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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Cremin, R. v [2007] EWCA Crim 666 (16 January 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/666.html Cite as: [2007] EWCA Crim 666

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 16th January 2007

1. Lord Justice Moses: This appeal arises out of a somewhat unusual case relating to the possession of ammunition. We make that observation for two reasons. Firstly, because the appellant in the instant appeal, Patricia Cremin, a lady of 44 with no previous convictions, is someone who one would never have expected to get involved in what, on its face, is so serious an offence. The second unusual feature is that the judge, in attempting to assist the jury in answer to a question, appears to have muddled what would otherwise have been a perfectly simple issue for them. The appellant was charged with two offences: conspiracy to sell ammunition and possession of a quantity of ammunition in the second count. She was acquitted of conspiracy, but she was convicted of possession.
2. The charge arose out of a police raid on a flat on 21st July 2005. The police had been observing the flat. The appellant herself had been alone in the flat for some eight hours when the police raided it at 11.47 p.m.. She had been living at the flat from time to time since December 2004. The reason why she had been doing so matters not. From time to time she shared a bed with her partner, the co-accused Downs, who was convicted of the conspiracy offence. But due to a bad back -- the effect on her was not challenged by the prosecution -- she spent part of the time sleeping in the living room.
3. It was there that she was found when the police raided at 11.47. They had been observing comings and goings earlier on and arrested men in the flat when they arrived. They broke down the door, came into the living room and found a large number of rounds of ammunition spread out on the living room floor, much of it in see-through plastic bags near a green ammunition box filled with similar bags of ammunition with the lid open. Also found in the flat, but not the subject of an accusation against Miss Cremin, was a Mac 11 submachine gun with magazine and ammunition.
4. Some ammunition was found in a file in another room in the flat, but she was not accused of possession of that ammunition by the time the trial was underway. She was accused of possession of the ammunition within the green ammunition box, but as a result of submissions advanced on the appellant's behalf by counsel who appeared in this appeal and appeared for her at trial, Miss Edhem, the judge did not leave, or at least did not intend to leave, to the jury the issue of her possession of that which was inside the metal box. But the prosecution did persist in the allegation that she was in possession of the rounds of ammunition seen within the transparent plastic bags strewn around the living room of the flat near the box.
5. We should observe that there are still photographs taken from a moving video of the scene, but since they take pictures only of that which was seen after the police had sorted through the ammunition, to ensure that it was safe, it is of no assistance in painting the picture of what the police found, when they arrived.
6. The appellant's account when she gave evidence was to say that she had no knowledge of the ammunition within the flat and thus she was neither in possession of it, nor did she know about it.
7. She had, she said, been suffering from pain on the day before the police raid and had not left the flat. On the day of the police raid she had cleaned the flat as best she could, gone down with her partner, Downs, to her mother's house and had not returned, after an appointment at the hairdressers, until 3.30 in the afternoon. She was there alone. She did see the ammunition box, but it was her case that she believed the box was a type of junk which her partner often brought back to the flat and was not aware that there was anything inside it. She had not seen any ammunition lying around in the living room.
8. She did accept that she had a measure of control over that which was in the flat since she said, if she had been aware of the ammunition, she would have left the flat. That answer was not surprising, since the flat was effectively her living accommodation at the time. But she said, so far as the box was concerned, she had pushed it under the settee while she watched television and then, with the aid of painkillers, had fallen asleep whilst watching television at about 9.40 p.m.. She awoke to find the police raid taking place with a policeman, although she did not realise it was a policeman, standing over her with a gun and people shouting. Thus her case was that she was not aware of any contents of the ammunition box and she was not aware of the transparent plastic bags containing ammunition. They can only have emerged from somewhere else, probably the ammunition box when it was opened when her partner returned to the flat very shortly before the police raid.
9. As is by now well settled it would have been no defence to the offence for which she was charged, under section 1 of the Firearms Act 1968, for her to say she was unaware that the box contained ammunition. Provided the prosecution could make the jury sure that she knew there was something in the box and provided she had such measure of control as to indicate possession, she would be guilty of possession of ammunition in the box. As we have said, since she lived in the flat that would not have been a difficult issue for the prosecution to prove: see in particular, R v Waller [1991] Crim LR 381 and R v Steel [1993] Crim LR 298. That that strict view of the statute is the law has now been settled for many years and it is not necessary in the instant appeal to elaborate the legal propositions further.
10. The issue, therefore, for the judge to direct the jury upon was simple. Early in his legal directions to the jury, the judge accurately told the jury what they had to decide in relation to possession. He said this:

"What is meant by possession? For practical purposes in this case it means knowing it is there [a quantity of ammunition] and having a measure of control over it."

11. In the same passage, a short while later, he asked:

"... did she have control over it? That is not in the sense that she could do as she liked, but that she knew it was there and that while she was there she was living with it, putting up with it, not reporting it to the police, not leaving, not throwing it out and getting rid of it, but having it there just as you might possess something in your own house even if you do not own it."

