Deyemi & Anor, R v

An offence under section 5 of the Firearms Act 1968 is one of absolute liability as to the prohibited character of the weapon. The prosecution must prove possession of the object and that it was a prohibited weapon. It need not prove that the defendant knew, suspected, or could reasonably have discovered that character.

There is no general defence of innocent possession where the defendant knew that he possessed the object but mistook its nature. Articles 6 and 7 of the European Convention on Human Rights do not alter that conclusion. Article 6 does not prescribe the substantive content of criminal offences, although it may affect evidential presumptions and statutory defences.

The respondents pleaded guilty to possessing a prohibited weapon contrary to section 5(1)(b) of the Firearms Act 1968. They had been found with an electrical stun-gun fitted with a lens and bulb. They said that they believed it was a torch.

At a Newton hearing, the judge accepted that they did not know that the object was a stun-gun. She nevertheless ruled that the offence was one of strict liability and imposed conditional discharges. The prosecution appealed against the respondents' challenge to that ruling.

The central issues were whether ignorance of the weapon's nature could prevent possession for section 5 purposes, and whether an absolute-liability construction was incompatible with Articles 6 or 7 of the European Convention on Human Rights.

1. Appeal dismissed. Section 5 of the Firearms Act 1968 creates an absolute offence in the relevant sense. To prove the offence, the prosecution need prove only possession of the object and that it was a firearm or other weapon prohibited by the Act. It need not prove that the defendant knew, or could have known, that the object had that prohibited character.
2. The established construction in Bradish (1990) 90 Cr App R 271 was binding. The stringent control of dangerous weapons, the absence of an express ignorance defence in sections 1 and 5, and the statutory pattern of expressly providing mental-state defences where intended supported that construction.
3. The court rejected the suggested “half-way house” derived from some observations on possession in Warner v Metropolitan Police Commissioner [1969] 2 AC 256. A person does not escape liability merely because, while knowingly possessing an object, he believed it to be an object of a wholly different nature. Vann & Davis [1996] Crim LR 52, insofar as it suggested otherwise, went too far. That suggestion was not part of its ratio decidendi.
4. Articles 6.1 and 6.2 of the European Convention on Human Rights did not make an absolute offence unlawful. They may control evidential presumptions and the burden imposed by statutory defences, but do not dictate the substantive ingredients Parliament may prescribe for an offence. Article 7 added nothing in this context.
5. The trial judge's ruling was correct. The court dismissed the appeal, certified the proposed question of law, and refused leave to appeal to the House of Lords.

• Court of Appeal (Criminal Division) — In [2007] EWCA Crim 2060, dismissed the appeal and upheld the ruling that section 5 created an absolute offence as to the weapon's prohibited character.
• Trial court — The respondents pleaded guilty after the judge ruled, following a Newton hearing, that section 5(1)(b) of the Firearms Act 1968 was an offence of strict liability. The court and citation are not stated in the judgment.