Jenkins v Director of Public Prosecutions & Anor

Possession of a prohibited weapon is a question of fact. It is not limited to physical custody and may be proprietary or custodial. The prosecution must prove that the defendant knowingly controlled the weapon in circumstances amounting to assent to that control. Mere knowledge of its presence is insufficient.

Where a person knowingly permits a weapon to remain in a vehicle which he chooses to drive, that may constitute possession, even if the weapon belongs to another, the period is brief, and the person initially objected to its presence. An appellate court should not interfere with a magistrates’ factual finding where there is evidence capable of supporting it and no proper basis for concluding that the finding was unreasonable.

The appellant was convicted by Portsmouth Magistrates’ Court of possessing a stun gun contrary to section 5(1)(b) of the Firearms Act 1968. The weapon was found in the glove compartment of the car he was driving. It was agreed that he knew it was in the car and that he owned and drove the vehicle.

He appealed by way of case stated, arguing that the magistrates had misapplied the law and that the evidence showed no more than bare custody. The central question was whether the magistrates had erred in finding that he was in possession of the stun gun when the vehicle was stopped.

1. Appeal dismissed. The magistrates were entitled to find that the appellant possessed the stun gun.
2. Section 5(1)(b) of the Firearms Act 1968 creates a strict liability offence. Mens rea is required only so far as necessary to establish possession. The statutory prohibition reflects the social purpose of controlling dangerous weapons.
3. Possession is a question of fact and may be proprietary or custodial. It is not confined to physical possession. The prosecution must establish words or actions revealing power or control which fairly amount to possession, together with knowing control in circumstances showing assent to that control.
4. Mere knowledge of the weapon’s presence would not suffice. On the facts found, however, the appellant knew the stun gun was in his car, allowed it to remain there, and then drove the car for about ten minutes. That amounted to at least a degree of control. His initial objection did not prevent possession because he voluntarily continued with the weapon in the vehicle.
5. The short duration of the possession did not provide a defence. The circumstances amounted to more than bare custody and were materially different from the fleeting encounter considered in R v Taylor [2011] EWCA Crim 1646.
6. The magistrates’ finding was supported by the evidence. There was no proper basis for appellate interference with it.

1. Portsmouth Magistrates’ Court: convicted the appellant on 1 July 2019 of possessing a prohibited weapon.
2. High Court (Administrative Court): on appeal by way of case stated, dismissed the appeal and answered the stated question in the negative.