England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGS LYNN
HIS HONOUR PETER JACOBS SITTING AS A DEPUTY CIRCUIT JUDGE
T20147279

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/04/2016

Lord Justice Treacy:

1. On 27 May 2015 the appellant was convicted in the Crown Court sitting at Kings Lynn of possessing a prohibited firearm contrary to section 5(1)(aba) of the Firearms Act 1968. He was subsequently sentenced to 5 years imprisonment. He appeals against conviction with the leave of the single judge.
2. The appellant was a director of a company which specialised in the sale of decommissioned weapons and which provided weapons to the film and television industry. On 14 August 2014 a warrant was executed at both his home and business addresses. A replica of a WWII German MP40 sub-machine gun with a barrel of less than 30 centimetres was seized along with other weapons which did not contravene firearms legislation. The replica had been manufactured by the Model Gun Company of Japan and had originally been manufactured to fire caps.
3. The Crown's case was that the replica had been converted to be capable of firing live ammunition and that it was a firearm pursuant to section 57 of the Firearms Act 1968. The removal of a steel bolt from the front of the chamber to enable the replica to fire live rounds had been a simple task achievable in 20 to 30 seconds. The replica was not prevented from being a firearm by the insertion of the bolt. It was agreed that the replica had been manufactured as such and was not at that stage a "real" firearm. It had, however, at some stage been converted to become "a top venting blank firer" and, because of the design of that conversion it became easy to enable the item to fire live rounds.
4. The defence case was that the replica was, as seized, incapable of discharging a shot, bullet or other missile so that it was not a firearm. The replica was an imitation firearm that was readily convertible into a firearm. The appellant did not give evidence, but in interview he had stated that he was unaware of the ease with which the replica could be converted to fire live ammunition. He had not undertaken or commissioned the modifications to the replica. The defence contention was that the item fell within the provisions of the Firearms Act 1982 which apply to imitation firearms, and that, by reason of section 1(5) of that Act, the appellant had a defence by showing that he did not know, and had no reason to suspect, that the imitation firearm was so constructed or adapted as to be readily convertible in to a firearm to which section 1 of the 1968 Act applied.
5. Mr Horne, a firearms expert, gave evidence for the Crown that the replica as originally assembled had not been easy to convert as it was comprised of inferior components. Originally the barrel had been blocked off and had been solid. The replica had had its original components substituted with properly machined components by somebody with knowledge and skill. An imitation bolt had been replaced with a genuine bolt; a genuine firing pin had been fitted; a steel chamber had been installed; a hole had been drilled through the chamber and what remained of the barrel to enable the replica to fire live ammunition. The replica had been test fired using gel which had simulated human flesh and it had penetrated the gel by, in some instances, over 14 inches. A temporary steel bolt had been screwed into a threaded hole in the steel chamber. That had disabled the weapon but it could be removed easily. The effect of this was that the steel chamber had been turned into a short barrel. It was conceded that vent holes had made the replica less efficient, but that had not altered the nature of the weapon. The conversion had been permanent, had changed the nature of the replica and it had been capable of discharging live ammunition.
6. Another expert, Mr Dyson, said that in his opinion the replica had not been a firearm when seized. It was not capable of firing or discharging any bullet or missile. It was an imitation firearm constructed to be readily convertible into a firearm. In order to do that the steel threaded bolt had to be removed. He acknowledged that the conversion work carried out had been skilled.
7. The issue as left to the jury was whether they could be sure that, since so little needed to be done to enable the replica to fire missiles, it was a firearm within the definition of section 57(1) of the 1968 Act. In other words the question was whether it was "a lethal barrelled weapon from which any shot, bullet or other missile can be discharged". It was agreed that the barrel was less than 30 centimetres in length.
8. Section 5(1)(aba) of the Firearms Act 1968 provides:

"A person commits an offence if, without authority, he has in his possession…any firearm which…has a barrel less than 30 centimetres in length…other than an air weapon, a muzzle loading gun or a firearm designed as a signalling apparatus;…"

9. Section 57(1) of the 1968 Act 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 lethal weapon, whether it is such a lethal weapon as aforesaid or not;…"

10. Section 57(4) provides:

"In this Act– "imitation firearm" means any thing which has the appearance of being a firearm (other than such a weapon as is mentioned in section 5(1)(b) of this Act) whether or not it is capable of discharging any shot, bullet or other missile;…"

11. Section 1 of the Firearms Act 1982 is concerned with control of imitation firearms readily convertible into firearms to which section 1 of the 1968 Act applies. Section 1(1) and (2) provide:

"(1) This Act applies to an imitation firearm if–

(a) it has the appearance of being a firearm to which section 1 of the 1968 Act…applies; and

(b) it is so constructed or adapted as to be readily convertible into a firearm to which that section applies.

(2) Subject to section 2(2) of this Act and the following provisions of this section, the 1968 Act shall apply in relation to an imitation firearm to which this Act applies as it applies in relation to a firearm to which section 1 of that Act applies."

