Neutral Citation Number: [2007] EWCA Crim 2750

Case No: 2006/04389/D3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL from the Central Criminal Court 
His Honour Judge Forrester 
T20038018/8019/8020/40410
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21/11/2007
Before :

LORD JUSTICE HOOPER
MR JUSTICE PITCHFORD 
and
MRS JUSTICE DOBBS DBE
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Between :

	Guner Salih	Appellant	
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	The Crown 	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr C H Blaxland QC for the Appellant
Mr M J Gadsden for the Respondent 

Hearing date: 2 November 2007
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Judgement

Lord Justice Hooper: 
1.	At the conclusion of the hearing on 2 November we announced that the appeal against conviction was dismissed. We then considered the appellant’s appeal against sentence and applications for leave to appeal sentence brought by two of his co-defendants. In the judgment allowing the appellant’s appeal against sentence in part and dismissing the two applications we set out the facts of this case in detail: see [2007] EWCA Crim 2757. We now give our reasons for dismissing the appeal against conviction.
2.	The appeal concerns count 7 of the indictment. Count 7 alleged possession on or before  1stApril 2003 of an Astra Cub self-loading pistol together with five rounds of ammunition in the magazine with an intent to endanger life contrary to section 16 of the Firearms Act 1968. Section 16 makes it an offence:-
“For a person to have in his possession any firearm or ammunition with intent by means thereof  to endanger life or to enable another person by means thereof to endanger life whether any injury has been caused or not.”
The pistol was in fact a prohibited weapon under s5 of the Firearms Act.  Section 16 does not require the firearm to be a prohibited one. 
3.	The pistol was found in the appellant’s trouser pocket at the police station following his arrest at his shop. 
4.	The judge, HHJ Forrester, said this about the offence:-
“What must the Crown prove?  The Crown must prove that on or before 1st April 2003, he possessed that firearm and ammunition, with intent to endanger the life of another.
Those words ‘on or before 1st April’ mean what they say. The Crown must prove not only that he possessed the firearm and ammunition, and there is no dispute about that, but also that he possessed it with the intent, if necessary, to use it to endanger the life of another. 
Those words ‘if necessary’ are important. The reason for that is this. The mischief for which s16 of the Act is aimed is that of a person carrying a firearm ready for use, if and when occasion might arrive, in a manner which might endanger the life of another person. Note those words ‘endanger life’. Not to kill, but to endanger life… The crown is not required to prove an immediate unconditional intention to endanger the life of another. It is sufficient if the Crown proves that he had possession of this loaded pistol, ready to use against another person, in a manner which endangered the life of that other person, if occasion arose. 
The Crown’s case in a nutshell is that he had this small pistol conveniently in his pocket because he was effectively dealing in guns, and therefore, within such a dangerous trade, he was a person who was arming himself in order for protection. Many shopkeepers, and other persons, may be in possession of quite large sums of money, either in the till or on the person, as Mr Salih was on 1st April. As I say, the Crown allege that he deliberately possessed it for his protection in the circumstances of him needing to protect himself.”
5.	The judge then went on to tell the jury what the defendant was saying about this pistol. 
“In answer to this charge, the defendant says that he had in fact possessed the gun for a long time. He says it was a relic from the days of his father-in-law in the shop. His father-in-law must have left it where the defendant found it, close to the till. His wife gives evidence to like effect, she saw a gun there. Therefore, even on the defendant’s account, he possessed it, undoubtedly he knew it was there, and he controlled it, in the sense that he said: he intended to hand it in on 1 April. He had undoubted control over it, a gun near the till in his own shop. But it is not a defence for the defendant to say, ‘I intended to hand it in as part of the amnesty’ if – and this is the importance of the way the date is expressed – if you are sure he committed the offence before that date, days, months, even years before that date of 1 April 2003. If the Crown prove the charge as it is set out there, the fact that he intended to hand in the gun on 1 April, as he says, will not afford him a defence, if it is proved that he had previously committed that offence.
However, although he admits possession of the gun, he denies the intent charged. He says he had no intent to have it for self-protection. In fact, apart from handing it in on 1 April, he had no intent in respect of the weapon at all. He just left it there, where his father-in-law had left it, over all those months – indeed years – there, beside the till. You decide whether his account may or may not be true. You will need to ask yourselves, why was the magazine loaded? Why was it loaded with five bullets, when it had a capacity for six? Why was it in his pocket, rather than beside the till?  Is [the expert] right, when he says that a cartridge casing in the desk tidy… had been fired in that Astra Cub. What about the evidence of [another expert] who found residue on the clothing and on the person if Mr Salih after his arrest? ...
The Crown point to all the circumstances and submit this gun had not lain idly by all this time, it had in fact been recently fired, hence the finding of the casing and the residue, and that this small gun was in his pocket being carried for self-protection. That is what the Crown say about it; the defendant, in answer to the point, says, as I have reminded you, that it had simply lain there for a long time, with the defendant having nothing to do with it, but, on the announcement of the gun amnesty, he decided to hand it in. He says he was quite unaware of the contents of the desk tidy, whatever was there was nothing to do with him, and if that cartridge had been fired from the gun, that must have been the responsibility of someone else, perhaps his father-in-law some time before July 1998.
