No. 93/6686/W2
BAILII Citation Number: [1995] EWCA Crim 7
IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand
London WC2A 2LL

Date: Tuesday 16th May 1995

B e f o r e:

LORD JUSTICE KENNEDY

MRS JUSTICE STEEL

and

MR JUSTICE HOOPER

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R E G I N A

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FITZROY DEREK POMMELL

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(Computer Aided Transcript of the Stenograph Notes of John Larking Verbatim Reporters, Chancery House, Chancery Lane, London WC2
Telephone: 0171 404 7464
Official Shorthand Writers to the Court)

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MR C JOHNSON appeared on behalf of the Appellant

MR M J DAWSON appeared on behalf of the Crown

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JUDGMENT

Tuesday 16th May 1995
LORD JUSTICE KENNEDY: 
1. OUTLINE. On 27th October 1993 the appellant appeared before the Crown Court at Woolwich charged on two indictments. The first indictment alleged in Count 1 that on 4th June 1993 he had, without authority, in his possession a firearm, namely a sub-machine gun, contrary to section 5 (1)(a) of the Firearms Act 1968. The second count alleged that on the same date he had possession of 55 rounds of ammunition without a firearms certificate, contrary to section 1(1)(b) of the same Act. In the second indictment there was one count. It alleged that on the same date he had possession of counterfeit currency notes. To that second indictment he pleaded guilty, and no issue now arises in relation to it. However, so far as the first indictment is concerned, the trial judge indicated at the outset of the proceedings his view that the defence which it was proposed to advance would not amount to a defence in law. Having heard submissions he so ruled, and the appellant then, on re-arraignment, entered pleas of guilty to both counts. As to those counts he now appeals against conviction by leave of the Full Court. 
2. ARREST AND TRIAL. Before we turn to the grounds of appeal, it is necessary to look first at the events as they appear from the prosecution papers, and then at what happened on 27th October 1993. So far as the first indictment was concerned, the prosecution case was that at about 8.00am on 4th June 1993 police officers entered the appellant's home to execute a search warrant. He was found lying in bed with a loaded gun in his right hand. He was asked if the gun was his and he replied, "I took it off a geezer who was going to do some people some damage with it". In the same bedroom police officers found a brown holdall containing ammunition. The appellant was arrested and interviewed. When interviewed he was asked to explain his possession of the gun, and he said:-
"Last night someone come round to see me, this guy by the name of Erroll, and he had it with him with the intention to go and shoot some people because they had killed his friend and he wanted to kill their girlfriends and relatives and kids, and I persuade him, I took it off him and told him that its not right to do that."

The appellant went on to say that Erroll had called between 12.30am and 1.00am and, after he left, the appellant took the gun upstairs and kept it from his girlfriend and took the bullets out of it. He appears to have achieved this by removing a loaded magazine containing 23 rounds. He then decided to wait until morning and decided to put the bullets back into it. To do this he must have inserted the loaded magazine back into the gun. He agreed that at the time of his arrest he was lying in bed with the gun against his leg because, he said, he did not want his girlfriend to see it. He said that he was going to hand the gun to his brother so that he could hand it to the police because his brother gets on with the police and had handed in guns in the past. For present purposes, it is unnecessary to look at the interview in any greater detail.
We turn now to the events of 27th October 1993. In the course of an ex parte application as to discovery, prosecuting counsel advised the judge that the defence was going to be that the defendant had the weapon in his possession, holding it for another, so that the defence might be described as a defence of necessity. The judge said that he could not see that giving rise to an issue which it would be proper for a jury to consider, so the matter was explored further in open court. After arraignment, prosecuting counsel drew the attention of the judge to what the defendant had said in interview, and said that he understood that to be the basis of the defence. The judge said that he did not see any defence, and would need persuasion that a jury needed to be sworn. Defence counsel appears to have accepted that the judge should proceed on the basis that the contents of the interview were true. He drew the attention of the judge to the decision of this Court in the case of R. v. Martin (1989) 88 Cr.App.R. 343. There the Court acknowledged that in extreme circumstances there can be a defence of necessity. Most commonly it arises when wrongful acts put pressure upon the accused, but it can arise from other objective dangers threatening the accused or others, then it is conveniently referred to as "duress of circumstance". Simon Brown J, as he then was, giving the judgment of the Court, said:
".....the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury."

