Firearms
This page has directions for simple possession, defences of duress and possession with intent.
Possession of a prohibited firearm
Possession of ammunition without a firearm certificate
Breaking that down into the two elements of the offences, in order to convict the defendant, you would have to sure of the following:
“Possession.” Someone has possession of something if he has physical control or custody of it and knows that he has custody or physical control of it. He does not have to know that it is a gun or ammunition. He just has to know that he had possession of the object or objects. If someone has a gun and ammunition in **a bag in his bedroom and has physical control or custody of the bag and knows that it is there, he has possession. Someone who is given a firearm by another person and who holds it, even for a very short time, is in possession of it, provided that he knows that it is a firearm.
“A firearm.” Our exhibit *, the gun found by the police is a prohibited firearm.
“Ammunition” Our exhibit *, the ammunition found is ammunition which requires a firearms certificate.
The prosecution do not have to prove that D** owned the firearm or ammunition or that he intended to use them, merely that he was in possession of them.
Duress
As I have said, D** does not dispute that he was in possession of the **machine pistol or the ammunition. He says though that he was acting under duress, that he was in possession of the firearm and ammunition because of a combination of threats and circumstances which amount to duress. He says that **
Duress may be a defence to a criminal charge. As it is for the prosecution to prove the defendant's guilt, it is for them to prove that the defence of duress does not apply in this case. The defendant does not have to prove that it does apply.
When considering duress, having regard to all the evidence, you must answer a number of questions
Was D**, or might he have been, driven to be in possession of the firearm and ammunition because he genuinely believed that if he did not do this, either he or a member of his immediate family would there and then, or in the near future, be killed or seriously injured?
If your answer is ‘no’, the defence of duress does not apply and he is guilty (and you do not have to consider any further questions.)
If your answer is ‘yes’, go on to consider the second question.
Would a reasonable person with D**’s belief and in his situation have been driven, or might he have been driven, to be in possession of the firearm? By a reasonable person, I mean a person of reasonable firmness, and of the defendant's age, sex and background. The reactions of a reasonable person may or may not be the same as those of the defendant himself.
If your answer is 'no', the defence of duress does not apply, and you must find the defendant guilty (and you do not have to consider any further questions.)
If your answer is 'yes', (and only if your answer is “yes”), go on to consider the third question.
Was there an opportunity for the defendant to escape from the threats without damage to himself or his family by running away or going to the police which a reasonable person in his situation would have taken but which he did not take? If you are sure that there was such an opportunity, the defence of duress does not apply and he is guilty.
If the answer to the first two questions is “yes”, but the answer to the final question is “no”, he is not guilty.
N.B. voluntary association
Firearm (imitation) with intent
Possession of an imitation firearm with intent to cause fear of violence
Breaking that down into the various elements of the offence, in order to convict the defendant, you would have to sure of the following:
“Possession” Someone has possession of something if he has physical control or custody of it and knows that he has custody or control of it.
“An imitation firearm” An imitation firearm means anything which has the appearance of being a firearm whether or not it is capable of discharging any shot, bullet or other missile.
It is not disputed that someone was in possession of an imitation firearm. The issue is whether it was D** who had it, or someone else. So the first and perhaps most important question that you have to answer in relation to Count * is - Are you sure that it was D** who called at the flat with the imitation gun?
If you are sure that he did, move on to the second question.
Did the defendant intend to cause C** to believe that unlawful violence would be used against him?
To be guilty, he must have intended by possessing the imitation firearm to cause C** to believe that unlawful violence would be used.
Unlawful violence means there is no justification or excuse in law for it.