Williams v R.

Section 1(5) of the Firearms Act 1982 imposes a legal, rather than merely evidential, burden on an accused to establish on the balance of probabilities that he neither knew nor had reason to suspect that an imitation firearm was readily convertible.

That reverse burden engages the presumption of innocence in Article 6(2), but is a justified and proportionate qualification. Readily convertible imitation firearms present the same serious public danger as firearms subject to strict liability controls. The relevant facts are particularly available to the possessor, whereas requiring the prosecution to disprove lack of knowledge or suspicion would seriously impede enforcement.

Orette Williams was convicted at the Inner London Crown Court of possessing a prohibited weapon contrary to section 5(1)(a) of the Firearms Act 1968. The weapon was a blank-firing imitation gun which the prosecution proved was readily convertible into a firearm.

The trial judge directed the jury that, under section 1(5) of the Firearms Act 1982, Williams bore the legal burden of proving that he did not know and had no reason to suspect that it was readily convertible. He was sentenced to five years’ imprisonment.

Williams appealed against conviction and renewed applications concerning other conviction grounds and sentence. The central issue was whether section 1(5) created a legal or evidential burden, and whether a legal burden was compatible with Article 6(2).

1. Appeal and applications dismissed. Section 1(5) of the Firearms Act 1982 imposed a legal, persuasive burden on the appellant. The trial judge’s direction that the appellant had to establish the statutory defence on the balance of probabilities was correct.
2. As a matter of ordinary statutory construction, the words making it a defence for the accused to show lack of knowledge or suspicion created a reverse legal burden. The expressly evidential burdens in later firearms legislation did not alter that construction. Analogous provisions in the Firearms Act 1968 also contemplated legal burdens on an accused.
3. The burden made an inroad into the presumption of innocence under Article 6(2). The court applied the contextual proportionality approach derived from Lambert [2011] UKHL 37, Johnstone [2003] UKHL 28, and Sheldrake v Director of Public Prosecutions [2004] UKHL 43. A reverse burden is not automatically incompatible with Article 6, but requires a balance between the statutory objective and the defendant’s rights.
4. That balance justified the legal burden here. Readily convertible imitation firearms can become lethal weapons and form part of a statutory scheme imposing strict liability for dangerous firearms. The circumstances in which the accused obtained and possessed the item, and his knowledge or reasons for suspicion, were particularly within his knowledge. Requiring the Crown to disprove those matters would seriously deter effective prosecution. Once the Crown had proved possession of an imitation firearm that was in fact readily convertible, requiring the possessor to establish the statutory defence was neither unfair nor unreasonable.
5. There was therefore no occasion to read down section 1(5) under section 3 of the Human Rights Act 1998. The direction under section 34 of the Criminal Justice and Public Order Act 1994 was also justified: after caution and with legal representation, the appellant had declined to answer questions directly concerning acquisition, conversion and firearms dealings. The conviction was safe. The sentencing judge’s findings and conclusion that there were no exceptional circumstances were properly open to him, so there was no arguable challenge to the five-year sentence.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and the renewed applications concerning conviction and sentence: [2012] EWCA Crim 2162.
• Inner London Crown Court — convicted Williams of possession of a prohibited weapon and imposed five years’ imprisonment.