England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
Her Honour Judge Kamill
T20107536

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/07/2012

Lord Justice Moses :

1. This appeal concerns an Italian Kimar model 85 starting pistol originally designed to fire blank cartridges. It was constructed with a solidly blocked dummy barrel. But part of its barrel had been removed by drilling, leaving a small section of the original blockage through which ran an off-centre hole with a diameter of approximately 2 mm. The top part of the hammer was broken off.
2. Mr Miller, a senior forensic scientist at the Metropolitan Police Service Forensic Firearms Unit, was, however, able to fire the starting pistol. He mounted it in a vice or clamp and loaded it with a specially selected lead pellet of 8.4 mm diameter. He used a mallet and punch to hammer that pellet through the muzzle tightly against the mouth of the hole within the barrel.
3. He then discharged that projectile by firstly loading an 8 mm calibre blank cartridge into the gun and then used a mallet and punch to strike the firing pin in order to discharge the blank cartridge. As a result of the partially unblocked barrel, high pressure gasses were expelled through the offset hole and thus the muzzle-loaded projectile was discharged. The projectile penetrated chamois leather and ballistic soap intended to simulate human skin and flesh. Mr Dyson, the firearms expert retained by the defence, did not dispute that by taking those elaborate steps the starting pistol would discharge the specially selected muzzle-loaded pellet and penetrate the simulated human skin and flesh.
4. By her ruling dated 1 March 2011, Her Honour Judge Kamill, at Snaresbrook Crown Court, ruled that the starting pistol was a prohibited firearm, possession of which was contrary to s.5(1)(aba) of the Firearms Act 1968. Following that ruling, the appellant pleaded guilty.
5. The appellant was undoubtedly in possession of the starting pistol. He had escaped from prison following a sentence for murder on 5 March 2001. He had been at large for about nine years. On 4 June 2010, when officers attempted to arrest him in Kent, he reached towards a cabinet and took hold of the starting pistol. He told the police officers that it was not a working firearm. A full court gave permission to appeal against conviction.
6. By s.5(1)(aba) a person commits an offence if he is in possession of:-

"any firearm which either has a barrel less than 30 cm in length or is less than 60 cm in length overall, other than an air weapon, a muzzle-loading gun or a firearm designed as signalling apparatus."

"Firearm" is defined in s.57(1) of the 1968 Act:

"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; and

(c) any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon".

7. Both experts accepted that the starting pistol was lethal because it could penetrate that which was commonly accepted to simulate human skin. The essential question was whether any shot, bullet or other missile could be discharged from the starting pistol when the only means of such a discharge was the elaborate technique deployed by the expert which we have already described.
8. The Crown's essential argument was that the pistol was capable of discharging a missile. The test was not whether the weapon could be fired easily or effectively but was merely whether it had the capacity to discharge a missile. The fact that it required expertise to discharge that missile was nothing to the point.
9. The first and essential question was that posed by the statute in the opening words to section 57(1). There being no dispute but that the starting pistol was a lethal-barrelled weapon, the statutory question was whether any shot, bullet or other missile could be discharged from it. This was the question which the judge in her ruling answered in the affirmative.
10. This argument was founded in part upon the decision of this Court in R v Law [1999] Crim LR 837. The charge in that case was brought under s.5(1)(a) which relates to:-

"(a) any firearm which is so designed or adapted that two or more missiles can be successfully discharged without repeated pressure on the trigger."

The weapon in issue had been designed to be used as a semi-automatic weapon but was modified (in so far as it is possible to follow the short summary) with the intention that it should not be capable of burst fire. However, it did remain capable of burst fire if used by an expert.

