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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Zahid v R [2010] EWCA Crim 2158 (05 October 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/2158.html Cite as: [2010] EWCA Crim 2158 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
HHJ PILLAY
T220080541
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE FLAUX
and
MR JUSTICE SPENCER
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NASIR ZAHID |
Appellant |
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- and - |
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R |
Respondent |
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Mr. R. Jory (instructed by Crown Prosecution Service) for the Respondent.
Hearing date : 14th September 2010
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Crown Copyright ©
Mr Justice Flaux:
"On the other hand, I do not think Parliament intended to make a man guilty of possessing something when he did not know that he had the thing at all and it is there that the real difficulties begin.
Lord Parker C.J. [in Lockyer v Gibb]( [1967] 2 Q.B. 243, 248) was right (and this is conceded by both sides) in taking the view that a person did not have possession of something which had been "slipped into his" bag without his knowledge. One may, therefore, exclude from the "possession" intended by the Act the physical control of articles which have been "planted" on him without his knowledge. But how much further is one to go? If one goes to the extreme length of requiring the prosecution to prove that "possession" implies a full knowledge of the name and nature of the drug concerned, the efficacy of the Act is seriously impaired, since many drug pedlars may in truth be unaware of this. I think that the term "possession" is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general understanding of the word "possess." Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets. This would be so I think even if I believed them to be sweets. It would be otherwise if I believed them to be something of a wholly different nature. At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury who would probably decide it sensibly in favour of the genuinely innocent but against the guilty.
The situation with regard to containers presents further problems. If a man is in possession of the contents of a package, prima facie his possession of the package leads to the strong inference that he is in possession of its contents. But can this be rebutted by evidence that he was mistaken as to its contents? As in the case of goods that have been "planted" in his pocket without his knowledge, so I do not think that he is in possession of contents which are quite different in kind from what he believed. Thus the prima facie assumption is discharged if he proves (or raises a real doubt in the matter) either (a) that he was a servant or bailee who had no right to open it and no reason to suspect that its contents were illicit or were drugs or (b) that although he was the owner he had no knowledge of (including a genuine mistake as to) its actual contents or of their illicit nature and that he received them innocently and also that he had had no reasonable opportunity since receiving the package of acquainting himself with its actual contents. For a man takes over a package or suitcase at risk as to its contents being unlawful if he does not immediately examine it (if he is entitled to do so). As soon as may be he should examine it and if he finds the contents suspicious reject possession by either throwing them away or by taking immediate sensible steps for their disposal.
So to read the Act would, I think, accord with what Parliament intended and would give it a sense which would accord with the practical views of a jury, although I realise that a deeper investigation of the legal implications of possession might support various differing views. It would leave some unfortunate victims of circumstances who move innocently but rashly in shady surroundings and who carry packages or tablets for strangers or unreliable friends. But I think even they would have an opportunity of ventilating their story and in some cases, if innocent of any knowledge and bad motives, obtaining an acquittal. Some of the persons in some of the rather far-fetched circumstances which have been envisaged in argument would still be left in difficulties. But I do not think that Parliament intended to cater for them in its efforts to stop a serious evil.
The Act forbids possession of these drugs. Whether he possessed them with an innocent or guilty mind or for a laudable or improper purpose is immaterial since he is not allowed to possess them. If he possessed them he is guilty. If a man has physical control or possession of a thing that is sufficient possession under the Act provided that he knows that he has the thing. But you do not (within the meaning of the Act) possess things of whose existence you are unaware. The prosecution have here proved that he possessed the parcel, but have they proved that he possessed its contents also? There is a very strong inference of fact in any normal case that a man who possesses a parcel also possesses its contents, an inference on which a jury would in a normal case be justified in finding possession. A man who accepts possession of a parcel normally accepts possession of the contents.
