Case, R. v

Possession of a firearm is ultimately a question of fact. It requires knowing custody or control, which may be shared. The ability to require removal of an item or to contact the police does not alone establish actual control. However, a tenant with exclusive occupation who knows of a firearm and permits it to remain may be in possession of it.

Inconclusive agreed DNA evidence may still be relevant evidence. A judge may direct the jury to assess it with the evidence as a whole, provided the direction does not invite speculation or misstate its limits.

The appellant was convicted by a jury at Harrow Crown Court of possessing a prohibited firearm and possessing ammunition without a certificate. A loaded handgun was found in a sock among his clothing at a flat of which he was tenant and keyholder.

He said that another man had stored the gun there without his consent, although he knew it was present and had unsuccessfully asked the man to remove it. Agreed admissions recorded that his DNA could have reached the firearm or ammunition through direct or secondary transfer, and could not establish how or when it was deposited.

With leave of the single judge, he appealed on the grounds that the summing-up misstated control and that the judge's response to the jury's DNA question invited speculation.

1. Appeal dismissed. Despite some lack of clarity in the summing-up, the convictions were safe.
2. Whether a person possesses a firearm is a factual question. Knowledge and control or custody may establish possession, and control may be shared. The ability to demand that an item be removed, or to contact the police, is not automatically equivalent to actual control. The question remains whether the circumstances establish control.
3. On the appellant's own account, he was the tenant and keyholder with exclusive occupation of the flat. He knew that a gun was there, had asked its owner to remove it, and allowed it to remain for weeks. Those facts were capable of establishing that the firearm was in his custody or actual control. The jury had also ample evidence of knowledge.
4. The agreed DNA admissions were properly before the jury. They accurately conveyed that the DNA evidence was inconclusive and compatible with direct or secondary transfer. The judge's instruction that the jury's understanding of the admissions mattered, read with the earlier directions and invitation to reread them, required assessment of the evidence and did not invite speculation.
5. Obiter: the observation in Kousar [2009] EWCA Crim 139 that permission is insufficient for possession is not a universally applicable rule. A householder who knowingly permits another to store a firearm may, depending on the circumstances, be a shared possessor.

• Court of Appeal (Criminal Division) — dismissed the appeal and held the convictions safe: [2015] EWCA Crim 2080.
• Harrow Crown Court — on 18 March 2015, a jury convicted the appellant of possessing a prohibited firearm and possessing ammunition without a certificate.