11. The Court rejected an argument that the prosecution had to prove that the firearm had been designed or adapted with the intention of being used as a semi-automatic weapon. As the commentary to the short report points out, the decision of the Court probably went further than it needed. The section requires no more than proof that the firearm was designed or adapted to be capable of burst fire; it does not require proof that it was, in fact, capable of burst fire. But the Court focussed on the firearm's capacity.
12. It is for that reason that the authority is significant in this appeal. The only statutory question is whether any shot, bullet or other missile could be discharged from the weapon. Law is authority for the proposition that the mere fact that a weapon's capacity to discharge a missile could only be demonstrated by an expert is irrelevant to whether the weapon falls within the statutory definition of firearm. (R v Pannell [1983] 76 Cr App R 53 also establishes that proposition: the ability of the carbines to fire automatically required an operation of some delicacy achieved only by an expert.)
13. Similar issues had arisen in R v Clarke [1985] 82 Cr App R 308. In that case, a sub-machine gun was found to be incomplete, without trigger, pivot pin or magazine. But it had been designed for fully-automatic fire only and could be operated by use of a piece of string tied across the "sear" (the catch keeping the hammer at full or half-cock) and around the trigger guard so that by applying tension to the string the gun could be operated.
14. The Court disapproved Jobling [1981] Crim L R 625 in which Taylor J ruled that it was insufficient to ask whether the weapon was originally designed to fire continuously; the question was whether it remained so. Relying on the decision of the Court of Appeal in Pannell the Court of Appeal in Clarke took the view that the words in s.5(1)(a) were descriptive of the kind of firearm which is prohibited rather than descriptive of an individual weapon at the very time the accused was alleged to have been in possession of it (313). But it acknowledged that a weapon might become so damaged or altered, by accident or design or by the removal of so many components, that it could no longer fairly be described as a "weapon" (313). Alternatively, the gun, even after the trigger, pivot pin and magazine had been removed, was a component part of a prohibited weapon (313-314).
15. The question in the instant appeal is not whether the gun was designed or adapted to discharge a shot, bullet or other missile, as in Law, Clarke, Jobling and Pannell but whether it had the capacity to do so. Those cases are of significance in that they teach that the mere fact that only an expert could discharge a missile from the starting pistol does not mean that it did not have the capacity to discharge a missile and thus did not remove it from the scope of the definition in section 57(1).
16. Although s.57(1) uses the present tense, "can be discharged", a weapon may fall within the definition in s.57(1) despite some temporary fault at the time it is in the possession of the accused. Even Taylor J in Jobling acknowledged that a mere temporary fault would not preclude the weapon from the prohibition. So did Eveleigh LJ in Pannell (cited in Clarke at 313). The very notion of the capacity of a weapon must refer not only to its condition at the time of possession but to its construction and its potential as a means of discharging a missile. But once it is recognised that a gun might fall within the definition of firearm, even if its condition at the time renders it incapable of firing, the question arises as to the extent to which it is permissible to look to possible alterations to the gun from the condition in which it is found in the possession of the accused. If a minor repair is all that is needed, the gun is a firearm. But what if it needs a major conversion, adaptation or repair before it can discharge a missile?
17. This is an issue previously considered by the courts. In Cafferata v Wilson [1936] 3 All ER 149, the Divisional Court, on an appeal by way of Case Stated, decided that a dummy revolver which was not capable of firing a bullet or other missile was a firearm within the meaning of s.12(1) of the Firearms Act 1920 or, alternatively, all the parts of the dummy other than the solid barrel were parts of a firearm. The dummy shared the characteristics of the starting pistol in the instant appeal in that there was a vent hole for the escape of gas but, in contrast, no hole had been drilled such as to permit the discharge of a missile. Lord Hewart CJ said, in his brief judgment:-

"The magistrate has held that the article as a whole is part of a firearm within the meaning of the definition. That is quite a tenable proposition. If something had had to be added to the dummy to make it into a complete revolver, the dummy might be said to be part of a revolver. It seems to make no difference that the decisive part was not to be in addition, but an adaptation of what was already there. It is easier to support the decision from another point of view. The dummy contains everything else necessary for making a revolver except the barrel, and therefore all the other parts of it except those which require to be bored are 'parts thereof' within the meaning of the section. The magistrate has not misdirected himself and the appeal must be dismissed."

18. The principle which appears to have been identified in Cafferata is that a dummy pistol capable of adaptation, in that case by boring the barrel, is either a firearm or is part of a firearm within the meaning of the predecessor to s.57(1).
19. That principle was followed in R v Freeman [1970] 54 Cr App 251. A .38 starting pistol with a revolving chamber had constrictions in the front ends of the firing chambers and a solid barrel. But those obstructions could readily be removed by drilling, whereafter the revolver would be capable of firing bulleted ammunition with lethal force (page 253). The Court traced the successors to the Firearms Act 1920, and the relevant statutory provision at the time of Cafferata. It concluded that the Firearms Acts of 1937 and 1968 re-enacted, in slightly different language, the provisions of the 1920 Act. The Court applied the principle that the 1937 and 1968 Acts should be deemed to be enacted by legislature acquainted with the actual state of the law and the practice of the courts at the date when they were passed (page 255). Applying that principle the Court concluded that the 1937 and 1968 Acts embodied the principle in Cafferata into the law. Sachs LJ said:-

"It would indeed be unfortunate if an object, which by the use of an electrical drill of a type that can be bought at almost any general store in any High Street can be so easily adapted into a lethal weapon, should not come within s.1(1) of the Act (the 1968 Act)."

