England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		11th December 2014

1. MR JUSTICE OPENSHAW: On 21st July 2014 in the Crown Court Bolton, after a trial before His Honour Judge Knopf and a jury, the applicant was convicted on count 4 of the indictment of possessing a prohibited firearm, namely a Ruger five shot .38 revolver, contrary to section 5(1)(aba) of the Firearms Act 1968. He was later sentenced to 3 years' imprisonment. An order was made under section 52(1) of the Act for the forfeiture and disposal of the weapon. The Registrar has referred his application for leave to appeal against conviction to the Full Court and we grant leave. We add for the sake of completeness that both the appellant (as he now is) and the co-accused were acquitted by the jury of the charges as laid in counts 1 and 3.
2. The facts are as follows. The appellant had a certificate authorising him to possess firearms since 2000. He has been a registered firearms dealer since 2005. In April 2008 the appellant learned that another registered firearms dealer, whom he knew, a Mr Kay, had a Ruger five shot .38 revolver for sale. The appellant wished to buy the revolver to dispatch deer humanly if they had been shot but not killed by rifle fire. Accordingly, he applied to the Greater Manchester Police for a variation to his firearms certificate to authorise him to possess such a weapon. The variation was granted in these terms: that the point .38 pistol "shall be used for destruction of injured deer in the course of stalking and the gun's shot shall be restricted to two shots only". Accordingly, Mr Kay restricted the gun by inserting three machine fitted steel rods into three of the chambers which were fixed in place using an expoxy adhesive. This effectively restricted the gun to being a two shot revolver so as to comply with the conditions in the certificate.
3. Mr Kay gave evidence that the steel rods that he had fitted could only have been removed using a high quality drill and by a person possessing some degree of skill. The revolver was then bought by the appellant who took possession of it.
4. By section 1(1)A of the Firearms Act 1968:

"Subject to any exemption under this Act, it is an offence for a person—

(a)to have in his possession, or to purchase or acquire, a firearm to which this section applies without holding a firearm certificate in force at the time, or otherwise than as authorised by such a certificate...

(2)It is an offence for a person to fail to comply with a condition subject to which a firearm certificate is held by him."

5. By section 5(1)(aba) of the Act:

"A person commits an offence if, but without authority he has in his possession or purchases or acquires ... any firearm which either has a barrel of less than 30 centimetres in length or is less than 60 metres in length overall ..."

Since the barrell length of the Ruger revolver was less than 30 centimetres this was a prohibited weapon.

An exemption is provided by section 3 of the Firearms (Amendment) Act 1997 which reads as follows:

"The authority of the Secretary of State ... is not required by virtue of subsection (1)(aba) of section 5 of the 1968 Act for a person to have in his possession, or to purchase or acquire, or to sell or transfer, a firearm if he is authorised by a firearm certificate to have the firearm in his possession, or to purchase or acquire it, subject to a condition that it is only for use in connection with the humane killing of animals."

Therefore, the possession of the revolver by the applicant with the inserts in three of the chambers so as to render it restricted to two shots only was authorised by a firearms certificate, subject to a condition that it was only for use with human killing of animals. Therefore, his possession came within the exemption of section 3 of the Firearms (Amendment) Act 1997, therefore it was no longer a prohibited weapon and his possession of the weapon in that state was not an offence.

