Michael Earp v R

For possession of a firearm with intent to endanger life, the required intention may be conditional. It is sufficient that the firearm is intended to be used in a way that would endanger life if the occasion arose; an immediate or unconditional intention is unnecessary.

At the no-case stage, intent may be inferred from the nature of the weapon, its loaded condition, surrounding conduct and linking evidence. An acquittal on one count does not make a conviction on another unsafe where the evidence materially differs. A summing-up need not give examples of insufficient states of mind or review documentary evidence already fully explored at trial.

Sentencing guideline ranges for very large drug quantities are not mathematical. A sentence may be calibrated by reference to a co-defendant’s sentence, provided differences in role and totality are addressed.

Michael Earp was convicted at Birmingham Crown Court of conspiracy to supply class A drugs and firearms offences, including possession of a Skorpion sub-machine gun with intent to endanger life. He was acquitted on a separate firearms count and later received a total sentence of 26 years.

After a single judge refused leave, he sought an extension of time and renewed applications for leave to appeal against conviction and sentence. The conviction grounds concerned no case to answer, inconsistency between the conviction and acquittal, and the adequacy of the summing-up. The sentence grounds challenged the sentencing methodology, mitigation and alleged excessiveness. The central issues were whether the evidence supported the required intent and whether the convictions and sentence were unsafe.

1. Disposition. The court dismissed the renewed applications for leave to appeal against conviction and sentence. The application for an extension of time therefore required no separate determination.
2. Conviction. The second limb of possession of a firearm with intent to endanger life is satisfied where the defendant intends to enable another person to use the firearm in that way. In R v Jones (IF) [1997] 1 Cr App R 46, enable was treated as requiring more than merely giving an opportunity. The intention may be that the firearm will be used so as to endanger life if and when the occasion arises. An immediate and unconditional intention is unnecessary, as explained in R v Bentham [1972] 3 WLR 398; [1973] QB 357.
3. The evidence was capable of supporting the necessary inference. The Skorpion was inherently more dangerous than the handguns, was stored loaded with ammunition, and DNA evidence linked the appellant to the ammunition. His conduct in collecting and returning the weapon also supported the prosecution case. His absence from some messages weakened the case but did not prevent it being left to the jury. The evidence on that count materially differed from the evidence on the count resulting in acquittal.
4. The legal directions correctly identified the elements of the offence. It was permissible, but not obligatory, for the judge to give examples of states of mind which would be insufficient. Nor was the conviction unsafe because the judge did not review agreed messages which had been extensively explored during the trial and in counsel’s speeches.
5. Sentence. The guideline for the most serious commercial drug operations permitted sentences of 20 years and above where the quantity substantially exceeded the category 1 indicative quantity. Such upper levels were not mathematical, as confirmed by R v Johnson [2022] EWCA Crim 1575; [2023] 1 Cr. App. R. (S.) 49. The sentencing judge’s remarks, read together, made the starting points and role assessment clear. He was entitled to distinguish the appellant’s significant role from the co-defendant’s leading role, while using the latter sentence as a reference point. The absence of express adjustments for character and remorse did not make the sentence unsafe where the judge had accepted the role assessment and imposed a clearly differentiated sentence. A total sentence of 26 years was not arguably manifestly excessive.

• Court of Appeal (Criminal Division): On 9 May 2025, the renewed applications for leave to appeal against conviction and sentence were dismissed. The extension-of-time application was not separately addressed because the proposed appeals had no merit. [2025] EWCA Crim 546
• Birmingham Crown Court: The appellant was convicted on 2 June 2003 of drug-conspiracy and firearms offences and was sentenced to a total of 26 years.