He says the gun came to be in his pocket in the circumstances he described: he had it intending to hand it in during the amnesty, but hastily put it in his pocket because he did not want that young man, who was returning with the tea, to see it, and so it was convenient to secrete it in his pocket, and then the police came in, and it was an unfortunate coincidence that the gun ended up in his pocket at that time. He intended to hand it in after his work that day.
Look at all the circumstances, and decide for yourselves. Undoubtedly, he did have possession of the gun, and the ammunition, and it was in his pocket. The question is, why was it there? On all the evidence, are you sure that he had it for self-protection, as alleged by the Crown, and that the ingredients of the offence are proved? Or may it be that it was there in the circumstances described by the defendant, in which case the intention alleged by the Crown is not proved, and he is not guilty of the offence?”
6.	It was the Crown’s case that the gun had been brought to the shop recently by the co-defendant Andrew Meekey. The appellant called a witness to refute this suggestion. The witness was the son-in-law of the previous owner. The witness said that his father had had the pistol for protection for himself and his family as well as the staff. 
7.	During the course of the appeal we were provided with a defence note of part of Mr Gadsden’s final speech for the prosecution. According to that note Mr Gadsden says:-
“Count 7: Astra Cub self-loading pistol available to use as the situation requires. His brother-in-law said his father had it for precisely that reason. And we say the same: No one would have a loaded gun unless they were prepared to use it. [Guner Salih] was someone playing a dangerous game with dangerous people. His customer could of course turn on him, with a loaded gun and take him money back, (sic) or shoot him. So [Guner Salih] equips himself with a loaded gun, ready to rack and shoot.”
8.	Although the point now taken as a ground of appeal was not a point taken before the trial judge, Mr Gadsden said (during the course of the summing up and in the absence of the jury) that he had cross-examined the appellant on the basis that, in effect, he had the gun for self-protection, or the protection of himself, and his wife. 
9.	It is submitted by Mr Blaxland QC (who was not counsel at trial) that the trial judge should have directed the jury along the following lines, in the light of the way the prosecution put the case:-
“If the only reason why the defendant was in possession of the pistol may have been that he intended to use it if necessary in lawful self defence, then he would not be guilty.”
To put it another way the prosecution would have to make the jury sure that he intended to endanger the life of another unlawfully, not in lawful self defence.
10.	Mr Gadsden submits that it is no defence for a defendant to say that he intended only to use the firearm in lawful self-defence, subject to one proviso. Mr Gadsden accepts that whether the defendant intended to endanger life lawfully would (only) arise where the evidence tends to support a fear of imminent attack in circumstances where the defendant would be acting in lawful self-defence if he used the firearm. 
11.	Mr Blaxland relies in particular on Georgiades [1989] Cr. App. R. 206 in which he was counsel for the appellant. 
12.	We start with the case of Bentham [1972] Cr. App. R. 618. In that case this court held that it was not necessary to show an intention immediately to endanger life. The court also said (page 625) that the section did not require an unconditional intention. It would in most cases be impossible to establish an unconditional intention to endanger life until the moment before the firearm was fired. The mischief at which the section is aimed is that of a person possessing a firearm ready for use, if and when occasion arises, in a manner which endangers life.
13.	We turn to Georgiades. The appellant had been convicted of possession of two shortened shot guns with ammunition with intent by means thereof to endanger life. The possession was alleged to have occurred on 7 October 1986. The Court of Appeal quashed the conviction. It was the appellant’s case that he took the gun having heard his brother scream. The appellant thought that he might be attacked by persons entering the flat (in fact it was the police who were entering). He took the gun “in the hope that showing the gun to his assailants would cause them to run off, but that if they did not he would have put a shot in their legs ... .” The trial judge did not mention in his direction to the jury the possibility that the appellant had the gun in his possession with the intent to endanger life lawfully in his own defence. It was conceded by counsel for the respondent that “in certain rare circumstances” it would be a defence to a charge under section 16 “that the intent was to endanger life for a lawful purpose”. That concession was accepted by the court. Having examined the evidence at the trial the court concluded that the issue of self-defence should have been left to the jury. If the intent to endanger life may have been in lawful self-defence then, the court held, the appellant was entitled to be acquitted. 
14.	Mr Gadsden relied on a recent decision of another division of this court in Stubbs and Thomas [2007] EWCA Crim 1714. The court refused a renewed application for leave to appeal conviction. The applicant Thomas was arrested with two others in a vehicle outside a railway station. He was found to be in possession of a loaded pistol. In evidence Thomas had claimed that he was in fear of his life following an incident some six days earlier. He feared that as a result of that incident others were out for revenge. He said that he was in fear of his life and in the event that they did attack him he would have used the gun to scare them by shooting above their heads. In paragraph 12 the court said:-
