Smith, R. v

For an offence under section 16 of the Firearms Act 1968, the jury must be sure that the defendant possessed a firearm with intent that life be endangered. They need not unanimously decide whether the defendant intended personally to endanger life or intended to enable another to do so. Those alternatives are different mechanisms for committing one offence, not materially different intents or separate offences. A Brown direction is required only where alternative matters create a relevant material difference in the issues and the basis for conviction.

The appellant was convicted at Inner London Crown Court of possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968. A loaded revolver and compatible ammunition were found in his flat. The prosecution alleged alternatively that he intended to endanger life himself, or intended to enable another person to do so.

The trial judge rejected a submission of no case to answer and directed the jury that they need not agree on which intent applied, provided each was sure of possession and of one of the two intents. The appellant challenged both rulings. The central issue was whether the alternatives in section 16 required a Brown unanimity direction.

1. The appeal against conviction was dismissed. The renewed challenge to the rejection of the submission of no case to answer also failed. The loaded revolver, spent and empty chambers, and compatible live ammunition found in the appellant’s kitchen provided ample evidence on which the case could be left to the jury.
2. Section 16 of the Firearms Act 1968 creates one offence: possession of a firearm with intent that life be endangered. Its two alternatives describe whether the possessor intends personally to endanger life or intends to enable another person to do so. The identity of the intended actor concerns the mechanism by which life would be endangered. It is not a relevantly different intent or a separate offence requiring separate counts.
3. R v Brown (1984) 79 Cr App R 115 was distinguishable. In that case, the particular false statement was an essential ingredient of the offence and the jury had to agree on the statement relied on. A Brown direction may be required where clear alternatives create a material difference in the issues and in the basis on which a jury may convict.
4. The approach in R v Giannetto [1997] Cr App R 1 and R v Tirnaveanu [2007] 2 Cr App R 23 supported the conclusion. Where the jury are sure that the defendant, with the necessary mens rea, brought about the criminal result by one of the alternatives, unanimity on the precise means is unnecessary unless the alternatives have a relevant material difference.
5. The judge’s direction correctly required every juror to be sure of possession and of intent that life be endangered in one of the statutory ways. No Brown direction was necessary or appropriate. The conviction was safe. The contingent renewed application concerning sentence was refused.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction and rejected the renewed challenge to the refusal of a submission of no case to answer. The renewed application concerning sentence was also refused.
• Inner London Crown Court: The appellant was convicted by a jury on 2 August 2013 of possessing a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968, and received eight and a half years’ imprisonment for that count within a total sentence of nine years.