Scottish High Court of Justiciary Decisons

At advising on 11th May 1982,—

LORD JUSTICE-GENERAL (Emslie).—The appellant went to trial upon a summary complaint in which he was charged as follows [His Lordship quoted the charges and continued.]

The result of that trial was that he was convicted of charge I only. As to the charges 2 and 3 the Sheriff in the exercise of the power conferred upon him by section 345A of the Criminal Procedure (Scotland) Act 1975, acquitted the appellant upon the ground that he had no case to answer.

At the trial the evidence established that the appellant had in his possession two "revolvers". He did not hold a firearms certificate in respect of either of these objects. The critical question was whether the objects so described were firearms to which section 1 of the Firearms Act 1968 applied. The findings in fact upon which the Sheriff answered that question in the affirmative were as follows—

"2. The first of these was a replica of a colt 45 calibre revolver (Label No. 1). The second was an Inter World Arms starting pistol of German manufacture designed to fire blank cartridges (Label No. 3). "

"3. Label No. 1 had a firing pin inserted in the weapon and the large chambers had been fitted with steel inserts which permitted a 22 calibre rim fire cartridge to be held in each of the chambers. The steel inserts prevented the firing of live ammunition. The barrel of Label No. 1 was obstructed. When recovered from the appellant there were three fired blank cartridges and two live blank cartridges in these inserts. "

"4. Label No. 2 had been altered by the removal of the trigger mechanism and the cylinder advance mechanism. The firing pin protruded beyond the breech face preventing the cylinder from revolving. The barrel was blocked and the chambers had been widened and canted towards the axis. "

"5. Label No. 1 could be easily converted to be capable of discharging a shot by boring out the steel webs in the chambers and in the barrel or, alternatively, by removing the barrel. "

"6. Label No. 2 could be easily converted to a firearm by drilling the solid barrel by freeing the passage through the chamber by boring it out, and remedying the defective firing pin. The revolver was then capable of being fired."

The Sheriff's reason for holding that the "revolvers" described in Findings 2 to 4 were "firearms" within the meaning of section 1 of the Act, appears in his brief Note which we quote in its entirety—"Both the firearms experts for the Crown gave evidence that both revolvers could be easily converted into a firearm. There was no contrary evidence. Accordingly it seemed to me that both revolvers fell within section 57 (1) (b) of the Firearms Act 1968 as they were component parts of a lethal weapon. Reference is made to Cafferata v. Wilson [1936] 3 All E.R. 149 and R. v. Freeman [1970] 1 W.L.R. 788." It is perfectly clear, therefore, that he disposed of the critical question in the case merely by following the judgment of the Court of Appeal in R. v. Freeman, which was not binding upon him, in which Cafferata v. Wilson, a case which was not binding upon him either, was applied.

In this appeal against conviction it is convenient to notice at the outset the following provisions of the Firearms Act 1968 which, properly construed, ought to provide a clear answer to the question whether the two "revolvers" were "firearms" for the purposes of section 1 thereof. In section 57 (1) of the Act the expression "firearm," wherever it appears in the Act, is defined. The definition so far as relevant is this:

"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—

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

2. (b) any component part of such a lethal or prohibited weapon; and

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

The language of that definition presents no difficulty of comprehension and one is tempted to say merely that it means precisely what it says. Essentially it means a lethal barrelled weapon (of any description) from which any shot, bullet or other missile can be discharged. The emphasis is mine. It also includes, inter alia (b) any component part of such lethal weapon. This, in my opinion, admits of only one construction and that is that the part in question is identified as a component of a lethal barrelled weapon from which any shot, bullet, or other missile can be discharged. Again the emphasis is mine. Putting the matter in another way the part must be identified as a component of something which is in fact a lethal weapon. A component part of something which is not a lethal weapon cannot, by itself, be a firearm and it is nothing to the point that parts of that which is not a lethal weapon could be stripped therefrom and used in the construction of something which, when completed, would become a lethal weapon. It is nothing to the point either that a part is a component of an article which, not being a lethal weapon, might in various ways be converted or adapted in order to become such a lethal weapon. That this is not only the obvious interpretation of the definition in section 57 (1) (b) but the correct and only interpretation thereof appears clearly from a consideration of section 4 (3) of the Act which is in these terms—"It is 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." If, therefore, a person possesses something which, although having the appearance of a firearm, is also constructed as to be incapable, without conversion, of discharging any missile through its barrel, he does not possess. a "firearm" within the meaning of the Act. If the natural and obvious meaning is given to the words used by Parliament in the definition of the expression "firearm" read together with section 4 (3), there can be no doubt that on the facts found in this case the appellant should not have been convicted of charge I in the complaint. The position was, simply, that he was shown to have been in possession of two objects having the appearance of firearms which required to be converted in order to become firearms. In my opinion, proceeding solely upon what appears to me to be the obvious and only reasonable construction of section 51 (1) and section 4 (3), it is impossible to presume that Parliament contemplated for one moment that the person who purchases, acquires and possesses something which by reason of its construction is incapable of discharging any form of missile must hold a firearms certificate, even if it is capable of being converted into a lethal weapon, or if some of its parts could be stripped off and used as components in the construction of a lethal weapon.

