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Law, R. v [1999] EWCA Crim 210 (1 February 1999)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1999/210.html
Cite as:
[1999] EWCA Crim 210,
[1999] Crim LR 837
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RICHARD ANDREW LAW, R v. [1999] EWCA Crim 210 (1st February, 1999)
No:
9802096 Z3
IN
THE COURT OF APPEAL
CRIMINAL
DIVISION
Royal
Courts of Justice
The
Strand
London
WC2
Monday
1st February 1999
B E F O R E :
LORD
JUSTICE SWINTON THOMAS
MR
JUSTICE TUCKER
and
MR
JUSTICE PENRY-DAVEY
- - - - - - - - - - - - -
R E G I N A
- v -
RICHARD
ANDREW LAW
- - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - -
MR
M HARRIS
appeared on behalf of the Appellant
MR
G WALTERS
appeared on behalf of the Crown
- - - - - - - - - - - -
JUDGMENT
(
As
Approved by the Court
)
- - - - - - - - - - - -
Crown
Copyright
Monday
1st February 1999
JUDGMENT
LORD
JUSTICE SWINTON THOMAS: The appellant is a dealer in firearms carrying on his
business in Wales through a company called the Shooters Rights Association
Limited. He is a reputable dealer and a recognised expert in his field. No
allegation of dishonesty or bad faith is made against him. The appeal relates
to a short point of construction pursuant to section 5(1A) of the Firearms Act
1968 as amended by section 1(2) of the Firearms (Amendment) Act 1988.
On 25th February 1998, in the Court Crown court at Swansea before his
Honour Judge Morton, the appellant pleaded guilty following a ruling made by
the judge to Counts 2, 5, 6, 7 and 8 in the indictment laid against him. All
the counts charged him with the possession, selling or transferring of a
prohibited weapon contrary to section 5(1A) of the 1968 Act. He was fined the
sum of £1,000. There were other similar counts in the indictment which
are irrelevant to this appeal. The appellant appeals against his conviction by
the leave of the Single Judge.
We can state the facts comparatively shortly. On 8th January 1997 the
appellant went to the forensic science service laboratory in Lambeth to examine
a firearm as a potential expert for the defence in a criminal prosecution. He
had in his possession an MAC 10 submachine gun. It was the opinion of an
expert at that laboratory that the weapon was capable of burst fire. That is
the subject matter of Count 2 in the indictment.
Count 5 charged the appellant with the offence of possessing a prohibited
weapon, and Count 6 was transferring that weapon. The weapon in question is an
MAC 10 open bolted pistol which the appellant examined on behalf of a client
and returned it to him following his examination. A Home Office expert
examined the weapon and came to the conclusion that the firearm was a variant
of the Ingram submachine gun which was designed to be capable of fully
automatic and semi-automatic fire. However, this particular gun had been
adapted so that it could not be utilised for automatic fire. However, the
adaptation was not fully effective with the result that it was still capable of
automatic fire in the hands of an expert or a man with sufficient knowledge of
the gun to use it for that purpose.
Counts 7 and 8 charged the appellant with the possession and the selling
or transferring of an Ingram style MAC 10 submachine gun. The appellant had
acquired the gun and had sold it to a client. The evidence was that this
weapon was also capable of automatic fire, but only with some difficulty and
again only in the hands of an expert or a person who had special knowledge of
the gun.
A number of facts were agreed between the parties for the purposes of the
judge's ruling. It was agreed that each of the relevant weapons was capable of
burst fire in the hands of an expert.
Section 5(1A) of the 1968 Act as amended provides:
"A
person commits an offence if, without the authority of the Defence Council, he
has in his possession or purchases or acquires or manufactures, sells or
transfers -
(a)
any firearm which is so designed or adapted that two or more missiles can be
successfully discharged without repeated pressure on the trigger."
Prior to its amendment the Section read as follows:
"A
person commits an offence if, without the authority of the Defence Council, he
has in his possession or purchases or acquires or manufactures, sells or
transfers -
(a)
any firearm which is designed or adapted if pressure is applied to the trigger
missiles continue to be discharged until pressure is removed from the trigger
or the magazine containing the missiles is empty."
It is of relevance and of some importance that prior to the amendment, as
the reading of the section shows, the prosecution was required to prove that
the firearm was designed and adapted so that, if pressure was applied to the
trigger, missiles continued to be discharged until pressure is removed, whereas
by the amendment the prosecution are required to prove that the firearm was
designed or adapted so that two or more missiles can be successfully discharged
without repeated pressure on the trigger.