The Court added that it would be a question of fact and degree whether the subject matter of a charge fell within the ambit of the Act but warned that the intention of the manufacturer of the subject matter of the charge was irrelevant to the issue which the jury had to try (referring to Read v Donovan [1947] KB 327, the case of a signal pistol (256-257)).

20. If this Court is compelled to apply Freeman then there is no escape from the conclusion that the gun in the instant case fell within the meaning of firearm and thus within s.5(1)(aba). It profits the appellant nothing to refer to the trenchant criticism expressed by the Lord Justice-General in Kelly v MacKinnon [1982] SCCR 205. The Scottish Court declined to follow Cafferata; the fact that the replica Colt revolvers could be easily converted into a firearm did not bring the weapon within the meaning of s.57(1) of the 1968 Act. That section poses the statutory question whether a firearm is a weapon which "can be discharged", not whether it could, on adaptation, be discharged in the future. The Lord Justice-General took the view that whether it would be easy or difficult to convert an article, not itself capable of discharging a bullet or missile, is "quite irrelevant" (212).
21. Nor could the unconverted replica be regarded as a component part of "such a lethal…weapon". S.57(1)(b) required the part in issue to be a component part of a lethal weapon from which any shot, bullet or other missile can be discharged and not a component part of something which, when completed, would become a lethal weapon (page 208). Lord Cameron also referred to a provision of the Firearms (Amendment) Act 1936 which was, as he put it, "completely ignored" by the Court in Cafferata, namely, s.9(2), now re-enacted as s.4(3) of the 1968 Act. That sub-section makes it an offence for a person other than a registered firearms dealer to convert into a firearm anything which, though having the appearance of being a firearm, is so constructed as to be incapable of discharging any missile through its barrel. The plain corollary, as Lord Cameron put it, is that if an article is constructed as to be incapable of discharging any missile, then it does not fall within the definition of a firearm in s.57(1), even if it could be constructed so as to be capable of discharging any missile (216 and see 213).
22. However compelling this reasoning, it is not open to this Court to apply it unless the statutory scheme is different from that which was in force at the time of those decisions.
23. Since the Firearms Act 1968 came into force, the Firearms Act 1982 has widened the scope of the 1968 Act to embrace imitation firearms readily convertible into firearms to which s.1 of the 1968 Act applies. Section 1 of the Firearms Act 1968, which imposes the requirement of a firearms certificate, applies to every firearm except shotguns as defined (s.1(3)) and those air weapons which fall outwith rules made by the Secretary of State (s.1(3)). Section 1 of the 1982 Act includes within the scope of the 1968 Act, subject to specific exclusions (such as ss.4(3)and(4) of the 1968 Act) imitation firearms if they have the appearance of a firearm to which s.1 of the 1968 Act applies and are so constructed or adapted as to be readily convertible into a firearm to which s.1 applies (s.1(1) of the 1982 Act). Whether an imitation firearm is readily convertible must be ascertained by reference to section 1(6) of the 1982 Act:-

"For the purposes of this section an imitation firearm shall be regarded as readily convertible into a firearm to which s.1 of the 1968 Act applies if –

(a) it can be so converted without any special skill on the part of the person converting it in the construction or adaptation of firearms of any description; and

(b) the work involved in converting does not require equipment tools other than such as are in common use by persons carrying out works of construction and maintenance in their own homes."

24. The 1982 Act also provides that it is a defence for an accused to show that he did not know and had no reason to suspect that an imitation firearm could be readily convertible into a firearm to which s.1 of the 1968 Act applies (s.1(5)). An imitation firearm is defined by reference to s.57(4) of the 1968 Act (s.1(3) of the 1982 Act):-

"'Imitation firearm' means anything which has the appearance of being a firearm (other than such a weapon as is mentioned in s.5(1)(b) of this Act) whether or not it is capable of discharging any shot, bullet or other missile."

