Regina v. Bentham (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

For possession of an imitation firearm under section 17(2) of the Firearms Act 1968, the accused must possess a thing which is separate and distinct from his own body. A hand or finger remains part of the person and cannot itself be possessed.

Creating the impression of a firearm by pushing a concealed hand against clothing does not satisfy the offence. The victim’s belief that the accused has a firearm is irrelevant to the statutory requirement of possession. Mere pretence may aggravate the associated robbery, but purposive construction cannot extend a criminal provision to conduct which Parliament has not made an offence.

The appellant broke into his former employer’s home and committed robbery while holding his hand inside his zipped jacket so that it appeared that he had a gun. He pleaded guilty to robbery and attempting to pervert the course of justice.

Following a ruling by the Crown Court at Preston, he also pleaded guilty to possessing an imitation firearm during a robbery, contrary to section 17(2) of the Firearms Act 1968. The Court of Appeal dismissed his appeal: [2003] EWCA Crim 3751, [2004] 2 All ER 549, [2004] 1 Cr App R 487.

The issue before the House was whether a person possesses an imitation firearm when his concealed hand forces out his clothing and creates the impression that he has a gun.

1. Appeal allowed unanimously and conviction on count 2 quashed. Lord Bingham of Cornhill delivered the leading opinion. Lord Rodger of Earlsferry gave concurring reasons. Lord Steyn, Lord Phillips of Worth Matravers and Lord Carswell agreed with both opinions.

2. Per Lord Bingham, possession under section 17(2) of the Firearms Act 1968 requires something separate and distinct from the accused. An unsevered hand or finger is part of the person and cannot be possessed by that person. It is also not a “thing” within the definition of an imitation firearm in section 57(4). Lord Rodger agreed that the Crown’s case depended on the untenable proposition that the appellant possessed his own fingers.

3. Per Lord Bingham, the concealed hand and the resulting distortion of the jacket did not constitute an imitation firearm. R v Morris (1984) 79 Cr App R 104 did not assist the Crown because that defendant had a separate object: two metal pipes bound together so as to resemble a shotgun.

4. Per Lord Bingham, the lower courts wrongly attached importance to the impression made upon the victim. The victim’s belief may explain fear and compliance, but it does not establish that the accused possessed a thing. Parliament had criminalised possession and specified uses of imitation firearms. It had not created an offence of merely pretending to have a firearm.

5. Per Lord Bingham, the meaning of the statutory language was plain. Rules of construction assist where meaning is doubtful, but purposive construction cannot create a criminal offence which Parliament has not enacted. The reprehensible pretence could instead be taken fully into account when sentencing for robbery.

1. House of Lords: Allowed the appeal unanimously and quashed the conviction for possessing an imitation firearm during a robbery: [2005] UKHL 18.
2. Court of Appeal (Criminal Division): Dismissed the appeal against conviction and upheld the Crown Court’s construction of the statutory offence: [2003] EWCA Crim 3751, [2004] 2 All ER 549, [2004] 1 Cr App R 487.
3. Crown Court at Preston: Ruled that jacket material stiffened by the appellant’s concealed fingers could amount to an imitation firearm. The appellant then pleaded guilty to count 2 and received a concurrent term of 18 months’ imprisonment.