Case No: 200806753 D4 
Neutral Citation Number: [2009] EWCA Crim 2736
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 21st October 2009
 
B e f o r e:

LORD JUSTICE LAWS 

MR JUSTICE KEITH 
 
THE RECORDER OF DOVER
Sitting as a Judge of the Court of Appeal Criminal Division 
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R E G I N A 

v 

KADIE SPENCE
 
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Mr J Anders appeared on behalf of the Appellant 
Mr B Kelleher appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE LAWS:  On 17th November 2008 at the Inner London Crown Court before His Honour Judge Wakefield, the appellant was convicted of possessing a firearm with intent to endanger life contrary to section 16 of the Firearms Act 1968.  That was count 1 of the indictment which he faced.  Counts 2 and 3 alleged alternatives on which no verdict was taken.  The appellant was sentenced to 6½ years' imprisonment, less 264 days spent in custody on remand.  He now appeals against conviction by leave of the single judge.  The grant of leave was limited to two grounds and the appellant seeks to renew a third ground, as we shall explain.
2.	We may summarise the facts as follows.  The appellant was seen by two plain clothes police officers at about 1.10 am on 18th February 2008 outside a public house near Deptford.  At this stage he was simply described as a black male wearing a grey tracksuit and having a black shoulder bag.  He did not dispute that the person seen was him, and that he was also the person subsequently arrested by armed police officers in a Vauxhall Zafira.  
3.	The applicant's own evidence was that he left the Swiss Tavern public house a little after 1 am.  The two officers told the jury that the appellant acted suspiciously walking near and in between parked cars and in an agitated manner and fiddled with a black shoulder bag he was carrying.  The appellant was to explain that he was approaching people trying to get a lift home because he could not find a taxi.  He was to maintain he had never been in possession of a firearm and the firearm that was later found was never in his bag.  
4.	The officers also testified that while they had the appellant under observation, another black male, whom they had never seen in contact with the appellant, walked near to their parked vehicle and shouted "Police".  As a result of this, the police officers drove away but not before one of the officers, the driver of the police vehicle, stated that he saw the appellant had eye contact with this male by way, it seemed to the officer, of acknowledgment; and additionally the appellant walked in a more agitated manner than before. 
5.	In evidence the appellant was to state that he was offered a lift in the Vauxhall Zafira vehicle which was being driven by a man called Jackson, but which was on hire in the name of a girlfriend of another man, Merrick, to whom we shall be referring later.  The appellant sat in the front passenger seat.  He believed the front passenger window was already open when he entered, so he said.  He recalled that Jackson was summoning Merrick by calling him through the passenger window.  The appellant admitted that he was finishing a spliff when he got into the vehicle.  The evidence was that they drove off and almost immediately came to the attention of the police officers in two marked police vehicles which were driving in the opposite direction.  These two vehicles turned round.  They gave chase.  The police officers in the vehicles all gave evidence.  They all stated that the suspect vehicle drove away accelerating hard.  All these vehicles had travelled no great distance when the officers saw an object being discarded from the near side of the Vauxhall.  One officer, PC Price, was to give evidence that, regardless of the fact that he was in the second police vehicle and so some distance away, he had seen an arm extended out of the front passenger window which then discarded the object in question.  He explained that the arm was clothed in grey material.  The appellant was the only occupant of the Vauxhall wearing grey.  He was found by the police to be sitting in the front passenger seat.  He denied at trial putting his arm out of the window.  He said that on realising the police were pursuing the Vauxhall, Jackson drove away from them and then he, Jackson, threw what must have been the gun wrapped in a bandana out of the near side window.  
6.	The police in due course found the firearm by the road and a bandana close by.  The firearm was loaded with four live rounds of ammunition.
The prosecution's expert had found six fibres in the appellant's bag which were the same type as those from which the bandana had been made.  The Crown acknowledged, however, that the fibres were of a commonplace type.
At the end of the Crown evidence, the defence made a submission of no case to answer on count 1.  It was, I understand, accepted ‑‑ it is certainly accepted now ‑‑ that there was sufficient evidence for the jury to be satisfied that the appellant had been in possession of the gun.  The case being made on the submission was that there was no legally sufficient evidence to support the accusation of the particulars that the appellant was in possession of it "with intent to endanger life".  
Unfortunately, the transcript of the judge's ruling on the no case submission, made on 12th November 2008, is incomplete.  The appellant says that the judge was at first disposed to accede to the submission.  The Crown had chosen to phrase count 1 only in terms of the first limb of section 16 of the Firearms Act 1968, which required proof that the appellant had intended to endanger life.  However, the subsection includes a second limb which would be satisfied on proving that the defendant intended to enable another, by means of a weapon, to endanger life.  What the judge did was to accede to an application by the Crown to amend count 1 so to include the second limb as an alternative, and then to hold that there was a case to answer on the amended count.  
The first ground of appeal is that the judge should not have allowed this amendment to the indictment.  However, as it seems to us, the amendment occasioned no unfairness to the appellant, for the reason that his case throughout was that he was not in possession of the firearm at all and he did not throw it through the window.  That case would have been the same had the indictment been in its amended form at the start of the trial.  There is nothing, as it seems to us, in the first ground of appeal taken on its own.
