abusive towards Alhmage, making obscene comments about his wife. During the course of the evening, the appellant and Turner, who had both left the care home and returned independently, were seen by staff using BB guns in the care home. At about 10pm, the appellant and Turner entered the lounge and each had a BB gun in his hand. Turner was on his feet and the appellant was sitting on the sofa opposite where Alhmage was sitting. Alhmage told him to remove the BB gun from the premises as they were banned. Turner, who was in very close proximity to Alhmage, reacted to this by calling him a "prick", moving closer to him and pointing his BB gun at Alhmage's head and saying, "If you don't shut up I'll shoot you in the fucking face". Immediately after this, the appellant raised his BB gun, pointed it at Alhmage and said "Pow". Alhmage was intimidated by these threats and as a result did not subsequently return to work at the care home.[5]The incident was witnessed by two other residential care workers who had recently arrived to work on the night shift. At the time that the threats were made, Alhmage was aware that the BB guns were not real guns but fired plastic pellets. Alhmage and Gibbs immediately left the lounge to call the police and the other care worker, Hondo, remained to explain to the boys the dangers of using BB guns by illustrating the example of the harm that could be caused by a pellet in the eye. At this, the appellant fired a pellet at the wall, which caused Hondo to fear for his safety and he followed after Gibbs and Alhmage. All of the staff went to the office. The staff remained locked in the office until the police arrived due to the behaviour of the boys and, whilst in there, Alhmage was subjected to further obscene abuse from the appellant about his wife.[6]The Justices went on to find as follows at paragraph 7:
"We were of the opinion that: (a) The guns in the possession of Turner and the Appellant were not real firearms but BB guns. (b) They had the appearance of a firearm and therefore came within the definition of an imitation firearm in s57(4) of the Firearms Act 1968 which defines an imitation firearm as 'any thing which has the appearance of being a firearm... whether or not it is capable of discharging any shot, bullet or other missile'. (c) Whilst Mr Alhmage knew the guns were imitations, his knowledge of that fact was irrelevant to whether the Appellant had committed this offence. Provided the Appellant had a thing in his possession which had the appearance of being a firearm that element of the offence was satisfied and was not dependent on the knowledge of the victim or witnesses."
Pausing there, that finding is the centre and focus of the argument in this appeal. The findings continue:
"(d) The BB gun was capable of firing a missile and we were of the opinion that discharging it into the face of the victim at close quarters had the potential to cause serious injury. Taking the Appellants actions together with the threats issued by him and Turner, we had no doubt that the Appellant's purpose was to use the gun to make Mr Alhmage believe that unlawful violence would be used against him."
[7]Having made those findings, the Justices found both Turner and the appellant guilty. The questions for the opinion of the High Court are:
"(a) Were we correct in law to conclude that whether a thing is a imitation firearm is a question of fact to be determined according to the physical appearance of the thing in question only and not according to the actual impression made upon the victim? (b) Were we correct to conclude that the Appellant had the requisite intent in circumstances where the victim knew that the gun in question was not a real firearm?"
[8]It is in that latter question, again, that the focus of this appeal had been concentrated. In my judgment, it does not quite encapsulate the issue in this appeal but it has been sufficiently deployed in a way which enables this court to make a determination.[9]It is submitted on behalf of the appellant that the policy of the Firearms Act is to prevent the use of, first, firearms in circumstances described by the Act and, secondly, the use of imitation firearms which might cause a person or persons to fear violence in the mistaken belief that the gun was a firearm. Additionally, the first point taken was that whether or not the gun was an imitation firearm depended to some extent upon the perception of the victim. It is conceded now on behalf of the appellant that the question of whether or not on an imitation firearm is an imitation firearm is to be made by the tribunal of fact on an objective basis. I should say a little bit more about that in a moment.[10]The real point made by Mr Procter on behalf of this appellant is that that the words of section 16A import that the offence cannot be committed where the victim actually knows that the imitation firearm was in fact an imitation firearm. It is submitted that the words of the section "by means thereof" imports into the section an element of or link between the actual appearance of the imitation firearm and the belief of the victim that it is likely to cause him or her unlawful violence. Put at its shortest, the point is that there must be a link between the intended appearance as a real firearm and the threat. Accordingly, submits Mr Procter, whereas here the victim knew perfectly well that it was an imitation firearm, there was no such link between the threat and the fact that the thing was an imitation firearm. For the respondent, Mr Farmer submits that the facts as found by the Justices were plainly proved that the object came within the meaning of section 16A of the Firearms Act 1968.[11]We start with the definition provided by section 57 of the Firearms Act of a firearm and an imitation firearm. Section 57, in the material parts, subsection (1), reads:
"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 the section applies shall be construed as also excluding component parts of, and accessories to, firearms of that description."
