Boateng, R v

Under section 51A of the Firearms Act 1968, genuine ignorance that a bag or container holds a prohibited firearm or ammunition can amount to exceptional circumstances. That conclusion depends on a rigorous factual finding. A court should subject a claimed lack of knowledge to the closest scrutiny.

Strong personal mitigation alone will rarely displace the statutory minimum. Otherwise, offenders could exploit sympathetic and apparently innocent people as safe custodians for dangerous weapons. However, where the offender genuinely did not know that the container held firearms or ammunition, deterrence has no direct effect on that offender and the statutory minimum may produce a disproportionate result.

The appellant pleaded guilty at Kingston upon Thames Crown Court to possessing a prohibited firearm, possessing expanding ammunition, and possessing ammunition without a firearm certificate. A firearm and ammunition were found in a bag at her flat.

Following a Newton hearing, the Recorder found that she knew the bag was connected with something improper but did not know it contained firearms or ammunition. He nevertheless imposed the five-year statutory minimum on the first two counts, and the same sentence on the third count.

The appellant appealed against sentence. The central issue was whether genuine unawareness that a bag contained a prohibited firearm or ammunition could itself constitute exceptional circumstances permitting a sentence below the statutory minimum.

1. Appeal allowed. The court quashed the concurrent five-year detention sentences and substituted concurrent sentences of two years' detention on each count.

2. Section 51A of the Firearms Act 1968 ordinarily requires a deterrent minimum sentence for possession of prohibited firearms or ammunition. The court applied the reasoning in Rehman [2006] 1 Cr App R(S) 77: a section 5 offence is absolute, so it may be committed by a person who does not realise that they are doing anything wrong. In that situation a deterrent sentence has no direct deterrent effect on that person. Genuine lack of awareness is therefore of great significance when deciding whether exceptional circumstances exist.

3. The finding of genuine ignorance must be firmly established. A court should scrutinise a claim that a defendant did not know the contents of a bag or container with the closest care. Personal mitigation alone will generally be insufficient, since criminals might otherwise select apparently sympathetic people as safe holders for firearms. That concern did not govern this case because the appellant's lack of knowledge had been found after a full Newton hearing.

4. The appellant acted recklessly in accepting and retaining a bag which she suspected was connected with crime. Her criminality did not, however, extend to knowing possession of firearms or ammunition. Those circumstances were exceptional and entitled the sentencing judge to depart from the five-year minimum. The substituted two-year sentence properly reflected her true criminality and gave full credit for her guilty pleas.

• Court of Appeal (Criminal Division) — allowed the appeal against sentence and substituted concurrent two-year detention terms: [2011] EWCA Crim 861.
• Crown Court at Kingston upon Thames — following guilty pleas, imposed five years' detention on each count on 28 July 2010.