The King v Paul Martin McKerr

Factual and Procedural Background

This appeal arises from a conviction following a trial before a judge alone on 6 July 2023. The Appellant was convicted of two offences under the Firearms (Northern Ireland) Order 2004: possession of a firearm or ammunition in suspicious circumstances, and possession of a firearm other than a handgun without a certificate. The Appellant was sentenced to nine months' imprisonment, which has been served. A co-accused pleaded guilty to similar offences and received a longer sentence.

The incident occurred when police stopped the Appellant's works van on the night of 21 February 2018. During the search, police found black bin bags in the passenger footwell containing 22 empty rifle magazines suitable for an AK47-type rifle. The Appellant and the co-accused were occupants of the van. Searches of their homes followed, with incriminating items found at the co-accused's residence but none at the Appellant's.

The Appellant accepted the stop and search of his van and the presence of the bags with magazines in the passenger footwell but denied possession of the magazines, arguing lack of knowledge and control. The van’s rear compartment was locked and separate from the driver's cab. The Appellant did not give evidence at trial after being warned of adverse inferences that could be drawn from silence.

The co-accused pleaded guilty shortly before trial to all charges except one, which was accepted by the prosecution, and the case proceeded against the Appellant alone. The trial included police and expert witness evidence.

Legal Issues Presented

1. Whether the trial judge erred in refusing the submission of no case to answer at the close of the prosecution case.
2. Whether the trial judge erred in convicting the Appellant based on the evidence presented.

Arguments of the Parties

Appellant's Arguments

• The judge erred in refusing the submission of no case to answer, as the evidence was insufficient to convict.
• The judge failed properly to assess evidence pointing away from guilt, including the Appellant’s lack of knowledge and control over the magazines.
• The Appellant’s movements, including collecting breeze blocks and the locking mechanisms of the van compartments, were relevant to his defence.
• The judge misunderstood relevant case law, particularly R v Whelan, which should have led to quashing the conviction.

Respondent's Arguments

• The evidence was sufficient to proceed past the prosecution test and to convict.
• The judge was entitled to reject the submission of no case to answer given the unchallenged primary facts.
• The adverse inference drawn from the Appellant’s failure to give evidence was proper.
• There was internal inconsistency in some police evidence, but the overall evidence was clear regarding the location of the bags.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the evidence and legal principles meticulously. It noted the unchallenged primary facts that the magazines were found in black bin bags in the passenger footwell of the Appellant’s van. The judge was entitled to reject the submission of no case to answer because the prosecution had presented sufficient evidence to allow the case to proceed, including the co-accused’s admission of possession and the positioning of the bags.

The court acknowledged the Appellant’s arguments pointing away from guilt, such as the locking mechanism of the van’s compartments and the innocent purpose of collecting breeze blocks. However, these factors were not sufficient to negate the inference of possession and knowledge.

The court found the judge was justified in drawing an adverse inference from the Appellant’s failure to give evidence explaining the presence of the magazines. The judge’s factual findings, including the location of the bags in the footwell, were supported by the evidence despite minor inconsistencies in witness testimony.

The court also considered relevant legal authorities on possession and the test for no case to answer, concluding that the judge applied the law correctly and made findings within his discretion. The judge’s overall reasoning was sound, and any lack of clarity did not undermine the decision.

Holding and Implications

The appeal is DISMISSED.

The court upheld the conviction and sentence of the Appellant. The direct effect is that the conviction stands and no new precedent is established. The judgment affirms the application of established legal principles regarding possession offences and the proper approach to submissions of no case to answer in non-jury trials.