12. Section 1(5) and (6) provide:

"(5) In any proceedings brought by virtue of this section as an offence under the 1968 Act involving an imitation firearm to which this Act applies, it shall be a defence for the accused to show that he did not know and had no reason to suspect that the imitation firearm was so constructed or adapted as to be readily convertible into a firearm to which section 1 of that Act applies.

(6) For the purposes of this section an imitation firearm shall be regarded as readily convertible into a firearm to which section 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 it does not require equipment or tools other than such as are in common use by persons carrying out works of construction and maintenance in their own homes."

13. During the trial the appellant had submitted that an offence based on or contrary to section 1 of the 1982 Act should be added to the indictment. This would have the effect of permitting evidence to be called in support of the defence provided by section 1(5) of that Act. The Crown declined to do so stating that the offence under section 5 of the 1968 Act was one of strict liability; the conversion work had transformed what had originally been a replica into a firearm so that the issue of ease of conversion under section 1 of the 1982 Act was irrelevant. The readily removable bolt merely disabled an item which was a firearm. Whilst the appellant had relied on R v Bewley [2012] 2 Cr App R 27, which considered the effect upon section 57 of the 1968 Act by the enactment of the 1982 Act, this appellant was not in an identical position to that identified in Bewley. In that case the firearm involved could only be fired in very unusual conditions, namely by mounting it in a vice or clamp, using a special pellet, mounting the gun in a vice and hitting it with a mallet and punch.
14. The judge in ruling noted that the Crown alleged that the item was a firearm and not an imitation firearm. The definition of a firearm was set out at section 57 of the 1968 Act and Bewley had not altered it. The Crown's expert had demonstrated that the item could be fired. What the item had originally been manufactured as was irrelevant; what was relevant was what it was capable of when seized. It appeared to the judge that the item did not require adaptation but merely the removal of a temporary disablement. He would, however, leave the matter to the jury.
15. The grounds of appeal are that:

(a) The judge incorrectly ruled that the 1982 Act did not apply to this case.

(b) The judge improperly withdrew the issue of fact from the jury as to whether the item in question might be an imitation firearm within the 1982 Act and thus potentially deprived the appellant of the defence available under section 1(5) of that Act.

(c) The directions to the jury as to whether the item was an imitation firearm, or in fact a firearm, were unbalanced. The judge had made clear his views that it had already been converted into a firearm.

(d) In answer to a question from the jury the judge may have caused confusion.

16. When the judge summed up he put to the jury the conflicting positions of the two experts, one of whom said that the gun was a firearm capable of being fired after removal of the steel bolt, and the other who said it was an imitation firearm which was readily convertible into a firearm by removal of the steel bolt. He also put the conflicting contentions of counsel representing those two positions. The defence contention was that the item had never been converted since it had started off life as an imitation weapon and the steel bolt remained in place. The prosecution said that the item had been converted, it was capable of being fired, and the steel bolt was akin to "an elaborate safety catch".
17. After retirement the jury asked for copies of the 1968 and 1982 Acts. The judge declined to provide them with those Acts but he reminded them of the definition of a firearm in section 57 of the 1968 Act and, at defence counsel's invitation, of the terms of section 1(6) of the 1982 Act. He again put to the jury the rival contentions of the parties as already summarised above.
18. The oral submissions to us largely mirrored the positions taken before the judge. Mr Doherty stressed that the item had started life as a toy gun and that it still had that appearance externally. He submitted that since the item had the appearance of being a firearm it satisfied the definition of an imitation fireman for the purposes of section 57(4) of the 1968 Act. He urged that the 1982 legislation should apply to it since it was an item readily convertible without the use of specialist knowledge or tools. Accordingly, Mr Heddell should have had the opportunity of relying on the defence provided by section 1(5) of the 1982 Act.
19. Mr Doherty acknowledged that it was a question of fact for the jury as to whether the item was to be classified as a firearm or as an imitation firearm but asserted that that issue had been withdrawn from the jury. He urged that the Crown's position to the effect that this was not an imitation but was in fact a firearm usurped the function of the jury. He relied on Bewley at [28] where Moses LJ said:

"Accordingly, the principle identified in Freeman [[1970] 54 Crim App Rep 251] 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 section 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 section 1(6) and, if it is raised, the defence in section 1(5). Those subsections raise questions of fact which must be resolved. Whether an item falls within section 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."

20. Mr Shaw for the Crown argued that, as the item as seized was a firearm at that time, any conversion from a toy gun was complete. It had been made into a lethal barrelled weapon from which a shot bullet or other missile could be discharged. There was no question of the 1982 Act applying to it since that Act applied to imitation firearms rather than actual firearms. The steel bolt which was readily removable was properly analogous to a safety catch which temporarily prevented a gun being fired. The removal of the steel bolt would not amount to a conversion or adaptation of the item that had already taken place. The issue between the parties was properly a question of fact and degree for the jury to consider based on the evidence they had heard, and the judge had indeed left those issues to the jury.