“During the course of the trial there was an application for a ruling from the judge in respect of the issue of self-defence in the case relating to the applicant Thomas. It was submitted on his behalf that self-defence should be left to the jury in respect of count 5. In support of that submission the case of R v Georgiades [1989] 1 WLR 759 was cited to the judge. Having carefully considered the facts of Georgiades, and in particular the passage in the judgment of this court which appears between G-H on page 763, the judge ruled (correctly in our view) that for the issue of self-defence to be left to the jury there had to be evidence of fear of imminent attack. The judge ruled that there was no such evidence in this case. Accordingly, he ruled that self-defence was not available to the applicant. In his ruling the judge said this:
R v Georgiades [1989] 1 WLR 759. In that case it was held by the Court of Appeal that on a charge such as this it is a defence to show that the intent to endanger life had a lawful purpose, although cases where such a defence could be raised would be rare, that the question of whether the defendant had had a lawful purpose had arisen on the evidence and that, accordingly, that issue should have been left to the jury.
I have considered carefully the facts of that case, as set out in the judgment. I do not for one moment consider that the Court of Appeal intended to sanction in any way or in any circumstances the carrying of loaded firearms in the streets simply by reason of the fear of murderous attack, however genuine, or, indeed, justified that fear may be. For the issue of self-defence to be left to the jury there must, in my judgment, be evidence which tends to support a fear of imminent attack, as in the case cited above, in line with well-known authority on the issue of self-defence. ”
15.	The court went on to say in paragraphs 20 and 21:
“20.  On behalf of the applicant Thomas, Mr Scobie submitted that the trial judge had erred in law by failing to leave the issue of self-defence for the jury's consideration as a possible defence to the offence of possession of a firearm with intent to endanger life.  In support of that submission Mr Scobie relied on the authority of Georgiades to which we have already referred.  Mr Scobie stressed that it was Thomas' case that, at the time of his arrest, he had been recently handed the handgun for his own protection because he was in fear of his life. It was Mr Scobie's submission that the jury should have been left to consider the possible defence of self-defence if they concluded that he might have used the gun to shoot the Crooks brothers in lawful self-defence.  The judge gave the lack of immediate danger as to the reason for not leaving self-defence to the jury. It was Mr Scobie's submission that the judge erred in law in reaching that conclusion. 
21.  As we have already indicated, in our view the judge's ruling on this aspect of the matter was entirely correct.  However, we also quote the observations of the single judge in respect of this matter.  He said this: 
‘The judge was right to say that self-defence was available only if the risk of serious harm was imminent. Georgiades makes it plain that this defence will be available only in very rare cases.  It would wholly undermine this defence if members of criminal gangs could carry around guns because of the anticipation that they may be shot by others.  Here there was no evidence at all to leave to the jury as to the question of whether there was any imminent fear of attack.  For example, the applicant could have gone to the police station so there was no error of law by the judge in failing to leave this issue to the jury.’
We entirely agree with those observations. For those reasons, therefore, the renewed application for leave to appeal against conviction by the applicant Thomas is refused. 
16.	In our view, and in accordance with Stubbs and Thomas, the effectiveness of legislation designed to prevent the carrying of firearms or offensive weapons (as to which see Blackstone’s Criminal Practice 2008 para. B12.130) would be “seriously impaired” if anyone who reasonably feared that he might at some time be unlawfully attacked was allowed to carry such a weapon (see the commentary of Professor J C Smith QC in 1989 Crim. L. R. 452). If at the moment at which the defendant is alleged to be in possession of a firearm (or offensive weapon, as to which see Blackstone, ibid) he is anticipating an imminent attack and carrying the weapon for his own defence against a specific danger then that may be different.
17.	Mr Blaxland submitted that given what was said about conditional intention in Bentham a person lawfully in possession of a shotgun who accepted that he might use the shotgun should armed raiders attack his house, would be guilty of the offence against section 16. Bingham LJ, as he then was, provides the answer to that problem in Malnick v DPP [1989] Criminal L. R. 451 (a case not cited in argument before us).  Malnick was charged with possession of an offensive weapon without reasonable excuse. Bingham LJ drew a distinction between the individual who arms himself with an offensive weapon and those concerned with security and law enforcement. In our view and by analogy the public policy reasons which prohibit a person from possessing a firearm with intent to endanger life (or an offensive weapon) even though he might only use the firearm in lawful self defence would not apply to a person in lawful possession of a firearm whose intent is to use the firearm for purposes other than to endanger life, albeit he might have the conditional intention to which the court referred in Bentham. 
18.	We add only this. Georgiades establishes that if the defendant was acting in self defence at the moment when he is alleged to be in possession of a firearm, then he would not be guilty.  However if the possession with intent to endanger life is alleged to have occurred at some time before that moment and at a time when he was not in immediate fear of attack, then, in accordance with Stubbs and Thomas, Georgiades will not apply.  In Malnick the defendant, armed with a rice flail for the purpose of “self-defence”, went to J’s house to enquire whether J had taken a valuable car belonging to X and without X’s authority. The defendant was an expert in martial arts and an “adviser” to X.  Bingham LJ, dismissing the appeal, said that if private citizens set out on expeditions such as this, armed with offensive weapons, the risk of unlawful violence and serious injury was great, and obvious. The policy of the law must therefore be against such conduct; a conclusion, he said, consistent with the very narrow limits on the freedom of the citizen to arm himself against attack.
19.	This appeal is dismissed