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Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday 5th November 1997

B e f o r e:

LORD JUSTICE POTTER

MRS JUSTICE EBSWORTH

and

MR JUSTICE FORBES

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R E G I N A

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MICHAEL DUHANEY

JOHN STODDART

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(Handed-down judgment of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR J MURRAY SMITH appeared on behalf of the Appellant Duhaney

MR D BARNES appeared on behalf of the Appellant Stoddart

MR D MARKHAM (MR I SLACK) appeared on behalf of the Crown

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REASONS FOR JUDGMENT

(As approved by the Court )

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Crown Copyright

Wednesday 5th November 1997

MRS JUSTICE EBSWORTH: On 28th February 1997 at the Crown Court at Inner London the two appellants pleaded guilty to an offence of attempted robbery and were sentenced to 6 years imprisonment.John Stoddart pleaded guilty to a further offence pursuant to section 18(1) of the Firearms Act 1968("the 1968 Act"); for that offence he was sentenced to a consecutive sentence of 30 months,making in his case a total sentence of 8 1/2 years. Stoddart appeals against conviction on the Firearms count,his plea of guilty following an adverse ruling by His Honour Judge Van Der Werff as to the interpretation of the statute. Both appellants appeal against sentence.

At about 12 midday on 25 November 1996 a Securicor van arrived at Crofton Park station. The appellants followed the Securicor guard, who was carrying a security box, into the ticket office. Duhaney approached and held him in a bear hug. The guard struggled and tried to hit Duhaney with the security box. He let the security box go. Duhaney opened it and found it empty. He looked toward Stoddart, who was standing nearby, and both ran out into the street.

Members of the public observed them and one gave chase in a van. A police car came by. Both men ran and split up. Stoddart threw down an imitation firearm, an Italian 8mm blank self-loading pistol, loaded with blank cartridges, which was later recovered. Stoddart was arrested hiding in a car, following a chase with the assistance of the member of the public in the van. Duhaney was arrested after being tracked to a shed by a police dog.

In interview, Stoddart said Duhaney picked him up in his car. They saw the Securicor van outside the station. They parked some distance away and returned quickly to the front of the station. The Securicor guard went into the ticket office. They followed him in. Duhaney went first. Duhaney grabbed the Securicor guard in a bear hug from behind. He said "drop the case". The man dropped the box. It fell open. Duhaney looked inside and found it was empty. They ran out. The gun was still in his pocket. He declined to say whether Duhaney knew he had it. He never produced it. He dropped in on purpose during the chase.

In interview, Duhaney said the previous week they were driving past and saw the security guard come out and put his case on the ground while he opened his van and concluded that they could run by and take it. They came back the following week to do so. The plan changed to taking the case as the guard went in because he might well have money in it then. Duhaney approached and bear-hugged the guard. He did not struggle. He was calm. The case was not pulled from him. He actually dropped it. It was open. There was nothing in it. Duhaney let go of the case and ran out. He was chased and found by a police dog and arrested. He had never seen Stoddart's gun before.

Counsel for Stoddart conceded before us that the intended robbery had been conceived the previous week as Duhaney had said in interview; however, Stoddart's position was ambiguous as to whether the dropping of the weapon was accidental or by design. He accepted that he was well aware it was in his possession when he set out with Duhaney to commit the robbery, but claimed that he had it with him to sell and not for use in the crime. He had maintained a different factual position in the court below.

It was contended on behalf of Stoddart that, although he had the firearm on him during the course of the robbery attempt he had no intention to use it for the furtherance of the robbery and could not be convicted under the section. The Crown submitted that the appellant's two concessions in respect of the gun, namely, that he "had it with him" and that he "had the intention to commit an indictable offence whilst he had it with him", brought him within the plain meaning of the statute. There was no need to prove any intention to use the firearm, still less any actual use.

The judge accepted the argument for the Crown and ruled that the plain words of the statute did not make the intended use a necessary ingredient of the offence. He held, beginning at p3H of his ruling, "The words of the section do not say that and so it seems to me that if it be proven, as seems to be established in this case to be right, that he had an imitation firearm with him, that at the time when he had it with him he intended to commit an indictable offence, which he did, that therefore he must be guilty, and that is my finding of law."

The essence of the Crown case and the judge's ruling was that the simple coincidence of the formation of the intent to commit the robbery with the actual possession of the weapon was sufficient for guilt to be established. No further element or nexus was required, non-use of the weapon going only to mitigation of sentence.