Discussion

21. The 1982 Act does not of itself create any offence. What it did was to widen the scope of the 1968 Act so as to cover imitation firearms which are readily convertible into firearms. As already stated section 1(6) defines the circumstances in which an imitation firearm shall be regarded as being readily convertible.
22. In Freeman it was held that the definition of "firearm" in section 57(1) of the 1968 Act covered the case of a starting pistol whose firing chambers had constrictions in the front ends and the barrel of which was solid. Those features were intended to prevent the discharge of missiles, but could readily be removed by drilling, in which case the pistol would be capable of firing bulleted ammunition with lethal force. The court held, following Cafferata v Wilson [1936] 3 AER 149, that although, as seized, the starting pistol was not capable of being fired, its ease of adaptation by use of an electrical drill of a type readily obtainable meant that it should be regarded as a firearm within the terms of the Act. In Bewley, however, this court qualified the decision in Freeman in the light of the provisions of section 1 of the 1982 Act. For reasons analysed in the judgment of Moses LJ, the court held that such a weapon would only be a firearm within the 1968 Act if it could be converted into a weapon from which a missile could be discharged without any special skill or the necessity for specialist equipment. Since the item in that case could only discharge a missile from the barrel in combination with other pieces of equipment, namely a vice, a punch and a mallet, the starting pistol in that case was not a lethal barrelled weapon from which any shot bullet or other missile could be discharged. It was plainly an imitation firearm within the meaning of section 57(4).
23. The passage in Bewley at [28] upon which Mr Doherty relied has to be read in the light of [16] of Bewley:

"Although section 57(1) uses the present tense, "can be discharged", a weapon may fall within the definition in section 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 Clerk at 313). The very notion of a capacity of a weapon must refer not only to its condition at the time of possession but to its construction and 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 at 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?"

24. This passage was relied on by Mr Shaw. It precedes the court's analysis of Cafferata and Freeman and the provisions of the 1982 Act which led the court to conclude that the provisions of the 1982 Act relating to imitation firearms readily convertible into firearms had modified the approach of this court in Freeman. We do not, however, read Bewley as affecting the position where an item which already satisfies the definition of a firearm within section 57(1) requires some minor repair or attention before it can be discharged. It seems to us that paragraph 16 of Bewley acknowledges that this is the case.
25. Accordingly we consider that the judge was right to leave the contrasting cases of Crown and defence for the jury's consideration. Contrary to ground (a), although it is clear that in discussion with counsel in the absence of the jury the judge favoured the Crown's argument, he did not withdraw the issue from the jury or rule that the 1982 Act did not apply to this case. The terms in which he summed the matter up clearly highlighted the distinction between the two cases advanced. It left the jury in no doubt that before they could convict they had to be sure that the item was a firearm in the sense that the weapon had already been converted so as to be capable of being fired in its present condition, as opposed to something which had started off life as an imitation firearm and which, notwithstanding the work which had been carried out, had not been converted into a firearm and which required further work to turn it into one by unscrewing the bolt. It was left open to the jury to conclude that although the item could readily be converted, it was or might be an imitation firearm. Only if the jury was sure that the Crown's position was correct could they find the appellant guilty.
26. The direction given in those terms did not in our judgment in any way disadvantage the appellant. The jury could only convict if it was sure of the case advanced by the Crown, and took the view that the need for the removal of the steel bolt did not in realistic terms mean that the item could not be discharged or that it remained an imitation firearm. The jury had been told of the essence of [16] of Bewley by the judge when he gave them a further direction following their question. Accordingly it seems to us that ground (b) cannot succeed since the issue of fact was properly left to the jury. Moreover the appellant was not deprived of the defence available under section 1(5) of the 1982 Act. The judge's direction was couched in terms that if they thought that the item might be an imitation firearm, the jury should return a verdict of not guilty since the Crown had not proved that the item was a firearm. A direction in those terms was in fact favourable to the appellant since it did not require him to go on to prove the statutory defence available to a person in possession of a readily convertible imitation firearm.
27. Turning to ground (c), we are not persuaded that the way in which the judge left the matter to the jury was in any way unbalanced. As already stated, he reminded them both of the evidence given by the expert witnesses and of the arguments made by counsel. Although, as we have stated it is clear that the judge had a view which he expressed to counsel in the absence of the jury, when he summed the case up he properly left the issue for the jury and said nothing which indicated what view they should take.
28. Finally, we do not think there is anything in the point about the way in which the jury's question was dealt with. Essentially the judge reiterated the essence of the dispute so that the jury can have been left in no doubt as to the issue which they had to decide. Insofar as Mr Doherty has criticised the judge for referring to section 1(6) of the 1982 Act, the judge did this at Mr Doherty's invitation and in the course of setting out the conflicting arguments. We see no tenable ground for complaint.

Conclusion

29. It was always accepted on behalf of the appellant that the issue as to whether this was a firearm or an imitation firearm was a matter of fact and degree which had to be resolved by the jury on the evidence put before it. The grounds of appeal have challenged the way in which the judge dealt with the issue in the case, but our conclusion is that the complaints made are not justified. Accordingly the appeal is dismissed.