England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		10th October 2007

1. LADY JUSTICE HALLETT: On 11 December 2006, the respondent used an electric stun gun during an assault in a public house. The gun is said to have resembled a torch but electrodes were exposed. This enabled it to be used as a stun gun by discharging electricity into the body on contact. It is accepted that the stun gun is a prohibited weapon for the purposes of section 5(1)(b) of the Firearms Act 1968. However, a prosecution expert in his report upon it has described it as a "non-lethal self-defence weapon". It is not a barrelled weapon.
2. The respondent appeared before HHJ Webb at the Wolverhampton Crown Court charged on an indictment containing two counts: possession of a disguised firearm, contrary to section 5(1A)(a) of the Firearms Act 1968 and a second count of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. Another count was added alleging possession of a prohibited weapon, contrary to section 5(1)(b) of the Firearms Act 1968.
3. The respondent pleaded guilty to the counts alleging possession of a prohibited weapon (the new count 2) with a maximum penalty of ten years, and assault occasioning actual bodily harm (the new count 3), which has a maximum penalty of five years. This, however, did not satisfy the prosecution. They sought a trial on count 1: possession of a disguised firearm. The reason is straightforward: possession of a prohibited weapon, contrary to section 5(1)(b) of the Firearms Act, has been expressly excluded from the minimum sentence provisions of section 51(a) of the Firearms Act 1968. Possession of a disguised firearm contrary to section 5(1A)(a), however, is expressly included within the minimum sentence regime. Unless, on conviction, the judge found exceptional circumstances, the respondent would be liable for an offence of possessing a disguised firearm to a minimum sentence of five years' imprisonment.
4. However, the question of whether or not a minimum sentence of five years is appropriate on the facts of this case is not the issue before us. The question for us is whether an electric stun gun is capable of being a firearm for the purposes of section 5(1A)(a) of the Firearms Act.
5. On 21 August 2007, the judge ruled it is not a firearm for those purposes. If that ruling is confirmed, the prosecution would be forced to offer no evidence on count 1 on the indictment. The trial has been adjourned pending this hearing and the respondent's co-accused released on bail. The respondent himself is in custody.
6. Mr Garrett, who appeared before us for the Crown but not below, in his well-crafted and thorough submissions took us through the Firearms Act 1968, as it was originally drafted. He helpfully divided the weapons covered by the Act into three categories: those exempt from any certification requirement; firearms requiring certification (see section 1 and now section 2); lastly, firearms which are designated as prohibited weapons.
7. Prohibited weapons may only constitute a small proportion of the firearms, as defined by the Act, but Mr Garrett insisted it is clear, from any reading of the Act, that all prohibited weapons are defined as firearms for its purposes.
8. Section 5, he reminded us, which sets out weapons subject to general prohibition, provided for just two categories. Subsection 1(a) referred to fully automatic firearms. These, Mr Garrett observed, would be lethal barrelled weapons from which any shot, bullet or missile can be discharged. The second category, dealt with in subsection (1)(b), includes "any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing...". This subsection has remained unchanged by subsequent amendment to the Act despite a whole series of them.
9. In Flack v Baldry [1988] 1 WLR 397 the House of Lords found that an electrical stun gun is a prohibited weapon for the purposes of subsection (1)(b). Electrical stun guns may be neither barrelled nor lethal but are prohibited weapons.
10. Mr Garratt also drew to our attention to subsection (1)(c). That, however, is linked to subsection (1)(b) and does not provide a separate category. It covers ammunition linked to prohibited weapons in subsection (b).
11. We turn to the section which creates the offence of possession of a disguised weapon namely section 5 (1A) (a) of the Act. Where relevant it reads::

"A person commits an offence if, without the authority of the [Secretary of State], he has in his possession, or purchases or acquires, or manufactures, sells or transfers-

(a) any firearm which is so designed [as another object]."

12. For the definition of a firearm in the Firearms Act 1968, we must resort to section 57(1), upon which most of the argument before us has focused. It provides:

"In this Act, the expression 'firearm' means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes -

(a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and

(b) any component part of such a lethal or prohibited weapon ..."