At the outset of the hearing both counsel maintained their stance taken below. However, each had to reconsider in the light of the factual concessions by the appellant that the intention to commit the robbery was formed the previous week, that when he set out with Duhaney on 25th November 1996 it was to carry through that intention, and that he consciously took the gun with him, albeit with the purpose of selling the gun and not to use it in the crime.

There is no direct authority on the point raised in the appeal, although there are cases rising from the construction of section 18 of the 1968 Act.

Parliament has provided for a series of offences, varying in gravity, relating to firearms. The clear overall purpose is to deter the criminal or potential criminal from using,carrying or possessing a weapon or imitation weapon.

Section 18 provides:

1)It is an offence for a person to have with him a firearm or imitation firearm with intent to commit an indictable offence, or to resist arrest or prevent the arrest of another, in either case while he has the firearm or imitation firearm with him.

2)In proceedings for an offence under this section proof that the accused had a firearm or imitation firearm with him and intended to commit an offence, or to resist or prevent arrest, is evidence that he intended to have it with him while doing so.

The appellant's case is that the carrying of the firearm and the criminal intent are directly related in that the appellant must be shown to have the firearm with him in order to further his criminal intent. It is common ground that the actual use of the weapon is irrelevant.

The section first received reasoned analysis in R v Kelt(1977) 65 Cr App R 74. The facts were that, on an occasion when police had visited the home of the appellant to arrest him at a time when the appellant was in bed, a "robber's kit", including a sawn-off shot gun had been found in the kitchen. The appellant's explanation was that he was keeping it for a friend. The issue in the case was whether in those circumstances the appellant could be said to have "had with him" the gun which was discovered. It was held that the mere fact of possession was not enough. It had to be shown that there was a close physical link with the accused and that he had immediate control over it; it was not necessary to show he was carrying it. Scarman LJ at p 76 said:

"We look first at the submission that the offence created by section 18 is one of carrying with criminal intent.

Section 18 appears in that part of the Firearms Act 1968

concerned with the prevention of crime and the preservation of public safety. A number of sections in that part of the Act create a number of offences and in order to construe properly section 18, it is necessary, in our judgment, to have in mind the scheme of those offence-creating sections. They are sections 16 to 24 inclusive. It will be observed in regard to these sections that the draftsman had in mind throughout that there was a clear distinction between possession and having a firearm with one.

Section 16 makes it an offence for a person to have in his possession a firearm with intent by means thereof to endanger life. Section 17 makes it an offence for a person to make or attempt to make any use whatever of a firearm with intent to resist or prevent arrest. Section 18, to which I have already referred, makes it an offence for a person to have with him a firearm with intent to commit an indictable offence. Section 19 makes it an offence for a person, without lawful authority or reasonable excuse, to have with him in a public place a loaded shotgun or weapon. Section 20 makes it an offence if a person who has a firearm with him enters a building as a trespasser. Section 21 makes the possession of a firearm by a person who has been sentenced to imprisonment an offence. Section 22 deals with the acquisition and possession of a firearm by minors. It is an offence for a person under the age of 14 to have in his possession a firearm in certain circumstances. Under section 22(3) it is an offence for a person under the age of 15 to have with him an assembled shotgun. It is clear that the legislature has drawn a distinction in this collection of offence-creating sections between possessing a firearm and having a firearm with one.

There is an indication that the sections which make it an offence to "have a firearm with him" in certain circumstances were intended to deal with carrying firearms. As Mr. Grunwald submits, the indication comes from the marginal notes. Each section which creates an offence for a person to have a firearm with him has a marginal note which includes the word "carrying." Where this phrase is used in other criminal statutes, one finds also the same marginal note. For example, in the Prevention of Crime Act 1953, it is an offence for a person without lawful authority or reasonable excuse to have with him in a public place an offensive weapon and the marginal note reads "Prohibition of the Carrying of Offensive Weapons."

At the foot of p 77 Lord Scarman went on:

"But one thing is clear in our judgment: the legislature has drawn a distinction between a person who has a firearm with him and a person who is in possession of a firearm. Some of the offences created by the sections to which I have referred are offences of possession, others are offences of having with one a firearm. This cannot be merely a semantic distinction, it must be a distinction of substance. The legislature must have had in mind that, in regard to those offences where it is an offence for the person to have with him a firearm, there must be a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him.

Certainly it is necessary to warn the jury, when summing up in a case under section 18, that the mere fact of possession would not be enough to establish the offence. The evidence must take the matter one stage further and be such that they are satisfied that the person charged was not only in possession but had with him the firearm with intent to commit an indictable offence while he had the firearm with him."