[12]Section 57A provides comprehensive definitions of various matters, one of which is an imitation firearm. That is defined in the following terms:
"'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]Before the Justices, it was argued on behalf of the respondent that the question of whether a thing is an imitation firearm is a question for the tribunal of fact, in this case the Justices. The Justices, as I have indicated, in their findings accepted that submission and it is now conceded by Mr Procter that that is correct. In our judgment, the respondent's submission that items will plainly be imitation firearms by an objective view of them is one for the tribunal of fact to make. There may be other items which are clearly not imitation firearms. Again, the tribunal of fact will decide that on an objective basis. In a case where there may be some doubt as to whether the thing was an imitation firearm, the authorities show that the tribunal of fact may take into account the views of witnesses who saw the thing, see R v Morris and King 79 Cr.App.R 104. In this case, the Justices, having seen the BB gun, were in our judgment quite entitled to hold that it was an imitation firearm.[14]The next question is whether or not it was proved that the use made of it by the appellant was such as to amount to an offence under section 16A. It is there that, as we have said, the real issue arises. Section 16A reads:
"It is an offence for a person to have in his possession any firearm or imitation firearm with intent -- (a) by means thereof to cause, or (b) to enable another person by means thereof to cause, any person to believe that unlawful violence will be used against him or another person."
[15]In this case, the court was dealing with limb (a) of section 16A. As I have said, it is submitted on behalf of the appellant that in this case the knowledge of all those present, and in particular the complainant, in the care unit that the gun was a BB gun and not a real firearm was such as to make the commission of the offence on this occasion impossible, because, it is submitted, what has to be shown is that the threat was a threat of the infliction of violence by a real firearm, which was perceived by the victim to be a real firearm. Again, as I have said, the response from the respondent is that, once the Justices had found the thing to be an imitation firearm, its character cannot change depending on the knowledge and perception of the person against whom it is used. Mr Farmer, on behalf of the respondent, submits that on the Justices' findings, first the appellant had in his possession an imitation firearm; secondly, by means thereof, he intended to cause a person, the complainant, to believe that unlawful violence would be used against him. Mr Farmer relies on the fact that the complainant knew very well that the imitation firearm was capable of firing a pellet which could cause him injury, such as injury to his eye. Mr Farmer also relies on the fact that a number of the sections in the Firearm Act which deal with imitation firearms do not depend upon the perception of the victim; for instance sections 17, 18 and 20 provide examples of that. Each counsel relies on section 19 to support his submissions in this case.[16]On the facts of the case, the BB gun was capable of firing a pellet which, if fired at close range to the face of another person, could do some injury. The Justices found that the BB gun had the potential to cause serious injury. In those circumstances, it seems to us immaterial that the complainant knew that the gun was an imitation firearm. He did fear violence. The Justices found that the appellant's purposes or intention was to make the complainant fear violence. The Justices also found that he had in his possession an imitation firearm. Accordingly, for my part, I accept the submission made by Mr Farmer that all of ingredients necessary under section 16A for the commission of the offence were proved. I further reach the conclusion that it matters not, as the Justices said, that the complainant was aware that it was an imitation firearm.[17]In those circumstances, in my judgment, the Justices reached the right conclusion in finding the appellant guilty. I should simply add: the fact that everyone involved knew that the thing was an imitation firearm is something which the court can, and indeed is bound to, take into account when assessing the penalty for the offence. In the circumstances, for my part, I would dismiss this appeal.

MR JUSTICE PENRY-DAVEY: I agree.

DAME HEATHER STEEL: I agree.