But that inference can be disproved or shaken by evidence that, although a man was in possession of a parcel, he was completely mistaken as to its contents and would not have accepted possession had he known what kind of thing the contents were. A mistake as to the qualities of the contents, however, does not negative possession. Many people possess things of whose exact qualities they are unaware. If the accused knew that the contents were drugs or were tablets, he was in possession of them, though he was mistaken as to their qualities. Again if, though unaware of the contents, he did not open them at the first opportunity to ascertain (as he was entitled to do in his case) what they were, the proper inference is that he was accepting possession of them. (It would be otherwise if he had no right to open the parcel.) Again, if he suspected that there was anything wrong about the contents when he received the parcel, the proper inference is that he was accepting possession of the contents by not immediately verifying them. (This would, in my opinion, apply also to a bailee.)
In the present case you may think that the difference between scent and tablets is a sufficient difference in kind to entitle the accused to an acquittal if on the whole of the evidence it appears that he may have genuinely believed that the parcel contained scent, and that he may not have had any suspicions that there was anything illicit in the parcel, and that he had no opportunity of verifying its contents. For in that case it is not proved that he was in possession of the contents of the parcel.
But that (Lord Morris of Borth-y-Gest and Lord Guest dissenting), whilst, therefore, there was a very strong prima facie inference of fact that the appellant was in possession of the drugs where, as here, the prohibited drugs were contained in a parcel the prosecution had to prove not only that the accused possessed the parcel but also that he possessed its contents, for a person did not (within the meaning of the Act) possess things of whose existence he was unaware. A person who accepted possession of a parcel normally accepted possession of the contents, but that inference could be disproved or shaken by evidence that although a person was in possession of a parcel he was completely mistaken as to its contents and would not have accepted possession had he known what kind of thing the contents were. A mistake as to the quality of the contents, however, did not negative possession. If the accused knew that the contents were drugs or tablets he was in possession of them though he was mistaken as to their qualities. Again if, though unaware of the contents, he did not open them at the first opportunity to ascertain (as the appellant was entitled to do here) what they were, the proper inference was that he was accepting possession of them. (It would be otherwise if a person had no right to open the parcel.) Again, if a person suspected that there was anything wrong about the contents when he received the parcel, the proper inference was that he was accepting possession of the contents by not immediately verifying them.
The justification for the concession on behalf of the appellant, which we agree has been properly made, that the offence created by section 5 is one of strict liability, at least in the absence of a defence of ignorance, may be summarised as follows:
First, the words of the section themselves, "A person commits an offence if without … authority … he has in his possession …" any firearm, weapon or ammunition of the type defined, makes plain that this is an offence of strict liability.
Secondly, the comparable words and structure of section 1 of the 1968 Act have been held by this Court in Howells ( supra ) and Hussain ( supra ) to create an offence of strict liability.
Thirdly, the clear purpose of the firearms legislation is to impose a tight control on the use of highly dangerous weapons. To achieve effective control and to prevent the potentially disastrous consequences of their misuse, strict liability is necessary, just as it is in the equally dangerous field of drugs. See per Lord Guest in Warner , at page 421 and p. 301, ( supra ). Given that section 1 has been held to create an offence of strict liability, this consideration applies a fortiori to section 5, which is concerned with more serious weapons, such as automatic handguns and machine guns, and imposes a higher maximum penalty.
On the question whether the approach adopted by certain of their Lordships in Warner v. M.P.C. ( supra ) applies to a "container" case under section 5, and presumably section 1 too, of the 1968 Act, so as to enable an accused to raise a defence that he did not know what was in the container, we are of the view that it does not. We say that for the following reasons:
First, whilst neither Howells (1977) 65 Cr.App.R. 86, [1977] Q.B. 614 nor Hussain (1981) 72 Cr.App.R. 143, [1981] 1 W.L.R. 416, was a "container" case, the Court of Appeal in each case adopted the much stricter line of Lord Morris in Warner than the "half-way house" approach of Lords Pearce, Reid and Wilberforce. See Howells, per Browne L.J. at pp. 91, 92, and p. 626F–H; and Hussain , per Eveleigh L.J. at p. 145 and p. 418 respectively.
