Spence, R. v

For an offence under section 16 of the Firearms Act 1968, the requisite intent need not be immediate or unconditional. A jury may infer intent to use a firearm, or enable another to use it, to endanger life if and when an occasion arises from evidence that the weapon was loaded, capable of firing live ammunition, concealed and carried in circumstances consistent with readiness for use.

An amendment to an indictment will not invalidate a conviction where it causes no unfairness to the defence. Hearsay founded on a witness’s alleged fear requires evidence that the statutory condition is met. A court may reject hearsay in the interests of justice where its relevance is speculative, its reliability is weak, and it would generate a collateral issue.

The appellant was convicted at the Inner London Crown Court of possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968, and sentenced to six and a half years’ imprisonment.

During a police pursuit, an object was thrown from the front passenger window of a vehicle in which the appellant was seated. It was recovered as a loaded firearm. The appellant denied possessing it and contended that the driver had thrown it away.

On appeal, he challenged the amendment of the indictment to include the alternative statutory limb, the rejection of his submission of no case to answer, and the refusal to admit evidence of a rear-seat passenger’s firearms conviction and associated hearsay statement.

1. Appeal dismissed. The amendment of the indictment, adding the alternative allegation that the appellant intended to enable another person to endanger life by means of the firearm, caused no unfairness. His defence was throughout that he had never possessed or discarded the firearm. That defence would have been unchanged had the count been drafted in its amended form from the outset.

2. The court rejected the submission that there was no case to answer. Under section 16 of the Firearms Act 1968, the necessary intention need not be immediate and unconditional. Applying Bentham [1972] 3 AER 271, a firearm possessed ready for use if and when an occasion arises may satisfy either limb of the offence.

   There was evidence from which a reasonable jury could infer that intention: the gun was loaded with live rounds, the weapon and ammunition had been modified to fire live ammunition, the gun was concealed in a bag, and it was carried at night near a public house. The jury could therefore infer an intent to use it to endanger life, or to allow another to do so.

3. The court refused leave to advance the hearsay and bad-character ground. There was no evidence before the trial judge that Merrick was fearful of giving evidence, as required by section 116(2)(e) of the Criminal Justice Act 2003, and no other statutory condition was said to apply.

   The proposed hearsay was also properly excluded in the interests of justice. Merrick’s earlier self-exculpatory statement blaming a deported person was speculative and unreliable as a basis for deciding who discarded the firearm. Its admission would have required the jury to determine an unnecessary and complicated collateral issue. The conviction evidence had no utility without that hearsay.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 2736, dismissed the appeal against conviction and refused leave to advance the third ground.

• Inner London Crown Court: On 17 November 2008, convicted the appellant of the section 16 offence and imposed a sentence of six and a half years’ imprisonment.