That case was not directly concerned with the question before us but the last paragraph quoted is of considerable assistance.

In Rv Guy 1991 93 Cr App R 108, where the point again was not directly in issue, this court gave some guidance as to the use of the section in the overall context of the 1968 Act. The appellant had been charged with robbery and with an offence under s 17(2) of the Firearms Act. A technical problem arose as to the applicability of that section;the court expressed the view a charge could have been preferred under s 18(1).

At p 111 Henry J said:

"As to the choice of the appropriate firearms offence, there is perhaps little that can be said by way of guidance. Sections 16 to 25 inclusive of the Firearms Act are grouped together under the heading " Prevention of Crime and Preservation of Public Safety." The sections are, generally speaking, arranged in descending order of gravity. This can be seen from the maximum sentences prescribed by Parliament, with the maximum sentence for offences under section 17(2) and 18(1) having been increased to life by section 44 of the Criminal Justice Act 1988. So now the four offences, namely those under section 16, 17(1),17(2) and 18, all carry a maximum sentence of life imprisonment. Any one of those sections might be appropriate to an armed robbery, depending of course on the particular facts of each case. The scheme of the Act was considered by the Court in Kelt (1977) 65 Cr.App.R. 74, which emphasised the different formulae used by the Act, and the necessity to distinguish between using a firearm (section 17(1)), having the firearm with intent (section 18) and possessing a firearm (sections 16 and 17(2)). Where firearms are carried on a robbery, the reported cases show that sometimes the offence is charged under section 17(2) as here, though more often it is under section 18(1). They are not mutually exclusive, though they are different. Section 17(2) deals with a person who has a firearm in his possession at the time of committing or being arrested for the Schedule 1 offence. Section 18 deals with the person who has a firearm with him with intent to commit an indictable offence, so he will usually(but not necessarily, see Kelt) be carrying the weapon, as opposed to merely having it in his possession. Additionally, section 18 may be used where the accused man is apprehended before he commits the offence(though its use is not restricted to such a case)."

While the choice of words last quoted suggests a positive link between the defendant's "having with him" the firearm and his intent to commit an indictable offence, it does little to assist on the question before us.

In R v Houghton, CA transcript 13th October 1981, the Court considered the relationship in time between the use of a firearm and the formation of the intention to commit a criminal offence. In that case the appellant had set out from home during the afternoon in possession of an imitation gun. During the evening, being by then drunk, he summoned a taxi. When the fare was demanded he said that he had not got it, pulled out the gun and threatened the taxi driver. The principal defence was one of drunkenness, i.e. that, at the time of the offences of making off without payment and the s18(1) offence, he was incapable by reason of drink of forming an intent. The appellant argued, by analogy with The Prevention of Crimes Act 1953, that in order to convict, a jury must be satisfied that the intent to commit the offence and to use the firearm in the course of committing it must have been formed at "some perceptible interval before the continuous act of pulling it out and demonstrating it for the purpose of committing the making off without payment." The Court held that the two statutes had different objectives and that the cases relied on were particularly concerned with when a weapon not offensive "per se" became such by reason of the intention with which it was being carried.

Mustill J giving the judgement of the Court said at p4 F-H to p5 A:

"The purpose of the Firearms Act is not related to the carrying of firearms.The act is also concerned with their use,as is made quite explicit under s 17 of the Act.The purpose of the Act,in our judgement,in those sections which deal explicitly or by implication with the use of the weapon is to add an ingredient of gravity to the specific offence in connection with which firearms are used.Indeed to read the act in any other way would produce most unacceptable results."

We agree, save to observe in passing that we think that Mustill

J. must have intended to insert the word "solely" between "not"

and "related" in the first sentence.

The Judgment continued at 5E:-

"It is true that in s 17 one finds an explicit reference to the use of the weapon,but we do not concur that the omission of a similar reference in s 18 imports an intention to exclude the commission of an offence in circumstances such as the present.The safer course is to have regard to what s 18 actually says,namely,that it is an offence for a person to have with him a firearm or imitation firearm with the intent to commit an indictable offence.It seems to us that all the elements there set out were present in the case now under consideration."

Mr Barnes contends that the Crown must prove that the appellant's purpose of "having with him" the imitation firearm was to further the intent to commit the indictable offence. He sought to demonstrate the proposition by reference to 2 examples:-

1)if a man commits a robbery and produces an imitation firearm during the course of the robbery in order to achieve his object, there is plainly a link between the possession of the firearm and the intention to commit the offence.