Secondly, as noted by Browne L.J. in Howells, there are a number of provisions creating offences in the 1968 Act where there is specific reference to the accused's state of mind as an ingredient of the offence or express provision of a defence where the accused can show that he did not have a particular state of mind. Neither section 1 nor section 5 is so drafted.
Thirdly, the scheme in the Firearms legislation of specifically providing where intended a defence based on the absence of a particular state of mind has been continued in the Firearms Act 1982 . Section 1 of that Act subjects imitation firearms to the control of the 1968 Act, but provides in subsection (5) that it is a defence for the accused to show that he did not know and had no reason to suspect that the imitation firearm was constructed or adapted so as to be readily convertible into a firearm to which section 1 of the 1968 Act applies.
Fourthly, no provision corresponding to section 28(3) of the Misuse of Drugs Act 1971 has been introduced to the Firearms legislation so as to import the Warner "half-way house" concept into offences aimed at controlling the possession or use of firearms. In particular, the recent comprehensive extension of that control in the Firearms (Amendment) Act 1988 contains no such provision in relation to offences under section 1 or 5 of the 1968 Act.
Fifthly, the possibilities and consequences of evasion would be too great for effective control, even if the burden of proving lack of guilty knowledge were to be on the accused. The difficulty of enforcement, when presented with such a defence, would be particularly difficult where there is a prosecution for possession of a component part of a firearm or prohibited weapon, as provided for by sections 1 and 5 when read with section 57(1) of the 1968 Act. It would be easy for an accused to maintain, lyingly but with conviction, that he did not recognise the object in his possession as part of a firearm or prohibited weapon. To the argument that the innocent possessor or carrier of firearms or prohibited weapons or parts of them is at risk of unfair conviction under these provisions, there has to be balanced the important public policy behind the legislation of protecting the public from the misuse of such dangerous weapons. Just as the Chicago-style gangster might plausibly maintain that he believed his violin case to contain a violin, not a sub-machine gun, so it might be difficult to meet a London lout's assertion that he did not know an unmarked plastic bottle in his possession contained ammonia rather than something to drink.
Accordingly, we are of the view that, whether or not this case is regarded as a "container" case, and even if the canister had not been clearly marked "Force 10 Super Magnum C.S.," this was an absolute offence, and it would have been no defence for the appellant to maintain that he did not know or could not reasonably have been expected to know that the canister contained C.S. gas. It follows that, in our view, the assistant recorder was correct in the ruling that he gave, so far as it went, that section 5 creates an offence of strict liability. He was not asked to consider the further question that we have just resolved against the appellant, whether, if the prosecution established possession of the prohibited weapon, it was open to the defence to raise and to prove on a balance of probabilities that he did not know that he had a prohibited weapon.
..we conclude that this matter is already governed by authority and it is authority which, if not binding upon us, as it probably is, we should, in any event, follow, regarding it as correct. We hold specifically that the line of authority should not be reopened even if reference is made to the Parliamentary debates in 1965 which have already been quoted.
In so far as the decision in Vann and Davis seeks to suggest that a defendant may have a defence if he did not know the "nature" of the object, we consider that it went too far. It was not, in any event part of the ratio decidendi of that case. It is based on the slender foundation of the obiter exposition of the effect of Warner by Lord Lane C.J. in McNamara which itself was based upon one short passage in Lord Pearce's speech. As Auld J. said in Bradish the Court's approach to "possession" under the 1968 Act, has been to take the more restrictive view of Lord Morris and Lord Guest, and has rejected the "half-way house" of which the "nature" concept clearly forms part. In any event, that concept produces real logical difficulties, as its context in Lord Pearce's speech demonstrates. Sweets seem to us to be of a different nature from heroin; but according to Lord Pearce believing that the heroin tablets were sweets would not provide a defence.