He went on to say that:
".....assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both questions was yes, then the jury would acquit: the defence of necessity would have been established."

The highlighting is ours. 
Martin had been charged with driving whilst disqualified, and asserted that he drove when he did because his wife, who was suicidal, threatened to kill herself. Obviously the circumstances of the present case are different, and having had his attention drawn to the case of Martin, the trial judge said that in his view necessity could not be an issue here: 
".....because assuming that he was originally driven by necessity to take possession of it [the gun]...his failure to go immediately to the police robs him of a defence....."
A Newton hearing could be conducted for the purposes of sentence, but that would be all.
The judge then decided to see counsel in his room but without the presence of a shorthand writer. We are completely at a loss to understand why he considered that to be an appropriate course. As far as we can ascertain, nothing was said in chambers which could not have been said in court, and as Mustill LJ said in Harper-Taylor and Bakker, 19th February 1988, unreported, it is a first principle of criminal law that justice is done in public for all to see and hear. Exceptionally it may be appropriate for a judge to see counsel in chambers, with a shorthand writer present, as was recognised by this Court in the case of R. v. Terence Carl Smith (1990) 90 Cr.App.R. 413, but there was nothing exceptional about the present case. Fortunately counsel for the prosecution and defence have been able to prepare a joint note as to what took place in chambers. Counsel for the defence repeated what he had said in open court, and the judge reiterated his view that the failure of the defendant to go to the police immediately robbed him of the defence which he wished to put forward. The proceedings then continued in open court. At the request of defence counsel the appellant was re-arraigned and pleaded guilty. Defence counsel made it clear that the pleas were entered on the basis of the judge's ruling. He then went on to say:
"[The defendant] foresaw difficulties in approaching the police in the middle of the night for fear of self-incrimination and his reasonably held belief, as he would put it, that they would more as likely charge him than accept his word at face value and further that he had seen weapons seized at the night club where his brother was the proprietor before and was able, through that channel, to consider safely handing in the weapon with little difficulty."

Counsel explained that these were matters that the defendant intended to say in evidence in addition to what was set out in the interview. Whether the judge was told that in his room is not clear. The agreed note of what happened in the room is, understandably, not that detailed. The court then proceeded to conduct a Newton hearing. During that hearing the appellant gave evidence substantially in accordance with what he had said to the police when interviewed, and the judge gave a judgment in which he said that the defendant's account was "utterly incredible". 
3. THE ISSUE NOW. Before us there is substantially one ground of appeal. It is that the judge should not have ruled as he did and when he did in relation to the defence of necessity. For the appellant, Mr Johnston contends that the defence which he was seeking to advance should not have been so summarily dismissed. Evidence should have been called in the normal way, and then, if the evidence emerged as was anticipated, the judge should have left to the jury the issue of whether or not the defence of necessity was made out.
4. PROCEDURAL. Where an attempt is made to raise a defence which involves the defendant accepting the evidential burden of proof (e.g. necessity, duress or self-defence), then the judge will be entitled to withdraw the case from the jury if there is no evidence to support the defence upon which it is sought to rely (see R. v. Hill and Hall (1989) 89 Cr.App.R. 74). That is to be contrasted with the position in relation to any issue which is a part of the affirmative prosecution case. Judges faced with a decision whether to withdraw a defence from the jury should bear in mind the cautionary words of Lord Widgery CJ giving the judgment of the Court in R. v. Bello (1978) 67 Cr.App.R. 288, at page 290: 
"The circumstances in which a judge can properly rule against a defendant that his defence is not a defence known to the law are very, very few and far between, and it was treading on the most dangerous ground in this case to invite a ruling by the judge that the defence put forward was not available as a defence in law, without recognising that there might well be questions of fact and degree as to the precise state of the defendant's mind which might arise for consideration".