25. The question then arises as to whether the addition of imitation firearms readily convertible into firearms to the scope of the 1968 Act changes the meaning of firearm in section 57(1) as interpreted by this Court in Freeman. Section 57(1) was unaltered. Is it to be construed as including a gun which could be easily turned into a lethal-barrelled weapon (as Sachs LJ thought in Freeman) or is that section now to be interpreted in the light of the Firearms Act 1982? Strictly, the 1982 Act does not directly amend the Firearms Act 1968. But it seems to us that it is to be regarded as an Act which amends the 1968 Act by enlarging its reach to those imitation firearms which fall within the provisions of s.1(1) of the 1982 Act.
26. As we have recalled, s.57(1) of the 1968 Act was not amended. Where a statute is amended, those parts which were unamended are to be construed as meaning what they did before, unless the contrary intention appears (see Bennion on Statutory Interpretation 5^th Ed. section 78). But Bennion does suggest that where a later Act covers the same material as an earlier Act, the provisions of the later Act may be used to aid the construction of the earlier Act. Both Acts may be regarded as a single code. But whether those later provisions alter the meaning of the earlier, the test is whether Parliament intended to effect such an alteration (section 234). Bennion cites Blackburne J in R (ex p. Morgan Grenfell) v Special Commissioner [2003] 1 AC 563 at 592:-

"We question why, in a code such as this, (tax legislation) which Parliament has from time to time amended, it should be impermissible when determining what…the true scope was of that provision, to consider what Parliament's intention was by reference to other provisions of the code. We see no reason why, in a case such as this, the court's gaze must be confined to legislation as it existed at some much earlier date. Each amendment accrues to a text conveying an evolving but at each stage ascertainable intent…"

