One ITL, the Chambers of Marion Smullen, are delighted to announce that with effect from 1st January 2017 we will be merging with the Chambers of William Mousley QC at 2 Kings Bench Walk.

Our new contact details are 020 7353 1746 / email / website

Law of Possession is it really under control?

September 3, 2012

Being in possession of a prohibited firearm is a serious issue as is being in possession of a prohibited article, whether it be a weapon or a drug. The law has quite rightly been very strict regarding this area of law, and the leading authorities have always sought to restrict the defences.

The Law

The law relating to possession is long established and can be found in the case of Warner v Metropolitan Police Commissioner (1968) 52 Cr. App. R. 373. The main principles of what constitutes possession have flowed from this decision, namely;

  1. The statute is absolute, however in considering possession there should be an element of mens rea within the meaning of the word "possession";
  2. There must be physical control by the possessor and knowledge of what is possessed;
  3. The majority judgment of Warner was that only lack of knowledge of the contents in its entirety is enough to show that there is not possession and not a mistake as to the quality of the item Although there is disparity between the exact degrees of knowledge required between the various judgements in considering the knowledge required over quality and nature of the item possessed.

The case law that followed discussed these different elements, but they have remained the essential elements of the offence and have been continuously affirmed.

This is confirmed in various cases regarding firearms such as Woodage v Moss [1974] 1 W.L.R. 411, DC, Sullivan v. Earl of Caithness [1976] Q.B. 966, 62 Cr.App.R. 105, DC, Hall v. Cotton and Treadwell [1987] Q.B. 504, 83 Cr.App.R. 257, DC and more recently R. v. Zahid [2010] 9 Archbold Review 2, CA, where, in that case the Court went even further as to limit the defence for possession to the situation where there is no knowledge of the item. This means that where a person holds a mistaken belief that the item possessed was something innocent and not a drug or firearm, this would not be a defence and possession would be proven.

The reason for such a strict interpretation of the offence is obviously due to the social evils of unlawful drugs and firearms possession. As discussed in Warner the possessing of prohibited drugs and, as in the above cases of possessing a firearm due to the scourge on society and the destructive and dangerous nature of these crimes justifies a strict interpretation of the law.

Although it is accepted that the offence is absolute and strict liability in nature, there is a defence as there are several considerations that must be taken into account before guilt can be proven.

This article will now examine what is to constitute possession, which is not as simple as the above case law might seem to suggest.

The Case

A young woman is charged with being in possession of a firearm because she made the admission in interview that when her boyfriend came to her house to stay she saw what she thought was a gun. She walked over to the gun and picked it up and said to her boyfriend 'IS THIS REAL?' to which he replied 'YEH'.

She immediately dropped the gun and screamed at her boyfriend 'GET IT OUT OF HERE'.

The question arises, therefore as to whether she was guilty of possession of the firearm?

It could be argued that she fulfilled both the actus of possession, namely picking the gun up and therefore exerting control over the item, and the mens rea as she intended to pick it up and therefore had the requisite intent and knowledge. The learned prosecutor submitted that this was possession, as supported by Archbold, because it is an absolute offence with strict liability and once you are in possession, you have committed an offence.

In the case of Warner it does state, per Lord Pearce, 'that if upon discovery of possession of a controlled substance the item is rejected or discarded then possession of the item is not taken.' This principle is accepted within drug possession and was accepted by the Court in the case under consideration.

It must be taken therefore, that there is an opportunity to reject an item to prevent possession being taken.

Even in Zahid which limits the knowledge required still confirms the principle that;

'A man takes over a package or suitcase at risk as to its contents being unlawful if he does not immediately examine it (if he is entitled to do so). As soon as may be he should examine it and if he finds the contents suspicious reject possession by either throwing them away or by taking immediate sensible steps for their disposal.'

This principle is long established and supported in Zahid. This establishes that where at first you may not be in possession as you have no knowledge of what is in the package, a lack of inspection and a prolonged possession would amount to knowledge through lack of action.

Finally there are two cases regarding possession of firearms, which should be considered, as they take a measured approach and deal specifically with when possession is taken, state that;

Sullivan v. Earl of Caithness;

Where the Earl's mother's flat was used to store the firearms she was said to have per May J 'the barest of custody'. This meaning that there is a degree outside possession whereby it cannot be said to be under your control. This is again supported with the case of Hall v Cotton in which;

Hirst J stated in his judgement;

'Cases of momentary delivery of a shotgun to another person in, for example, a temporary emergency or for the purpose of inspection, could hardly be said to have involved either a transfer by the deliveror or the taking of possession by the deliveree; equally, a spouse or servant temporarily entrusted with the custody of a shotgun by its owner would in normal circumstances be regarded as the owner's agent; there would thus be no transfer by the latter, nor acceptance of any more than the barest custody by the former, with no infringement of the Act in either case.'

This translates to a ‘de minimis principle’. In that ‘the law cares not for small things’. This is not to say that the example case is a trivial matter or that possession of a firearm just because it is of a brief nature is not worth consideration.

Considering the relevant case law and especially the principle that on inspection an item rejected does not amount to possession. This is what was argued on behalf of the woman in the above case by Gulam Ahmed Counsel at 1 Inner Temple Lane Chambers and accepted by the court, the charge was accordingly dismissed due to there being no case to answer.

This is an important consideration and defence lawyers should take note that there is much more to the law of possession than meets the eye and that the mere fact that someone has a prohibited item does not mean necessarily that they are liable for possession of it.