6. In 2011, in the course of an investigation into another matter, the police seized the revolver from the applicant. They found that the inserts which Mr Kay had put in the three chambers had been removed and replaced with steel plugs crudely machined by an angle grinder and kept in place by something similar to putty or Bluetac. The prosecution firearms' expert said that these three chambers could not immediately take a round and be fired but these plugs were easily removed by just poking them out so that the gun could very easily and indeed very quickly be adapted and loaded and fired in each of the three chambers.
7. The defendant made no response to questions asked in interview. The inference therefore could properly be drawn either that he had done the work of altering the gun himself or that he had commissioned someone else to do it but he gave no explanation as to why he had done the work or why he had had it done.
8. The defence submitted that there was no case to answer. They made two points. First, they argued that nothing in the condition of the firearms certificate specified that a restriction in the chamber must be permanent or difficult to remove. They contended that these plugs were a sufficient restriction to meet the condition in the firearms certificate and therefore no offence was committed. Secondly, they argue that since the defendant was authorised to possess that Ruger revolver by his firearms certificate, breach of the conditions of that certificate may render him liable to the summary offence of failing to comply with that condition contrary to section 1(2) of the Firearms Act, but did not take the weapon outside the exemption provided by section 3 of the Firearms (Amendment) Act 1997 and therefore it was not and had not become a prohibited weapon.
9. In response the Crown argued the fundamental nature of the gun had changed. The new inserts were temporary in nature and as a matter of common sense were insufficient to meet the requirements of the appellant's permission to hold the gun. The judge ruled that there was a case to answer. He ruled that it was for the jury to consider the evidence and to reflect upon the contrast between the obstructions said to have been inserted by Mr Kay and those found by the the police. The trial therefore proceeded.
10. The appellant did not give evidence, so he still gave no explanation as to who had done the work, when it had been done, or still less why it had been done. The defence expert gave evidence that the three chambers were restricted and therefore, in his opinion, the conditions of the firearms certificate were complied with. The judge left it to the jury to decide whether the obstruction of the chambers as found by the police amounted to a restriction and thus complied with the terms of the certificate issued to the appellant or whether the nature of the change took the weapon outside the ambit of the certificate so as to make it a prohibited weapon. The jury convicted him.
11. The appellant now repeats before us that the two points made before the trial judge. First, it is argued that since there is no basis in law or practice or custom as to how restrictions in a revolver are to be made, and since both experts agree that a round could not immediately be fired from any of the three cylinders restricted as they were by the plugs in the chambers, the judge was wrong in law to leave count 4 to the jury and he misdirect them as to necessary requirement for a conviction under count 4.
12. The question is whether the obstruction or restriction in these three chambers did amount to a restriction of the gun to two chambers as required by the certificate. The policy of the Firearms Act is obviously to regulate possession of all firearms but to exercise especial care in the possession and use of prohibited weapons, the misuse of which presents a particular danger to the public. If the appellant's arguments are right, any restriction in the chamber of any kind, however insubstantial, however transient and however easily removed would suffice. This cannot be right. It seems to us whether any plug or restriction in the barrel amounts to a restriction so as to satisfy the condition of the firearms certificate is necessarily a question of fact and degree depending on all the circumstances of the case. Whether or not the evidence is capable of leading to a finding that it does not is a question of law. Since the evidence here was plainly capable of leading to such a conclusion, the judge was right to find that there was a case to answer. He left the matter fairly and squarely to the jury and they decided that plugs inserted in the chamber did not comply to the conditions of the certificate. That decision seems to us to be plainly right. Therefore, that point fails.
13. The appellant however maintains that he was still permitted by his firearms certificate to possess this particular revolver and therefore he was still covered by the exemption in section 3 of the Firearms (Amendment) Act 1997. The exemption applies to a person having in his possession "a firearm if he is authorised by a firearms certificate to have the firearm in his possession" for use in connection with the humane killing of animals. But it seems to us that in order to come within the exemption provided by that section the possession of the firearm must be in accordance with the firearms certificate and the conditions imposed by that certificate. There is, we think, an important distinction to be drawn between conditions that relate to the nature and functioning of the firearm itself and to other conditions relating, for example, to the use or secure storage of the firearm. It is not the breach of every condition upon the certificate that will render a firearm a prohibited weapon.
14. Here, the firearm itself had been so altered that it no longer complied with the conditions of the firearms certificate. Therefore, his possession of the firearm, as altered, was not in accordance with the firearms certificate, therefore he is no longer within the exemption. Therefore, by the alteration effected this was now a prohibited weapon. Accordingly, we reject the appellant's second argument as well.
15. Accordingly, the conviction is safe and the appeal is dismissed.
16. MR DOHERTY: My Lord, may I have a little time to consider whether one might invite the court to certify a point of public importance?
17. PRESIDENT OF THE QUEEN'S BENCH DIVISION: You may.
18. MR DOHERTY: I need to consider the judgment.
19. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Fourteen days after judgment has been perfected serve it on the prosecution, exchange e-mails, copy the court in and we will then consider it.
20. MR DOHERTY: I am very grateful my Lord.