As I have already said, however, the Sheriff convicted the appellant of charge 1 merely by following Cafferata, a decision of the King's Bench Division which did not find its way into the Law Reports, and the later Court of Appeal decision in R. v. Freeman . I must now ask myself whether these cases persuade me that we must give to section 51 (1) and section 4 (3) an interpretation which they cannot reasonably bear, and thus ascribe to Parliament the intention that the words of these provisions should mean not only what they say but also the opposite of what they say.

The case of Cafferata v. Wilson was concerned, in an appeal by case stated by a stipendiary magistrate, with the definition of the expression "firearm" in the Firearms Act 1920, section 12 (1), which was in these terms—"In this Act, unless the context otherwise requires—the expression ‘firearm’ means any lethal firearm or other weapon of any description from which any shot, bullet or other missile can be discharged or any part thereof …" It will be seen therefore that the definition differs in no material respect from the definition contained in section 57 (1) (b) of the Act of 1968. It was, indeed, a definition which was repeated in almost identical terms in section 32 (1) of the Firearms Act 1937 (a consolidation measure) and it is clear that in the relevant legislation after 1920 Parliament contented itself by repeating in all essential respects the definition of the expression "firearm" in section 12 (1) of the Act of 1920. I have only to add that before the decision in Cafferata was given the Firearms Act 1920 had been amended by the Firearms Act 1936 which introduced, in section 9 (2), a provision which was in all material respects repeated in section 4 (3). What happened was that the stipendiary magistrate had convicted Cafferata of the offence of having sold a firearm when not registered as a firearms dealer in terms of the Act. The alleged "firearm" was a dummy revolver which looked like a real one but which was fitted with a barrel and cartridge chambers, only partially bored. There was a venthole in the barrel. It was established that the dummy was incapable, as sold, of discharging any missile. It was also established that by drilling out the barrel and chambers it could have been converted into a lethal weapon. These were the facts on which the magistrate convicted upon the view, apparently, that the dummy as a whole was part of a firearm within the meaning of the definition in section 12 (1). In the appeal it was argued that this proposition, which appears to me to be manifestly absurd, was quite unsound, and the Court's attention was drawn to inter alia the provisions of section 12 (1) itself and to the terms of section 9 (2) of the Firearms (Amendment) Act 1936. In the result the leading opinion was given by Lord Hewart CJ. That opinion, with which Branson and du Parcq JJ agreed, was remarkable for its brevity. It contains no constructive analysis of the language of section 12 (1), read together with section 9 (2) of the Act of 1936, and, indeed, nothing whatever is said of the formidable argument which had been presented on behalf of Cafferata. Ignoring the opening two sentences of introduction the Lord Chief Justice said only this—"Everything turns on the definition of ‘firearms’ in the Act of 1920. At the material time the article was incapable of being fired, but a part of it needed alteration to make it suitable for firing. 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 an addition but an adaption 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 required to be bored are ‘parts thereof’ within the meaning of the section. The magistrate has not misdirected himself and the appeal must be dismissed."

I have no hesitation in disagreeing profoundly with this opinion. Everything did not turn on the definition of "firearms" in the Act of 1920. It turned upon the definition of "firearm" in that Act read together with section 9 (2) of the amending Act of 1936. Even on the Lord Chief Justice's approach I cannot accept for one moment that the view of the magistrate was "quite a tenable proposition." It is for consideration whether the Lord Chief Justice really thought so because he then went on to say that it was easier to support the decision from another point of view. That was that, as a matter of law, all parts of the dummy which did not require to be bored were "parts thereof," i.e., parts of a lethal weapon … from which a shot bullet or missile can be discharged. I find this point of view to be just as untenable as the quite different point of view upon which the magistrate convicted. If the only question in the appeal before us had been whether Cafferataaffords us persuasive assistance in the not very difficult search for the true interpretation of the definition of the expression "firearm" I would have had no hesitation in holding that it is of no assistance whatever. Before leaving CafferataI take leave to observe that the opinion of the Lord Chief Justice as to the meaning of the expression "parts" of a lethal weapon leaves no room for the view that questions of fact and degree can be involved at all.

The remaining question is whether I should be persuaded by the decision of the Court of Appeal in R. v. Freeman that, although I am wholly confident that the opinion of the Lord Chief Justice in Cafferata is not only unsound but patently unsound, I must nevertheless force myself to interpret the expression "firearm" in the 1968 Act as if it meant, not what the definition tells us, but what the Lord Chief Justice said it meant.

