Report on Mandatory Sentences - Law Reform Commission

(i)
Possession or Control
4.57 Neither the term “possession” nor the term “control” is defined by the 1925 Act. As noted at
paragraphs 4.04 to 4.07, however, the term “possession” includes actual possession, which denotes
having custody and control over an article, and constructive possession, which denotes having control but
not custody. 117 The fact that the terms “possession” and “control” are separated by the conjunction “or”
serves to emphasise that either custody of, or dominion over, the firearms or ammunition will suffice for
an offence under section 15.
4.58 The term “possession” is thus broad enough to describe the range of roles played by those
involved in firearms offences. At one end of the scale there are the high-level offenders who may be in
charge of operations. These may be described as having constructive possession as they have ultimate
control over those who possess the firearms or ammunition on their behalf. At the other end of the scale
there are the low-level offenders who may, for instance, have been coerced or tricked into hiding firearms
or ammunition for someone else. These may be described as having actual possession of the firearms or
ammunition as they exercise physical control over the firearms or ammunition.
(ii) Intent to Endanger Life or Cause Serious Injury to Property or Intent to Enable any other
Person by means of the Firearm or Ammunition to Endanger Life or Cause Serious Injury to
Property
4.59 In addition to possessing or controlling the firearm or ammunition, the offender must intend,
personally, to endanger life or cause serious injury to property or to enable someone else to do so. Thus,
for example, a person transporting firearms or ammunition who has no intention of using those firearms or
ammunition himself or herself, might still be found guilty of an offence under section 15.
(b) Section 26 of the Firearms Act 1964
4.60 Section 112(1) of the Road Traffic Act 1961 prohibits a person from using or taking possession of
a mechanically propelled vehicle without the consent of the owner. Section 26(1) of the Firearms Act
1964, as amended, 118 provides that a person who contravenes section 112(1) of the Road Traffic Act
1961 and who, at the time of the contravention, has a firearm or imitation firearm with him or her, is guilty
of an offence. Again, it is difficult to determine the exact implications of the elements of this offence as
the Court of Criminal Appeal has not examined section 26 in recent times.
(i)
Using or Taking
4.61 Section 3(1) of the Road Traffic Act 1961 provides that the term “use” in relation to a vehicle
includes park, which means to keep or leave stationary. Presumably, however, the term also includes
“driving”, which means to manage and control and, in relation to a bicycle or tricycle, to ride. In relation to
a vehicle, at any rate, it is conceivable that an offender could manage and control a vehicle without
personally operating the vehicle. Thus, for example, an offender might manage and control a vehicle
where he or she forces the owner to drive by holding a firearm to his or her head.
4.62 The term “take” is not defined by the 1961 Act. A narrow definition of the term might refer to
taking custody whereas a broader definition might refer to taking possession which, as noted at
paragraphs 4.04 to 4.07, is not limited to having custody. The narrow definition of “take” implies that an
offender must have physical custody of the vehicle whereas the broader definition would allow for
situations in which an offender does not have physical custody, such as where the offender, at a remote
location from the vehicle, forces the owner to drive by threatening his or her family with a firearm.
(ii)
Mechanically Propelled Vehicle
4.63 Section 3(1) of the Road Traffic Act 1961 provides that the term “mechanically propelled vehicle”
means a vehicle intended or adapted for propulsion by mechanical means. This includes: (a) a bicycle or
tricycle with an attachment for propelling it by mechanical power, whether or not the attachment is being
117
118
McAuley and McCutcheon Criminal Liability (Round Hall, Sweet and Maxwell, 2000) at 208-209.
Section 57 of the Criminal Justice Act 2006.
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