Although normally a judge will not have to consider whether or not to leave a particular defence to the jury until the conclusion of the evidence, in some rare cases, where the precise nature of the evidence to be called is clear, it may be appropriate, in order to save time and costs, for the judge to indicate at an early stage what his ruling is likely to be. That situation will normally arise as a result of an application by counsel, but it may be prompted by the judge and, accordingly, subject to what we have already said about the retirement into chambers, there can be no criticism of the judge's action in taking the initiative in this case. 
If a ruling is to be made by the judge, then it is important that there is agreement as to the facts, or hypothetical facts, upon which the ruling is to be made. In this case it may well be that some of the matters which were relevant, namely why the defendant did not go to the police immediately, came out only after the ruling was made.
5. FIREARMS ACT. That brings us to the central question of whether on the facts, as they emerged from the prosecution papers, the judge was entitled to conclude that as a matter of law the defence of necessity could not be established.
The two provisions of the Firearms Act 1968 with which we are concerned in this case, so far as they are material, read as follows:
"S.1(1) .....it is an offence for a person –
... 
(b) to have in his possession...any ammunition to which this section applies without holding a firearm certificate in force at the time,....
S.5(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession,....
(a) Any firearm which is so designed or adapted that two or more missiles can be successively discharged without repeated pressure on the trigger,...."

We accept that the provisions of the Firearms Act are intended to be strictly enforced. A graphic example of that is to be found in the decision of the Divisional Court in Woodage v Moss (1974) 1 W.L.R. 411. In that case, an unknown man called at the house of the defendant and offered to sell him a revolver. The defendant pointed out that a firearms certificate was required and the man did not have one. The defendant advised him to hand the revolver in to a police station. He refused. The defendant then telephoned a registered firearms dealer who agreed to accept the revolver as a surrendered weapon, and the defendant then, at the request of the unknown man, accepted the weapon on behalf of the dealer, to whom he handed it over about 1½ hours later. Nevertheless, the defendant was charged with possessing a firearm without a certificate. He was acquitted by the Justices, but on appeal by the prosecutor, the Divisional Court directed the Justices to find the offence proved. It is, however, worth noting that the Divisional Court was not asked to consider the defence of necessity. The primary defence was that the defendant never really acquired possession of the gun and that defence failed, as did an alternative defence that the defendant was really the servant of the dealer.
In R v Hussain (1981) 1 W.L.R. 416, this Court upheld the trial judge's direction that if a pen gun found in the defendant's home was a lethal weapon, he would be guilty of possessing it without a firearms certificate, even though he might not know that it was a firearm. In giving the judgment of the Court, Eveleigh LJ referred to the decision of the House of Lords in R v Warner (1969) 2 A.C. 256, and the decision of this Court in R v Howells(1977) Q.B. 614. In R v Bradish (1990) 1 Q.B. 981, this Court was concerned with an offence contrary to section 5 of the 1968 Act which it found to be an absolute offence. Having reviewed the authorities Auld J, as he then was, said at page 992G:
".....it would have been no defence for the defendant to maintain that he did not know or could not reasonably have been expected to know that the canister contained CS gas". 
That reasoning was adopted by this Court in R v Waller (1991) 1 W.L.R. 381, where the defendant claimed not to know what was in a plastic bag which had been left with him. He thought it might contain a crowbar. In fact, it contained a sawn-off shotgun. On appeal it was held that the judge was right to direct the jury that it was not necessary to prove that the defendant knew what was in the plastic bag. It is, however, worth noting that in each of those cases, any other decision would have imposed on the prosecution a burden of proof which it would be difficult to discharge, and would thus have weakened the impact of the clear words of the statute.
6. NECESSITY. Against that background we turn to consider the defence of necessity. There is an obvious attraction in the argument that if A finds B in possession of a gun which he is about to use to commit a crime, and if A is then able to persuade B to hand over the gun so that A may hand it to the police, A should not immediately upon taking possession of the gun become guilty of a criminal offence. However, if that is right, then in 1974, at least in the result, the case of Woodage v Moss was wrongly decided.
The strength of the argument that a person ought to be permitted to breach the letter of the criminal law in order to prevent a greater evil befalling himself or others has long been recognised (see, for example, Stephen's Digest of Criminal Law), but it has, in English Law, not given rise to a recognised general defence of necessity, and in relation to the charge of murder, the defence has been specifically held not to exist (see R. v. Dudley and Stephens (1884) 14 Q.B.D. 273). Even in relation to other offences, there are powerful arguments against recognising the general defence. As Dickson J said in the Supreme Court of Canada in Perka et al. v. R. (1985) 13 D.L.R. (4th) 1, at page 14:
"'.....no system of positive law can recognise any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value'. The Criminal Code has specified a number of identifiable situations in which an actor is justified in committing what would otherwise be a criminal offence. To go beyond that and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. It would invite the courts to second-guess the Legislature and to assess the relative merits of social policies underlying criminal prohibitions."

