England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		2 August 2012

LORD JUSTICE GROSS: I shall ask Mr Justice Sweeney to give the judgment of the court.

MR JUSTICE SWEENEY:

1. This is a renewed application for leave to appeal against a conviction for possession of a prohibited firearm, contrary to section 5(1)(aba) of the Firearms Act 1968. We grant leave.
2. The background is as follows. On 14 February 2012 following a trial in the Crown Court at Croydon before Mr Recorder Trimmer and a jury, the appellant, who is aged 18, was convicted of the prohibited firearm offence (count 1) and of two offences of possession of a controlled drug of Class A with intent to supply (counts 2 and 3). The following day he was sentenced to five years' detention in a young offender institution on count 1, and to concurrent terms of eighteen months' detention on counts 2 and 3. The period of 102 days spent in custody on remand was ordered to count towards the total sentence which was thus one of five years' detention in a young offender institution.
3. The pistol the subject of count 1, which was found at the appellant's home address in September 2011, was described by the prosecution as being a "converted BBM GAP blank-firing pistol and detachable magazine". Its size was such as to bring it within the definition of a prohibited weapon, provided that, in the terms of section 57(1) of the Firearms Act 1968, it was a firearm or any component part thereof in the sense that any shot, bullet or other missile could be discharged from it.
4. As to that capability, the prosecution relied upon the evidence of a forensic scientist who said that work done to the pistol rendered it incapable of firing anything in a conventional manner, but that if it was dismantled and the frame and barrel put in a clamp, and then a modified 8mm cartridge was placed in the barrel, and then, as experiments had shown, if the cartridge was struck by a hammer and punch, a projectile could be discharge. Therefore the pistol was, in the expert's opinion, a component part of a firearm in the sense that the barrel and frame performed the relevant function, and thus it was suggested that the pistol was a prohibited weapon.
5. In contrast, an expert for the defence gave evidence that, whilst the pistol was an imitation firearm for the purposes of section 57(4) of the Firearms Act 1968, it was neither a firearm, nor a component part of a firearm within section 51 of that Act because in its converted state it could never have worked. Nor, in the expert's view, was the barrel and frame the component part of a firearm either, as the modified cartridge and projectile used in the prosecution experiment allowed pressure to escape, whereas the barrel and frame would have been unable to withstand the tremendous pressures involved in use as a conventional gun. In all those circumstances it was, the defence expert concluded, questionable whether the barrel performed any function at all.
6. The issues for the jury on count 1 were: (1) whether the appellant was in possession of the gun; (2) whether it was a prohibited weapon (which was a relatively straightforward question given the undisputed dimensions of the pistol); and (3) whether it was a firearm, which was the vital issue in relation to the nature of the pistol and concentrated on the question of whether it was proved that the barrel and frame was a component part of a firearm, as defined. The Recorder summed up the issues in accordance with the then accepted construction of the Firearms Act.
7. However, on 6 July 2012 this court, differently constituted, in R v Bewley [2012] EWCA Crim 1457, reviewed the proper construction of the relevant aspects of the Firearms Act 1968 in the light of the subsequent Firearms Act 1982. In consequence of the conclusions of the court in that case, the respondent in this case, rightly in our view, makes the following concessions: (1) given that the converted blank-firing pistol in this case had no capacity itself to discharge any shot, bullet or other missile, and required other tools extraneous to itself in order to do so, it actually fell outwith the definition of a firearm as set out in section 57(1) of the 1968 Act (see Bewley at paragraphs 32 and 33); (2) accordingly, no component part of the blank-firing pistol could fall within the definition of section 51 (see Bewley at paragraph 34). Therefore, and again rightly in our view, the respondent has not sought to uphold the conviction on count 1. The reality is, on the particular facts of this case, that the pistol in question was incapable in law of being a firearm or component part thereof.
8. In those circumstances we allow the appeal on count 1 and quash the conviction accordingly. The convictions on counts 2 and 3 remain, as do the sentences imposed in relation to them. The days spent in custody on remand will continue to count towards the service of those concurrent sentences. To that extent this appeal is allowed.

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