13. Mr Garrett submits that the words "and includes any prohibited weapon, whether it is such a lethal weapon as aforesaid or not" make it clear that a prohibited weapon within the meaning of section 5(1)(b) of the Firearms Act is a firearm for all purposes within the Act, whether barrelled or whether lethal or not. He informed the court that despite the considerable amendments, to which we have made reference, the definition section within section 57(1) has remained the same. He argues that the words of the statute are clear, both in section 57 and in the amended section 5. Had Parliament intended a definition other than that contained in section 57 to apply to the amended section 5, in his submission it would have been simple to qualify the type and nature of the firearm, to which the subsection was to apply, so as to exclude prohibited weapons.
14. Without wishing to embarrass Mr Sharman, who has appeared on behalf of the respondent both here and below, at one stage of the proceedings it seemed to us he virtually conceded the force of the applicant's submissions. However, he did his duty to his lay client and he attempted to support the judge's ruling.
15. Before the judge he relied upon a number of factors. First of all, he suggested that the use of the word "any" which precedes the words "prohibited weapon" in section 57(1)(a) provided the court with a discretion to say whether or not a particular prohibited weapon was also a firearm. The judge did not accept this argument. Mr Sharman wisely did not pursue it with any great enthusiasm before us. In our view, it is simply a non-runner.
16. Mr Sharman's second point found rather greater favour with the judge. He argued that on the prosecution's interpretation of section 57(1) the words, "means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged" would be otiose, because all prohibited weapons would be firearms.
17. The judge's ruling focussed on the presence of the words "lethal" and "barrelled" in the introductory words of the section and the presence of the word "lethal" in subsection (a) but the absence of the word "barrelled". He interpreted "any prohibited weapon, whether it is such a lethal weapon as aforesaid or not" as referring to any non-lethal but barrelled weapon, which is also a prohibited weapon. He accepted Mr Sharman's argument that the essential features of a firearm were that it was barrelled and that it was capable of discharging shot, bullet or other missile. He was impressed by the argument that to find any other interpretation might mean that a simple object, such as a water pistol, could become a firearm for the purposes of the Act, yet an air pistol, which is potentially more dangerous to life and limb than a water pistol, would not be covered. The judge was concerned, for example, that somebody found in possession of a CS gas cannister would not find themselves facing the minimum sentence provisions.
18. We should say that given the potential consequences of a conviction under section 5(1A)(a) of the Firearms Act 1968, on the facts of this case, we are sympathetic to the approach adopted by the judge. However, we are driven to the conclusion that he was wrong to rule in the way that he did, for the reasons given so ably by Mr Garrett. The existence of the minimum sentencing provisions given the ordinary rules of statutory interpretation, in our judgment, do not justify giving a qualified or restricted meaning to the word "firearm" in section 5(1A)(a). Had that been what Parliament intended, they would have said so. Parliament provided in section 57 of the Act a definition of a firearm. It is a definition for all purposes within the Act. It may be at odds with the everyday use of the word "firearm", but that is Parliament's privilege. We note, for example, that within section 57(1)(b) "any component part of such a lethal or prohibited weapon" also becomes a "firearm". A component part does not necessarily have a barrel. A component part is not necessarily capable of firing a missile. Yet, for the purposes of the Act, it is defined as a firearm.
19. We also note the use of the words "such a lethal or prohibited weapon" in subsection (57)(1)(b). It is absolutely plain to our mind that a distinction has been drawn between "such a lethal" and "prohibited weapon". Therefore, the words "such a lethal" must refer back to the words in the first three lines of section 57(1) and accordingly any component part of "such a lethal" means "any component part of a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged".
20. Similarly, following the same reasoning in subsection (a), the words "any prohibited weapon whether it is such a lethal weapon as aforesaid or not" must be taken to mean "any prohibited weapon, whether it is such a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged, as aforesaid or not." The use of the words "such" and "as aforesaid" in our view quite plainly indicate that the phrase relates back to the words "lethal barrelled weapon of any description from which any shot bullet or other missile can be discharged can be discharged". The words "lethal weapon" are shorthand for what appears in the first three lines of the section.
21. That means that we would adopt the interpretation put upon section 57(1) by Mr Garrett. It also means we accept his argument that the word "any" in this context is synonymous with "all". We do not agree with the submission that on this analysis the definition section is otiose. As Mr Garrett argued, the effect is that all prohibited weapons are firearms, but not all firearms are prohibited weapons. Prohibited weapons form but a small proportion of the firearms covered by the Act. It is necessary, therefore, to have a definition of firearms which covers the vast majority. Thus, we are forced to conclude, despite Mr Sharman's best efforts, that the Crown Prosecution Service must have their leave to appeal and the appeal must be allowed.
22. In our view the judge's ruling should have been that a stun gun disguised as a torch is capable of being a firearm within the meaning of the Act. We accordingly reverse the ruling of the learned judge. The proceedings will have to be resumed in the Crown Court because, on any view, there is the trial of the co-accused and there is the matter of the sentencing of the respondent. However, Mr Garrett has kindly obtained instructions from the Crown Prosecution Service to the effect that if we made any comment about the wisdom of pursuing the respondent in relation to count 1, the Crown Prosecution Service would abide by what we say. For our part, given the pleas of guilty that the respondent has entered to counts 2 and 3, and given the powers available to the sentencing judge, it would not be right, in these particular circumstances, for the trial on count 1 to proceed. Accordingly we are pleased to learn that the Crown Prosecution Service will be allowing the matter to lie upon the file.
23. For those reasons, leave to appeal is given and the appeal is allowed.
24. LADY JUSTICE HALLETT: I do not think we need reporting restrictions do we, Mr Garrett and Mr Sharman, certainly in relation to this respondent? It does not affect the co-accused, does it?
25. MR GARRETT: I do not see how it could affect the co-accused. It is a straightforward factual issue in her case.
26. LADY JUSTICE HALLETT: Very well, we do not need reporting restrictions. I should have said that I hope we did justice to the arguments in the time available.