However, that does not really deal with the situation where someone commendably infringes a regulation in order to prevent another person from committing what everyone would accept as being a greater evil with a gun. In that situation it cannot be satisfactory to leave it to the prosecuting authority not to prosecute, or to individual courts to grant an absolute discharge. The authority may, as in the present case, prosecute because it is not satisfied that the defendant is telling the truth, and then, even if he is vindicated and given an absolute discharge, he is left with a criminal conviction which, for some purposes, would be recognised as such.
It was, as it seems to us, to meet this difficulty that the limited defence of duress of circumstances has been developed in English Law in relation to Road Traffic offences. It was first recognised in R. v. Willer (1986) 83 Cr.App.R. 225, where the accused drove onto a pavement and in and out of a shopping centre in order to escape a gang of youths seeking to attack him and his passenger. Willer was followed and applied in R. v. Conway (1989) 88 Cr.App.R. 159, in which the Court of Appeal quashed a conviction on a charge of reckless driving. Having considered existing authorities, text books and the proposals of the Law Commission, the Court in that case said at page 164:
".....it is still not clear whether there is a general defence of necessity or, if there is, what are the circumstances in which it is available." 
In our judgment, that is still the position, but the Court in Conway went on to say that necessity can be a defence to a charge of reckless driving where the facts establish duress of circumstances, that is to say when the defendant is constrained to drive as he did to avoid death or serious bodily harm to himself or some other person. 
Then came Martin, a decision to which we referred earlier in this judgment, and D.P.P. v Bell (1992) R.T.R. 335, where the defendant, whose alcohol level was over the prescribed limit, was pursued to his car and, fearing serious injury, drove some distance down the road. The Crown Court allowed his appeal on the basis of duress of circumstances, and an appeal by way of case stated was dismissed. The Divisional Court particularly noted the finding of fact that the appellant drove only some distance down the road and not, for example, all the way home, so that the defence of duress of circumstances continued to avail him. In D.P.P. v Jones (1990) R.T.R. 33, it was held that any defence of necessity available to a driver would cease to be available if he drove for a longer period than necessary. Commenting on the case of Bell, Professor Sir John Smith has written:
"All the cases so far have concerned road traffic offences but there are no grounds for supposing that the defence is limited to that kind of case. On the contrary, the defence, being closely related to the defence of duress by threats, appears to be general, applying to all crimes except murder, attempted murder and some forms of treason,....": see (1992) C.L.R. 176. 
We agree.
7. CONCLUSION. That leads us to the conclusion that in the present case the defence was open to the appellant in respect of his acquisition of the gun. The jury would have to be directed to determine the two questions identified in the passage which we have cited from the judgment in Martin. That leaves the question as to his continued possession of the gun thereafter. In our judgment, the test laid down in Martin is not necessarily the appropriate test for determining whether a person continues to have a defence available to him. For example, a person takes a gun off another in the circumstances in which this appellant says he did and then locks it away in a safe with a view to safeguarding it while the police are informed. When the gun is in the safe, the test laid down in Martin may not be satisfied: there would then be no immediate fear of death or serious injury. In our judgment, a person who has taken possession of a gun in circumstances where he has the defence of duress by circumstances must "desist from committing the crime as soon as he reasonably can" (Smith and Hogan, Criminal