The second ground is that the judge should not have rejected the no case submission on its merits.  The question therefore is: was there evidence fit to go to the jury on count 1 as amended?  It is clear from Bentham [1972] 3 AER 271 that the intention required to be proved for either limb of section 16 need not be immediate and unconditional.  At 275J it was said: 
"The mischief at which the section is aimed must be that of a person possessing a firearm ready for use, if and when occasion arises, in a manner which endangers life." 
On the facts of the present case: 
1.  The gun was loaded with four rounds of live ammunition. 
2.  The gun had been modified to enable it to fire live ammunition. 
3.  The cartridges found had also been modified to constitute live ammunition, having been manufactured as blanks. 
4.  The gun was concealed in a bag akin to the position of a holster. 
5.  The appellant had the gun at night in the vicinity of a public house. 
7.	In our judgment, these facts allowed a reasonable jury to infer that the appellant intended, if and when the occasion arose, to use the gun to endanger life or allow another to do so.  Ground 2 therefore fails. 
8.	The third ground, for which as we indicated at the outset leave is required, is that the judge was wrong to refuse the appellant's application to adduce in evidence the bad character of a person who was not a defendant (namely the man Merrick) and also to refuse to allow the addition of hearsay evidence concerning the circumstances in which the bad character evidence arose.  This is the ground, as we have said, on which the single judge refused leave. 
9.	The ground relates to an application made by the defence on 13th November 2008.  It relates to a conviction recorded against Merrick.  Merrick was in the rear seat of the car at the time the appellant was arrested.  The evidence that the appellant desired to put in was the fact that Merrick had himself been convicted of possession of a small disguised firearm, quite unlike the one in this case, which was found at his home.  That firearm had a 3 centimetre barrel but was capable of a firing a missile.  The application to admit this evidence was made under section 100(1)(b) of the Criminal Justice Act 2003, it being asserted that the evidence had substantial probative value in a matter of substantial importance in the case, namely the issue: who threw the gun out of the car window?  The appellant apparently claimed that Jackson and Merrick knew each other well.  It seems that at his trial relating to the small disguised firearm, Merrick had blamed Jackson for bringing the item to his premises.  The appellant desired to have hearsay evidence of this circumstance introduced at his trial.  
10.	The application to admit hearsay evidence was based, initially at least, on section 116 of the Criminal Justice Act 2003, dealing with the admission of evidence in cases where the witness is unavailable.  Counsel have referred to section 116(2)(e), where one of the conditions for admissibility of evidence under the section is that: 
"through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings . . . " 
Mr Kelleher for the Crown submitted, however, that there was no evidence before the judge about any fear on Merrick's part.  It seems that at some stage the solicitor for the appellant understood that Merrick was fearful of giving evidence, though the exact circumstances in which that understanding arose are not entirely clear.  It is tolerably plain, nevertheless, from the transcript which deals with the judge's ruling on these matters, that there was no evidence of any such fear placed before the judge.  We do not understand that any of the other conditions of section 116 are said to be met and, in those circumstances, there was no basis, as it seems to us, for the judge to accede to the application to adduce hearsay evidence under section 116. 
11.	However, the judge turned to section 114 and said: 
"I can do so [that is, admit the evidence] if satisfied that it is in the interests of justice.  In deciding that, I have to consider section 114(2).  The factors include the question of how much probative value Merrick's statement has in relation to the matter in issue, how important it is in the context of the case as a whole, the circumstances in which the statement was made, how reliable the maker of the statement appears to be, how reliable the evidence of the statement appears to be and whether oral evidence of the matter stated can be given, and the amount of difficulty involved in challenging the statement." 
The judge seems to indicate that Merrick was not at that stage at court, for he continued: 
"Leaving that aside, even were I to assume that Merrick is an unwilling witness and would not be willing to come and give evidence for the defence, I still reject the application to adduce the hearsay evidence of what he said in court at his trial.  He was facing a charge and it was in his interest to give evidence to say anything which would get him off the charge.  I understand that Jackson by then had been deported and was no longer in the United Kingdom.  In those circumstances, Merrick was really free to say what he wished in the court in order to exculpate himself." 
12.	The logic of the defence application to introduce the hearsay evidence must have been that it would afford an opportunity to submit to the jury that notwithstanding Merrick's conviction of the firearms offence charged against him, nevertheless a jury trying him might have been satisfied that his statement that he blamed Jackson for bringing the firearm to the house was true, and if the jury in the present case thought that the earlier jury might have been so satisfied ‑‑ or at any rate for their own part thought that the statement might be true ‑‑ why that might make it more likely than otherwise that it was Jackson and not the appellant who threw the gun out of the window of the Vauxhall car.  It seems to us, with respect, that this is as tenuous as it is speculative.  Moreover, it invites the jury effectively to consider a not uncomplicated satellite issue.  We are wholly unable to accept that the interests of justice required the judge to allow it in. 
13.	In those circumstances, there was no basis on which the judge should rightly have acceded to the application to admit the hearsay evidence.  The application to admit the conviction was of no utility without the hearsay evidence.  It follows that this ground is bad and we decline to grant leave in relation to it.