Regina v Bentham

The House of Lords allowed the appeal and quashed the defendant's conviction under section 17(2) of the Firearms Act 1968 for possessing an imitation firearm during the course of a robbery. The court held that possession under the statute requires a separate "thing" which has the appearance of a firearm and that a person cannot be said to possess his own unsevered limbs. Section 17(2) and the statutory definitions in section 57 were construed literally: an imitation firearm must be an object distinct from the person. The court rejected a purposive construction that would create an offence of falsely pretending to have a firearm where Parliament had not done so.

The appellant admitted that during a burglary/robbery he placed his hand and fingers inside his zipped jacket so as to create a bulge which gave the victim the impression he had a gun, and he threatened to shoot unless money and jewellery were handed over. He pleaded guilty to robbery and to an offence of perverting the course of justice; he also pleaded guilty to a count alleging possession of an imitation firearm during a robbery, on the basis of a ruling by the trial judge that the puckered jacket caused by the appellant's hand could amount to an imitation firearm for purposes of section 17(2) of the Firearms Act 1968.

The appellant appealed the conviction on count 2. The Court of Appeal had upheld the trial judge's ruling, adopting the view that anything which, to the eye of a terrified person, had the appearance of a firearm could satisfy the statutory definition of "imitation firearm". The House of Lords took the appeal from that decision.

Nature of the application: appeal against conviction under section 17(2) of the Firearms Act 1968; relief sought was quashing the conviction on count 2.

Issues framed: whether an unsevered hand or fingers, producing a bulge in clothing to give the impression of a firearm, can be "in possession" as an "imitation firearm" under section 17(2) read with the definition of "imitation firearm" in section 57(4); and whether a purposive construction could properly treat such conduct as possession of an imitation firearm.

Reasoning: the court held that possession requires an external, separate object; a person cannot be treated as possessing his own limbs as if they were a "thing" or object. The statutory language and definitions were plain and did not support extending the concept of possession to include parts of the defendant's body. Purposive construction could not be used to create an offence of falsely pretending to have a firearm where Parliament had not enacted such an offence. The lower courts were therefore wrong to uphold the conviction, and the conviction under section 17(2) was quashed. The Lords noted that the reprehensible nature of the appellant's conduct could be and was taken into account in sentencing for the robbery offence.

Appeal allowed. The House of Lords held that the conviction under section 17(2) of the Firearms Act 1968 could not stand because a person cannot 'possess' his own unsevered limbs as an "imitation firearm"; possession under the statute requires a separate thing which has the appearance of a firearm, and purposive construction cannot criminalise conduct Parliament did not make an offence.

Crown Court at Preston (Her Honour Judge Badley) — trial ruling that a bulge caused by the defendant's hand could amount to an imitation firearm; Court of Appeal (Criminal Division) [2003] EWCA Crim 3751, [2004] 2 All ER 549, [2004] 1 Cr App R 487 — appeal dismissed; House of Lords [2005] UKHL 18 — appeal allowed and conviction quashed on count 2.