27. We should apply that principle in the instant case. It is plain that Parliament intended to widen the scope of the meaning of firearm to include an imitation firearm falling within s.1(1) of the 1982 Act. But it is equally plain that Parliament intended only to widen that description in cases where the conversion could be achieved without any special skill and without the use of equipment or tools other than those in common use. By imposing what could loosely be described as safeguards, Parliament clearly expressed the intention to exclude from the application of the 1968 Act imitation firearms which could not be readily convertible into a firearm by equipment or tools which were not in common use.
28. Accordingly, the principle identified in Freeman is, under the current statutory scheme, no longer of any application. If the item can be easily adapted into a lethal weapon, to adopt Sachs LJ's words (at 256), with the use of equipment described in s.1(6) of the 1982 Act, then it will, subject to the statutory defence, fall within the 1968 Act. But no conclusion can be reached as to whether an imitation firearm is readily convertible without proper consideration of s.1(6) and, if it is raised, the defence in s.1(5). Those sub-sections raise questions of fact which must be resolved. Whether an item falls within s.57(1) should no longer be answered by reference to Freeman or to Cafferata. Courts should look to the 1982 Act read with the 1968 Act. It would be absurd to allow the prosecution to sidestep the safeguards within the 1982 Act merely by construing firearm as meaning an item which could "easily" be converted into a lethal-barrelled weapon, capable of discharging a missile, in the application of the principle in Freeman.
29. But Mr Temple, on behalf of the prosecution, argued that issues of conversion and adaptation had no relevance in the instant case. The process of clamping, the use of the mallet and punch to drive the pellet home, were not acts of conversion or adaptation of the pistol. Despite the need to use those implements, the starting pistol was itself a lethal-barrelled weapon from which any shot, bullet or missile could be discharged.
30. It seems to us that reading the 1968 Act in the context of the Firearms Act 1982 also assists in understanding what is meant by conversion. The words in s.1(1)(b) "readily convertible into a firearm" are sufficiently broad to include the use of equipment or tools in conjunction with the use of an imitation firearm in a way which enables it to be used to discharge a missile as much as if those tools are used permanently to alter its construction. There is no reason to restrict the application of the Firearms Act 1982 to a conversion which permanently alters the construction of the imitation firearm in question. The 1982 Act contemplates converting an item from which a missile cannot be discharged into one from which a missile can be discharged. It matters not whether that process involves the permanent alteration of the construction of the firearm such as by drilling or by some other more temporary means. An item may be converted not merely by changing its capacity or by altering its construction, but also by adapting the way it can be used.
31. The starting pistol could only discharge a missile with the aid of other implements external to the weapon itself. It required the use of a vice to hold it, a hammer and a punch thin enough to be inserted into the off-centre hole running through the part of the barrel that was blocked, with a diameter of approximately 2 mm. The specially selected pellet could only be discharged if it was rammed home with a mallet and punch to ensure as tight a fit as possible. The use of those extraneous tools was a process of conversion. For the reasons we have given, after the 1982 Act came into force, s.57(1) refers to the capacity of the weapon without regard to its potential conversion, unless that conversion falls within the scope of the 1982 Act. We reject the prosecution contention that the use of the vice to clamp the pistol and the mallet and punch to ram the pellet home did not constitute conversion of the starting pistol.
32. Once we exclude consideration of any conversion, we must acknowledge that the starting pistol itself had no capacity to discharge any shot, bullet or other missile. A missile could only be discharged from the barrel in combination with other pieces of equipment, namely, the vice with which the pistol could be clamped, the punch and the mallet. There is no warrant for including within the definition in s.57(1) an item which can only discharge a missile in combination with other tools extraneous to that item. The opening words of s.57(1) refer to the capacity of a particular item and not its capacity in combination with other pieces of equipment
33. For those reasons we would conclude that the starting pistol fell outwith the definition in s.57(1). It was not a lethal-barrelled weapon from which any shot, bullet or other missile can be discharged. It was plainly an imitation firearm within the meaning of s.57(4). Whether it fell within the scope of the 1982 Act cannot be determined in this appeal. No facts were advanced to show that the starting pistol could be readily converted in accordance with the provisions of s.1(1)(b) and s1(6) of the 1982 Act. No opportunity was given for the accused to put forward the defence in s.1(5) of that Act.
34. The question then arises as to whether the starting pistol could be regarded as a component part of "such a lethal or prohibited weapon". The Divisional Court in Cafferata would, no doubt, have concluded that it could be so regarded. That seems to us to be an impossible construction of s.57(1)(b). The definition of firearm cannot include a component part of a lethal-barrelled weapon of any description from which any shot, bullet or other missile can not be discharged. Any other construction would ignore the use of the word "such". If the starting pistol does not fall within the definition of firearm within s.57(1), no part of it could do so. The Lord Justice-General in Kelly v McKinnon said that the proposition that all parts of the dummy which did not require to be bored should be regarded as parts of a lethal weapon was "untenable" (page 210). We agree. We do not think that Cafferata accurately expresses the law.
35. We can underline this conclusion by reference to the missing hammer. If the only reason that the starting pistol could not discharge a missile was the absence of the hammer, then it was plainly a firearm. Absent the hammer, a suitably sized "ball peen" hammer could be used to strike the firing pin. If, contrary to our conclusion, a missile could be discharged from the starting pistol if the hammer had been present, then its absence would merely lead to the conclusion that the remaining parts of the pistol were component parts of a lethal or prohibited weapon as defined.
36. Our conclusion obviates the need to decide whether the judge was correct to withdraw the matter from the jury. Since the case was never advanced by deploying the provisions of the 1982 Act and it was never alleged that the firearm was an imitation firearm readily convertible for the purposes of the 1982 Act, the correct conclusion is that the conviction should be quashed. Mr Temple rightly observed that the language of s.57(1) of the 1968 Act was widely drawn for what he described as "public policy reasons". It is clearly highly undesirable that starting pistols such as these should be used by someone, such as this accused, on the run from the police. But such considerations should not override the true construction of the 1968 Act when read with the 1982 Act. Nor should we overlook provisions in the 1968 Act dealing with imitation firearms, as defined in s.57(4), without any need to have recourse to the 1982 Act. There are specific sections which deal with possession of imitation firearms, such as s.16A, s.17, and section 18. Section 17 would have been particularly apt in this case. It creates an offence to attempt to make any use whatever of an imitation firearm with the intent to resist or prevent lawful arrest or detention. It would have avoided the complicated issues to which this appeal gives rise. For the reasons we have given, the appeal is allowed and the conviction is quashed.
37. The appellant also seeks permission to appeal against a sentence of two years, passed consecutively to the five-year sentence in respect of the conviction for possession of a firearm. We give permission to appeal against that sentence.
38. The appellant was convicted of murder 31 years before he was sentenced. His tariff was one of 15 years. In the 1980s he progressed through the prison system and was placed, eventually, in an open prison. He walked out and was away for 12-18 months before being returned to closed conditions for 4 years. He was then allowed to return to an open prison but left and disappeared for some 9 years. He did not come to the attention of the police during that period of 9 years.
39. According to his landlady, he had lived quietly and had helped her positively, and others.
40. The judge was plainly right to have in mind that there were two occasions, of which this escape was the second, when the appellant walked out of prison. But he had suffered for that since he had returned to closed conditions and his parole would have been delayed. We think, now that the conviction for the firearms offence has been quashed, that a sentence of 2 years' imprisonment for escape from lawful custody was manifestly excessive and a sentence of 18 months' imprisonment should be substituted. As our judgment makes clear, the appellant was, perhaps, fortunate not to be charged with an offence of using an imitation firearm. But we think it wrong that any sentence should reflect that fact. In those circumstances, the appeal against sentence is allowed, the sentence of 2 years quashed, and substituted by a sentence of 18 months' imprisonment.