ISSUE 5 2008 - Sweet & Maxwell

386 Case & Comment [2008]
Firearms
Possessing a firearm with intent to endanger life—whether conditional intent to use in
lawful self-defence was a defence—where person in possession not in immediate danger of
attack—where possessed with intent to pursue some lawful purpose other than self-defence,
but conditional intent to use in self-defence
Intention; Possession of firearms with intent; Self-defence
R. v Salih (Guner)
Court of Appeal (Criminal Division): Hooper L.J., Pitchford and Dobbs JJ.:
November 21, 2007; [2007] EWCA Crim 2750.
S was convicted of possession of a pistol and ammunition with intent to endanger
life, contrary to the Firearms Act 1968 s.16. The gun was found in his pocket
at a police station. The Crown case was that he was involved in dealing in guns
and carried the pistol for protection. The defence case was that he had effectively
inherited the weapon when he took over the running of a shop from a relative and
that his only intent was to hand it in under a gun amnesty.
On appeal, it was argued that the judge should have directed the jury that they
should acquit if they concluded that the only reason why S had been in possession
of the pistol may have been that he intended to use it if necessary for lawful
self-defence, on the basis of Georgiades (1989) 89 Cr. App. R. 206. In support
of this submission, counsel argued that, given that it was said in Bentham (1972)
56 Cr. App. R. 618 that it was not necessary to show an intention immediately
to endanger life; and that the section did not require an unconditional intention,
then if the primary submission was not correct, a person lawfully in possession of
a shotgun who accepted that he might use it should armed raiders attack his house
would be guilty of the offence.
Held, dismissingtheappeal,(1)Georgiades made it plain that it would only be
in rare cases that self-defence would provide a defence to a charge under s.16.
In Stubbs and Thomas [2007] EWCA Crim 1714 (a refused renewed application
for leave to appeal) the court stated that the trial judge had been right to hold
that the defence was available only if the risk of serious harm was imminent. The
effectiveness of legislation designed to prevent the carrying of firearms (or offensive
weapons) would be seriously impaired if anyone who reasonably feared that he or
she might at some time be unlawfully attacked was allowed to carry a weapon.
If at the moment at which the defendant was alleged to be in possession of a
firearm, he or she anticipated an imminent attack and was carrying the weapon
for defence against a specific danger, that may be different. Georgiades established
that if a defendant was acting in self-defence at the moment when he was alleged
to be in possession of a firearm, then he would not be guilty. But if the possession
with intent to endanger life was alleged to have occurred at some time before that
moment and at a time when he or she was not in immediate fear of attack, then, in
accordance with Stubbs and Thomas, Georgiades did not apply.
(2) The answer to counsel’s argument based on conditional intent was provided
by Malnik v DPP [1989] Crim. L.R. 451 (a case not cited in argument). In that
(offensive weapon) case, Bingham L.J., as he then was, drew a distinction between
individuals who armed themselves with an offensive weapon and those concerned
with security and law enforcement. By analogy, the public policy reasons which
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