The insertion of the words "two or more missiles can be successfully
discharged" are central to the point of construction that arises in this
appeal. It is common ground that two or more missiles could be successfully
discharged from each of the weapons the subject matter of the counts in the
indictment, but it is submitted by Mr Harris, on behalf of the appellant, that
that is not sufficient for the purpose of proving an offence under section 5.
It is submitted that the section requires the prosecution to prove that the
firearm had been designed or adapted with the intention of being used as a
semi-automatic weapon.
Judge Morton came to the conclusion that if the weapon was capable of
burst fire, albeit only in expert hands, then the offence was made out. Mr
Harris, on behalf of the appellant, in a very full and forceful submission has
submitted that the judge was wrong to so hold. He submits that on the wording
of the section the judge was wrong to attribute an entirely objective meaning
to the words; that the words "designed or adapted" import into the section an
intention to design or adapt the weapon for that purpose, and consequently, at
least to an extent, a subjective as opposed to an objective test must be applied.
Mr Harris has put before us a very full and well argued skeleton argument
which we have, of course, read and considered. He expanded on that skeleton in
the course of his submissions and emphasised the central points in it. He
submitted that the words "designed or adapted" mean that something more than a
mere capability for burst fire was intended by the draftsmen of the section.
He invited our attention to the history of the legislation and its
predecessors, and he then pointed to the fact that if it was intended that the
test should be objective only, that could easily have been achieved by omitting
the words "designed or adapted" so that section 5(1) would then read:
"A
person commits an offence if, without the authority of the Defence Council, he
has in his possession or purchases or acquires or manufactures, sells or
transfers any firearm that two or more missiles can be successfully discharged
without repeated pressure on the trigger."
In
other words the words "designed or adapted" are unnecessary if an objective
test is to be applied.
Mr Harris also invited our attention to a number of authorities which were
decided under other statutes or different divisions of the 1968 Act.
We must, as Mr Harris submitted, consider the words of this section in
their context, as was stressed by Lord Parker in
Maddox
and Storer
[1963] 1 QB 451, at page 455.
Mr Harris also invited our attention to the various dictionary definitions
of the words "designed" and "adapted". We do not think that the authorities or
the dictionary definitions are of any very great assistance to us in construing
the words of section 5(1A). We must, of course, take into account the history
of the legislation and the wording of the previous Acts. However, in the end
we have to construe the words of the section as they stand.
It is, however, necessary for us to refer briefly to a decision of his
Honour Judge Samuels given on 11st March 1998 in the Knightsbridge Crown Court
in a case called
R.
v. Savage
,
in which he considered the very point that arises in this case. Judge Samuels
came to the opposite conclusion to that reached by Judge Morton. Judge Samuels
said in terms that he differed from Judge Morton's conclusions, and he said:
".....the
construction that he [that is Judge Morton] adopted gave inappropriate emphasis
to the potential capacity of a particular weapon to produce an end result in
contrast to what the weapon had in fact been designed or adapted to produce."
Judge Samuels then went on to say:
".....my
tentative conclusion is that I would be likely at that stage [that is a
submission of no case to answer] to decide on the facts currently known to me
that the phrase 'so designed or adapted' is not of sufficient width to mean
'capable of being so used' which, on analysis, is how, in the opinion Judge
Morton construed it."
Judge Samuels' view was, as he said, a tentative one. We do not agree
with it. In our judgment in reaching the conclusion that he did Judge Samuels
focused his attention solely on the words "designed or adapted" without
considering those words in the context of and in conjunction with the words
"that two or more missiles can be successfully discharged". In our judgment
the conclusion reached by Judge Morton on the wording of the section was
plainly correct. Section 5 does not import either explicitly or implicitly any
intention on the part of the designer or the adaptor. The section is not framed
using words such as designed or adapted "for the purpose of" burst fire or
repeated fire. The central and vital words, in our judgment, are the words
"can be successfully discharged". On the agreed facts two or more missiles
could be successfully discharged without repeated pressure on the trigger.
Once that is proved then, in our judgment, the firearm is so designed or
adapted. If the weapon is capable of burst fire, then it is caught by the
words of the section. Accordingly we would uphold the ruling made by his
Honour Judge Morton, and we would dismiss this appeal.
© 1999 Crown Copyright