2)if, on the other hand, a man is travelling to a fancy dress party wearing a cowboy outfit which includes a pair of Colt revolvers and en route decides to carry out an opportunistic handbag snatch, there is plainly no link between the possession and the intent to commit an indictable offence.

Mr Barnes submitted that it cannot have been intended that the second example should attract guilt under the 1968 Act.

Mr Barnes relies heavily upon Houghton. He says that, had the court been of the view that no link was necessary between the possession of the gun and the intention to commit an indictable offence, the defence submission in the case would have failed at its inception and the court would have made that clear. It is the essence of his argument that the language of the decided cases is consistent only with the interpretation that the gun must have been carried in furtherance of the crime intended. We consider that he goes too far on the plain language of the statute. If Parliament had intended to say "it is an offence... to have with him a firearm or imitation firearm with intent to use such a firearm to further the commission of an indictable offence", it would have done so. It seems clear to us that the section is intended to be wide enough to embrace those who set out to commit an indictable offence whilst intentionally carrying a firearm whether or not there is intent to use the weapon in the crime. There is always a risk that those who are carrying weapons will use them should the need arise, as cases such as Houghton demonstrate. That is what the 1968 Act ultimately sets out to prevent. The Crown's original argument, that mere coincidence of the two elements would suffice was too wide because it would include the man who commits or intends to commit the indictable offence, having with him a gun in circumstances where he may have been unaware he had it with him. It seems to us clear that if that were so, there would be no need of the statutory presumption contained in s18(2).

We consider that the ingredients of the offence under Section 18(1) are made out if it is proved:

(a) that the defendant had with him a firearm; (b) that he intended to have it with him and; (c) that at the same time he had the intention to commit an indictable offence or to resist or prevent arrest.

That this is so, and in particular that the requisite intent(s) under (b) and (c) are distinct rather than composite elements of the offence, is supported by the wording of Section 18(2) which renders proof of (a) and (c) probative of (b). It is the treatment of (b) as a separate and essential link in the complete offence which on the one hand negates the argument for the Crown that (a) and (c) together are sufficient and, on the other hand, means that the argument for the appellant goes too far in asserting the need for an intention to use or carry the gun in furtherance of the indictable offence.

We are unmoved by the fanciful example of the criminous cowboy, who, if charged with a section 18 offence, would be obliged to tender a plea of guilty on our above interpretation of the Section. No doubt the basis of his plea, if accepted, would earn him a lenient and/or concurrent sentence if charged also with robbery or theft of the handbag.

The effect of our interpretation is that, whilst we disagree with the trial judge's ruling on the facts before him, on the facts admitted before us the appellant had no defence to the count and there are no good grounds to invalidate his plea or set aside his conviction.

It is accepted that this was a planned robbery, to be carried out by two people.Stoddart was carrying the firearm. In the course of a Newton hearing the Judge considered and rejected his contention that he was carrying it in order to sell it and concluded it was carried to further the robbery. Duhaney was not a party to the firearm offence.The weapon was not used, nor was its use threatened.

Duhaney is 32; he has appeared before the courts on 9 occasions since he was a juvenile including a conviction in 1985 for causing grievous bodily harm and a conviction in 1994 for causing actual bodily harm. Stoddart is of similar age; he has a particularly bad record, having been sentenced to 2 years youth custody in 1984 for robbery, he was convicted in 1988 and 1992 of causing actual bodily harm and in 1991 and 1993 of possessing a bladed instrument. He has many convictions for dishonesty the most recent being in 1994. A custodial sentence in each case was inevitable;the length of sentence had to take account of the guilty pleas and the fact that the plea was to an attempt rather than the full offence.It had also to reflect the respective roles of the appellants. The deliberate carrying of a firearm or imitation firearm, albeit without use, is a serious offence. We have been reminded of the reported cases in this area, but do not find it necessary to set them out.It seems to us that the judge took too high a starting point when sentencing on a plea to the facts in this case. In our view the appropriate sentence for Duhaney was one of 4 years and for Stoddart 5 years in respect of the attempted robbery, with a consecutive sentence of 1 year for Stoddart on the Firearms Act offence, giving a total of 6 years in his case.

The appeal against conviction by Stoddart is dismissed. The appeals against sentence are allowed in each case and the sentences will be reduced as set out above.

LORD JUSTICE POTTER: On 17th October 1997 we indicated the result of the appeals in Duhaney and Stoddart and said we would give our reasons later. Those reasons are now set out in the judgment of Ebsworth J, which again was supplied to the parties a short while ago and is now available in the well of the court to any member of the press or public who wishes to see it.