Law, 7th Ed., page 239). This test is similar to the test in Jones, to which we have already referred. In deciding whether a defendant acted reasonably, regard would be had to the circumstances in which he finds himself. Can it be said, in this case, that there was no evidence upon which a jury could have reached the conclusion that the appellant did desist, or may have desisted, as soon as he reasonably could? In answering this question, the jury would have to have regard to the delay that had occurred between, on the appellant's account, his acquisition of the gun and ammunition at 12.30 to 1.30am, and the arrival of the police some hours later. The appellant has offered an explanation for that delay but, as it seems to us, the defence of duress of circumstances could not avail him once a reasonable person in his position would have known that the duress, in this case the need to obtain and retain the firearm, had ceased. In the present case the judge said that the failure of the appellant to go immediately to the police "robs him of a defence". We accept that in some cases a delay, especially if unexplained, may be such as to make it clear that any duress must have ceased to operate, in which case the judge would be entitled to conclude that even on the defendant's own account of the facts, the defence was not open to him. There would then be no reason to leave the issue to the jury. However, the situation does not seem to us to have been sufficiently clear cut to make that an appropriate step in the present case. In the first place, the delay of a few hours overnight might not be regarded as being unduly long and, secondly, the defendant did offer an explanation for it, therefore, in our judgment, the proposed defence should have been left to the jury.
We have considered whether the reloading of the gun and the fact that the appellant had the gun in his bed deprive him of the defence. Must a person who has acquired a gun in circumstances in which he has the defence of duress of circumstances not only desist from committing the offence as soon as he reasonably can but, in the meanwhile, act in a reasonable manner with the gun? The answer is that if he does not do so, it will be difficult for the court to accept that he desisted from committing the offence as soon as he reasonably could. Therefore, in our judgment, the acts of reloading and putting the gun in the bed do not of themselves deprive him of the defence, but are matters which may be taken into account by the jury in deciding the issues to which we have already made reference. 
That leaves only the question of what should be done now. The judge having, in our judgment, taken a critical decision which should have been left to the jury, we see no room for the application of the proviso, and we therefore order that the convictions on the first indictment be set aside, and that a new trial be ordered at Inner London Crown Court. We direct that a fresh indictment be preferred, on which the defendant must be arraigned within two months. Subject to any submissions to be made by counsel, we propose to order that the appellant remains in custody pending retrial, and that there be legal aid for solicitor and one counsel to represent the appellant at the retrial.
MR JOHNSON: My Lord, I imagine that your Lord would only add what your Lordship has added in respect of remand in custody if your Lord was not considering granting bail at this stage.
LORD JUSTICE KENNEDY: We would need a lot of persuading to grant him bail.
MR JOHNSON: My Lord, I make the brief application. He is a man who has been in custody for two years in June of this year. By virtue of his incarceration, his common law wife has not allowed his children to see him. There has been no previous history of absconding, and he is pretty much halfway through any sentence that the court would have granted in any event. Those are matters that I would pray in aid. His convictions before the Court are in the past, and I do not say anymore than that. 
LORD JUSTICE KENNEDY: Mr Dawson, we need not trouble you. We are not prepared to grant bail.

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