Distinct Evidence and Inference of Intent in Firearm Possession: Earp v R [2025] EWCA Crim 546

Introduction

Earp v R ([2025] EWCA Crim 546) is a decision of the England & Wales Court of Appeal (Criminal Division) delivered on 9 May 2025. The appellant, Michael Earp, had been convicted at trial on two counts of conspiracy to supply Class A drugs, possession of prohibited firearms and ammunition, including a Skorpion sub-machine gun with intent to endanger life. He was acquitted on a count of possessing three handguns with intent to endanger life and on a count of concealing criminal property. Leave to appeal was refused by the single judge, and Earp applied for an extension of time and renewed permission to appeal against conviction and sentence.

The key issues are:

Whether there was a case to answer on the firearm count involving the Skorpion sub-machine gun;
Whether a conviction on that count was inconsistent with the acquittal on the handguns count;
Whether the trial judge’s summing up was adequate; and
Whether the overall sentence was manifestly excessive or flawed in its application of sentencing guidelines.

Summary of the Judgment

The Court of Appeal refused Earp’s renewed application for leave to appeal. It held that:

There was more than sufficient evidence—EncroChat messages, DNA on ammunition, and his role as a trusted lieutenant—to go to the jury on possession of the Skorpion with intent to endanger life.
The conviction on count 5 (Skorpion) was distinguishable from the acquittal on count 3 (handguns) by reference to the inherently greater danger of the Skorpion, its loaded state, and Earp’s DNA on matching ammunition.
The judge’s legal directions and summing up were fully adequate and did not render the conviction unsafe.
The concurrent and consecutive sentences totaling 26 years were justified by reference to the sentencing guideline, Earp’s role relative to his co-defendant Aziz, and proper application of totality and starting points.

Analysis

Precedents Cited

R v Jones (IF) [1997] 1 Cr App R 46 – “Enable” in the second limb of s. 16(1)(b) of the Firearms Act 1968 means more than providing an opportunity; it requires intent that life be endangered.
R v Bentham [1972] 3 WLR 398; [1973] QB 357 – Clarifies that intent need not be immediate or unconditional; it is sufficient that the defendant foresees danger “if and when the occasion arises.”
R v A, B, D and C [2021] EWCA Crim 128 and R v Atkinson and others [2021] EWCA Crim 1447 – Landmark authorities on the admissibility of EncroChat intercepts in UK prosecutions.
R v Mulvey [2019] EWCA Crim 1835 and R v Wright [2017] EWCA Crim 126 – Sentencing precedents for large-scale Class A drugs conspiracies and role-based starting points.
R v Johnson [2022] EWCA Crim 1575 – Guidance on non-mathematical construction of guideline levels in major drug cases.

Legal Reasoning

1. No Case to Answer
Possession of a firearm with intent to endanger life under s. 16 Firearms Act 1968 can be established by intent to enable another to use it. The Court applied Jones and Bentham to confirm that the jury could infer intent from Earp’s role in fetching, loading and securing the Skorpion. The aggregation of EncroChat messages, DNA on ammunition, and instructions from his co-defendant provided a full picture from which intent could be inferred.

2. Consistency of Verdicts
The Court reaffirmed that inconsistent verdicts allowed by the jury system do not automatically render a conviction unsafe. It highlighted the material differences between count 3 and count 5—namely the type of weapon, recovered state, presence of ammunition, and DNA evidence—justifying separate inferences.

3. Summing Up
The Appellate Court held that there was no obligation for the judge to list all mental states that would not satisfy intent, nor to rehearse agreed documentary evidence in full. The judge’s guidance correctly identified the offence elements, and defence counsel had the opportunity to highlight ambiguities in his speech.

4. Sentencing
The judge adopted starting points from leading cases for a “significant” rather than “leading” role, applied appropriate reductions for totality, and differentiated Earp’s 26-year sentence from Aziz’s 33 years. The Court found the reasoning transparent and the outcome within the permissible range.

Impact

This decision strengthens several points of appellate and trial practice:

Trial judges may leave to juries cases where intent to enable is supported by a combination of communications and physical evidence, even if the defendant was not party to every exchange.
An acquittal on one count does not preclude conviction on another count if distinct or more compelling evidence supports the latter.
Complex digital evidence (EncroChat) can found inferences of intent when corroborated by physical evidence.
Summing up need not burden juries with exhaustive negative examples of mental states, provided the offence elements are clearly identified.
Sentencing remarks from co-defendant cases can validly inform roles and starting points when properly explained.

Complex Concepts Simplified

EncroChat: An encrypted mobile phone network widely used by organised crime until June 2020. Intercepted messages from this network can be admitted as evidence when lawfully obtained via international cooperation.
No Case to Answer: A legal test at the close of prosecution evidence. If there is any evidence on which a jury properly directed could convict, the judge must allow the case to proceed.
Intent to Enable: Under s. 16(1)(b) Firearms Act 1968, it is not enough merely to facilitate; there must be an intent that the weapon be used to endanger life when needed.
Inconsistent Verdicts: The jury’s prerogative to acquit on one count and convict on another based on evidence differentiation does not automatically render a conviction unsafe.
Totality Principle: Sentences for multiple offences should reflect the overall criminality without undue harshness; consecutive terms may be reduced to achieve a fair total sentence.

Conclusion

Earp v R reaffirmed the appellate standards for no case to answer submissions in firearm offences and clarified that convictions can stand alongside acquittals when differentiated by evidence. The decision underscores the judiciary’s willingness to draw intent inferences from combined digital and forensic data, and confirms that prosecutorial reliance on EncroChat material remains strong. Sentencing guidance continues to hinge on role-based starting points and careful application of totality. This judgment will serve as a key reference for trial judges, appellate counsel, and sentencing courts in future firearms and organised crime cases.