BAILII Citation Number: [2000] EWCA Crim 3543
Case No: 199904543/Z3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Thursday 17th February 2000

B E F O R E :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)

MR JUSTICE POTTS

and

MR JUSTICE CURTIS

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R E G I N A

‑ v ‑

MARK JONES
(AKA DAMIEN NELSON AKA SUTHERLAND)

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MR V COUGHLAN appeared on behalf of the Appellant
MR J LACHKOVIC appeared on behalf of the Crown

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JUDGMENT
THE VICE PRESIDENT:  
1	On 16th June 1999 at Snaresbrook Crown Court, this appellant, before His Honour Judge Reynolds, pleaded guilty to possessing an imitation firearm upon arrest, contrary to section 17(2) of the Firearms Act 1968. That was count 2 in the indictment. Count 1, which alleged the theft of a chicken sandwich, was ordered to lie on the file on the usual terms. On 24th September the appellant was sentenced, in relation to count 2, to 6 months’ imprisonment to run consecutively to a sentence of 30 months’ imprisonment which had been imposed on a separate indictment for an offence of attempted robbery.
2	He appeals against conviction by leave of the Single Judge.
3	The facts were these. On 6th July 1998 the appellant was seen in Sainsbury’s supermarket in Stratford, East London, to select a sandwich from the counter, eat it and discard the packet. He left without making any attempt to pay. He was approached outside the store but ran off. He was detained shortly afterwards and escorted back to the store, where he was arrested for the offence of theft which ultimately gave rise to count 1. He was searched. In his possession was a small imitation firearm, loaded with three blank  cartridges.
4	In interview, he admitted having eaten part of the sandwich, but said he discarded it because he did not enjoy the taste. He had no money on him, but he said he had a friend who had intended to pay. He did not think he was committing any offence by leaving the sandwich. So far as the gun was concerned, he bought it for £36 from a fishing tackle shop some years earlier. He was carrying it, he said, in order to move it to a safer location as it had not been secure where he had previously kept it.
5	In the light of that background, on 16th June the Crown invited the judge to rule whether they were required to prove the theft alleged in count 1 before the appellant could be guilty on count 2. The judge ruled that that was not a necessary part of the proof of the count 2 offence. In consequence, the appellant pleaded guilty to count 2.
6	Before this Court, Mr Coughlan, in an attractive submission, advances a single ground of appeal. He says that the judge was wrong, as a matter of law, to rule that section 17(2) of the 1968 Act was breached on proof of the defendant’s arrest for one of the scheduled offences to that Act. The converse of that argument is, Mr Coughlan submits, that the judge ought  to have ruled that it was necessary to prove the actual commission of a scheduled offence before there could properly be a conviction under section 17(2).
7	Mr Coughlan submitted that section 17 requires, as he put it, more than the literal interpretation applied by the learned judge. Furthermore, if the judge were correct, the question of reasonable grounds on the part of a police officer for arresting a person might be the subject of necessary and complex enquiry. Therefore, unfortunate consequences flow from the judge’s ruling.
8	The further submission is made by Mr Coughlan that the consequences of a conviction of this offence are serious because, having regard to the mandatory sentence provisions of the Crime (Sentences) Act 1997, a second conviction for an offence of this or any other serious kind attracts a mandatory life sentence. Mr Coughlan gave, in the course of his written submissions, repeated orally before this Court, a number of examples of comparatively trivial activity which might have that ultimately very grave consequence, if the judge’s construction of the section were correct.
9	On behalf of the Crown, Mr Lachkovic submits that the words of the section are clear and unambiguous. They do not include any requirement that the person arrested shall have committed an offence, the reference  is to arrest for an offence. Similarly, in subsection (1) of the section there is no requirement for a scheduled offence to have actually been committed.
10	Both counsel drew our attention to a decision of this Court in the case of R v Baker 46 Cr App R 47, where the judgment of the Court was given by Lord Parker CJ, in relation to the construction of a precursor of the present section, namely section 23(2) of the Firearms Act 1937.
11	In order to examine the relative merits of these submissions, it is convenient first to rehearse the terms of section 17 of the Firearms Act 1968:
“(1)It is an offence for a person to make or attempt to make any use whatsoever of a firearm or imitation firearm with intent to resist or prevent the lawful arrest or detention of himself or another person.
(2) If a person, at the time of his committing or being arrested for an offence specified in Schedule 1 to this Act has in his possession a firearm or imitation firearm, he shall be guilty of an offence under this subsection unless he shows that he had it in his possession for a lawful object.”
12	Theft is among the offences identified in paragraph 4 of Schedule 1 to the Act.
13	In our judgment, without reference to authority, the words in section 17 appear to be clear and unambiguous. Subsection (1) is directed to the use of a firearm at the time of arrest. Subsection (2), as the judge said,  is directed to the carrying of a gun, not in itself an offence, but becoming an offence if it is carried either when a scheduled offence is being committed or when someone is being arrested for a scheduled offence. Clearly, as it seems to us, “arrested” must mean lawfully arrested. That concept embraces the situation where an arrest is being made by a police officer with reasonable grounds for suspecting that an offence has been committed.
14	Mr Coughlan concedes that, in the present case, the arresting officers did have reasonable grounds for suspecting an offence had been committed.
15	There is contained in subsection (2) the statutory defence open to a defendant, notwithstanding that he has a firearm in his possession in the circumstances identified in the subsection, whereby it is open to him to show a lawful object for that possession. In our judgment had it been Parliament’s intention, either when dealing with the use of a weapon in subsection (1) or when dealing with the carrying of a weapon in subsection (2), to require that an offence should actually have been committed to which the arrest related, Parliament could readily have said so. It did not say so. Therefore, as it seems to us, as a matter of statutory construction, the judge was right.
16	The question which then arises is whether, in the light of this Court’s decision in Baker, some different approach to the construction of this statute is incumbent upon this Court. In our judgment, it is not. The Court in Baker was not considering the provisions of the Firearms Act 1968; it was considering the provisions of the Firearms Act 1937.
17	It is apparent, to go no further, that the climate in relation to the carrying of firearms has changed in the last 40 years. That climate is evidenced by the fact that now ‑ which was not the position at the time of the 1937 Act ‑ the penalty for a breach of the provisions of section 17 is life imprisonment, not the much shorter terms with which the Court was concerned in Baker. Accordingly, our conclusion is that, even on the assumption that Baker correctly construed the provisions of the 1937 Act, it does not compel this Court to construe the 1968 Act in a way differently from that which, as it seems to us, the clear and unambiguous words of the section require. Accordingly, despite Mr Coughlan’s attractive submission, this appeal must be dismissed.