12. He then went on to make clear to the jury how they should approach the issue in the light of the evidence, essentially, he told the jury not to concern themselves with her state of knowledge relating to what was or was not inside the ammunition box, but to concentrate rather upon the ammunition lying around in the living room in the transparent bags. As he put it:

"... the police case and the video is that it [the ammunition] was all over the place. If you accept that and find that she must have known and stayed in the house and lived with that ammunition then you may reach the view that she possessed it. It is a matter for you. ... However, if she did not know it was lying all over the place then you are unlikely to be very impressed by what was in the ammunition box and in the filing cabinet. So my advice to you is to concentrate on what the Crown say was everything and decide what you think about that."

13. We endorse the judge's approach, which might have been put with even greater force, namely to invite the jury to concentrate on the issue as to whether she knew of the ammunition lying around in the plastic bags before she went to sleep, or whether she may have been telling the truth when she said she had no knowledge of it.
14. That was her case, as the judge reminded the jury later when dealing with her evidence. He recalled that she had denied ever seeing the gun and she appeared to be saying that, even if she had seen the ammunition within the transparent bags, it would only have looked to her like a bag of screws and bolts. That, of course, would not have been a defence if she had seen it. The real issue, therefore, was whether she had seen those bags.
15. The judge, shortly before the jury retired, reminded them as follows:

"If it is clear to you, so that you are sure, that she must have known and accepted and remained in possession of the ammunition in the flat in that time, she would be guilty on that count. I think it would be unfair to her to invite you to go into careful guesswork as to what she knew about whether or not there were contents in the ammunition box and the filing cabinet."

In other words, he was, shortly before the jury retired, making it clear to them that it was the ammunition lying around in the transparent bags on which they should concentrate.

16. After the jury had retired they returned with a question asking for:

"... clarification on the definition of possession in the context of this case, especially count 2."

17. The judge, unfortunately, in answer to that question did not, in our view, properly illuminate or elucidate what he had said earlier about the meaning of possession, in particular the issue the jury had to decide in relation to this appellant. He said this:

"There are two items to possession: one is knowledge that the thing exists, as opposed to exact knowledge of what it is, and the other is what the old legal writers used to call the intention to possess. Possession, of course, is not the same as owning."

18. We do not regard that as a helpful direction as to what the jury had to decide. Unfortunately, the judge then did not improve his directions in giving two examples of what he was trying to convey to the jury. He gave an example of a visitor's possession of a parcel in relation to which the visitor accepted that he had told his host that it contained a kilogramme of pure heroin, which was so far away from the facts of the case as to be positively misleading. He then gave another example of a visitor bringing a parcel around to a house in relation to the issue of the measure of control. But, again, since the parcel obviously contained something, and since this case was not concerned with the contents of a parcel, that did not illuminate.
19. Miss Edhem rightly submits that the danger of these examples might have been to revive in the mind of the jury the issue of whether the appellant did or did not have knowledge that there was something contained in the ammunition box. There was no need or point in referring to the ammunition box, either obliquely by reference to a parcel or otherwise, since the judge had already attempted to make clear to the jury that the case stood or fell on the basis of her knowledge and control over the transparent bags containing the ammunition. If she had seen the bags, she knew that they contained something and it would have been obvious, save to the blind, that it was ammunition.
20. In short, the examples given in answer to the jury's question did not properly answer that question and ran the risk of deflecting the jury from the real issue it had to decide. We think that the judge fell into error in the way he summarised the law in response to the jury's specific request for clarification.
21. The issue then arises as to what effect that unilluminating response had upon the all important issue for us in this appeal, namely the safety of the verdict. As we have said, we take the view that the judge correctly summarised the law in relation to possession, so far as it was necessary to do so, in the early part of his summing-up and shortly before the jury retired.
22. We think the issue was a very simple one, focused, as it was, upon the plastic transparent bags which undoubtedly contained ammunition and which were outside the box. The issue for the jury was whether it was sure that the appellant had seen those bags before she fell asleep, before the police raid, appreciated that they contained something, as she must have done, and whether she had a measure of control over those plastic bags -- again, an issue about which there could have been little doubt, bearing in mind that it was the accommodation in which, for the most part at that time, she lived.
23. We take the view that, although the judge fell into error, the verdict was safe. The issue was sufficiently clearly left to the jury as to her possession of those transparent plastic bags. It was a clear issue which emerged from her own evidence and must have been the subject matter of debate both between the prosecution and the defence in their final submissions.
24. In those circumstances, wrong though the answer to the jury's question was, we do not think that it can have misled the jury from the real issue it had to decide, or have deflected them from a fair and proper consideration of what, in our view, was a very strong case. In those circumstances, this appeal is dismissed.