Firearms – Doing Nothing is Not an Option
On 20 October 2018 police on uniformed patrol identified a vehicle of interest to them. They followed it for a short distance before causing it to stop. A Mr Jenkins was the driver and a female, Ms Price, was in the front passenger seat. On searching the vehicle, a stun gun was found in the glove compartment. It was an agreed fact that Mr Jenkins knew at the time that the stun gun was in the car and that he was the owner, driver and registered keeper of the vehicle at the time.
Mr Jenkins gave oral evidence in his defence including as to how the stun gun came to be in his car, namely that it was put in the glove compartment by his passenger, Ms Price. He said that he did not know that Ms Price had the stun gun until she produced it in the car only very shortly before the police apprehended him. When she did so, he told her to “get that thing away from me”. She then placed the stun gun in the glove compartment. He believed that she would remove the stun gun from the car when he dropped her back home.
Jenkins was charged with being in possession of the stun gun and was convicted by magistrates. He sought to appeal that conviction by way of case stated (an appeal on a point of law to the High Court).
What was the basis of the appeal?
The argument was that there was insufficient evidence for a finding that Mr Jenkins exercised words or actions revealing such power or control of the stun gun as could fairly amount to possession of it. Mr Jenkins had only the “barest custody” of the stun gun such that he did not have it (relying on Sullivan v Earl of Caithness  All ER 844).
Heavy weight was placed on Mr Jenkins’ direction to Ms Price to get the stun gun away from him. This is said to be clear evidence that he was not in control of the stun gun, let alone assenting to be in control of it. It was the very opposite of exercising control or assenting to be in control.
What did the court decide?
In rejecting the appeal and upholding the conviction, the court stated:
- What is required are words or actions revealing power or control, even if only for a very short period, such as fairly amount to possession; the prosecution must prove that an accused was knowingly in control of something in circumstances in which he was assenting to be in control of it.
- Mere knowledge of the existence and presence of the gun would not by itself establish possession on the part of Mr Jenkins. Nor did the Magistrates proceed on that basis.
- Here, as the Magistrates found, there was more than mere knowledge; there was at least a degree of control on the facts as expressly found by them: the presence, to Mr Jenkins’ knowledge, of the stun gun in the glove box of his car which he was driving when stopped by the police.
- The stun gun was, to Mr Jenkins’ knowledge, in his car which he chose then to drive. Despite initially objecting to its presence, he then allowed the stun gun to be placed and Judgment Approved by the court for handing down (subject to editorial corrections) Double-click to enter the short title remain in his car which he then drove away (for some 10 minutes), controlling its location.
- All this amounted to more than the “barest custody” (the sufficiency of which as a concept for the purpose of establishing possession the court in Sullivan v Earl of Caithness (supra) in any event did not have to determine) and more than the fleeting encounter of the defendant with the gun.
What could he have done differently?
He could have insisted Ms Price leave the car with the stun gun; he could have left the car in the event that she refused.
Whilst Mr Jenkins may have expressed concern at the outset, any objection did not prevent him from voluntarily continuing on his way with the stun gun in place.
The fact that the period of possession was short-lived did not afford Mr Jenkins any defence.
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