The case of Freeman was an appeal against his conviction, at North East London Sessions, of possessing a firearm without holding a firearms certificate. The charge was laid under section 1 (1) (a) of the Firearms Act 1968 and was a charge of precisely the same kind as we are concerned with in the present appeal. The object in question was a starting revolver of solid construction, with constriction in the front ends of the firing chambers. The barrel was solid but part of it had been drilled at the muzzle end. The evidence was that this article could be adapted, by drilling, in order to become capable of discharging bullets with lethal force. The Chairman of the Sessions ruled on these facts that the article was a firearm within the meaning of the Act and in the appeal the question was whether, in so doing, the chairman had misdirected the jury. In refusing the appeal the judgment of the Court was delivered by Sachs L.J. who was sitting with, as he then was, Widgery L.J., and with Brabin J. In that judgment Sachs L.J. described the facts and proceeded to examine the antecedents of sections 57 (1) and 4 (3) of the Act of 1968. He then went on to say that "at no time since it was decided has any challenge been offered in any of the Courts of this country, so far as can be ascertained from the authorities cited to us, to Cafferata v. Wilson . On the other hand we have been referred to Muir v. Cassidy 1953 S.L.T. 4 which shows quite plainly that Cafferata v. Wilson was being considered as still governing the law, at any rate in Scotland." Upon the value to be attached to this part of the opinion I shall return later but it was upon this remarkably slender and inaccurate foundation that the ground of judgment depended. What Sachs L.J. said was this—"In the view of this Court the Acts of 1937 and of 1968 must each be deemed to have been enacted by a legislature acquainted with the actual state of the law and the practice of the Courts as at the date when they were passed. The principle then applicable is as stated in Maxwell on Interpretation of Statutes, 11th ed. (1962) p. 303: ‘… when the words of an old statute are either incorporated in, or by reference made part of, a new statute, this is understood to be done with the object of adopting any legal interpretation which has been put on them by the Courts.’ In slightly different language, it has been stated and restated in the course of many decisions that ‘when Parliament has re-enacted the same words with full knowledge of an earlier decision, it is perfectly clear that this Court, observing the intention and seeking to honour the intention of Parliament, must inevitably uphold the principles of the earlier decision.’ That quotation is from a passage in the judgment of Lord Parker C.J., in Reg. v. Jackson [1969] 2 W.L.R. 1339, 1345, when dealing, of course, with a different statute." He then said, after mentioning the argument for the appellant, that the submission on construction and to the effect that Cafferata should be overruled "is rejected for the reasons already given as to interpreting the intention of Parliament. It is the view of this Court that the 1968 legislation was executed on the basis of the law being as stated in Cafferata v. Wilson and in particular on the second of the two grounds which the Court in that case adopted." The remainder of the opinion is of little or no importance and I mention only one of two observations made by the learned judge. This is what he said—"Other cases, of course, may arise when it is a question of fact and degree whether the subject matter of the charge does or does not fall within the ambit of the Act and in such cases the issue must be left to the jury."

I have no hesitation in declining to follow the line taken by the Court of Appeal in R. v. Freeman . Let me say at once that I seek to cast no doubt upon the general rule or principle upon which that Court sought to found its judgment. That rule, in my opinion, however, affords no more than a general guide to construction and it must not be applied blindly in such a way as to produce a wholly absurd result. It is likely to be of great assistance where one is dealing with re-enactment of a particular provision which has been the subject of authoritative interpretation by, for example, the Courts of Appeal, which has been applied in subsequent cases and which has governed practice ever since. It is, on the other hand, calculated to mislead one as to Parliament's intention in a United Kingdom statute, where all that can be said is that the re-enactment took place when there was recorded in the All England Reports what was, in my opinion, an obviously unsound decision of a Divisional Court which was, it is clear, simply followed by a Sheriff-substitute in Scotland who did not trouble himself with any independent examination of the language of the relevant definition, in Muir v. Cassidy 1953 S.L.T. (Sh. Ct.) 4. To assume, as the Court of Appeal did in Freeman, as part of the foundation of their judgment that Muir v. Cassidy showed "quite plainly that Cafferata v. Wilson was being considered as still governing the law, at any rate in Scotland" was an assumption wholly without warrant. Muir v. Cassidy cannot be regarded as any more than a decision by a single Sheriff-substitute in one of the sheriffdoms of Scotland. It was not in any sense an authoritative declaration of the law as it was understood and applied in Scotland as a whole. This false assumption by the Court of Appeal heavily undermines the judgment upon which it in part proceeded, but the matter does not end there. Cafferata, we know, has never been authoritatively tested. It cannot be assumed that this is because it has been accepted as governing subsequent practice. There is simply no evidence that this is so, and it appears to me that the absence of subsequent discussion of Cafferata may well be attributable to the good sense of prosecutors on both sides of the Border who have not sought to proceed upon the faith of the meaning given therein to the expression "firearm." Putting the matter quite shortly I cannot bring myself to impute to Parliament the intention that the word "firearm" in the Act of 1968 should, in spite of the plain intendment of the language of section 57 (1) and section 4 (3), be interpreted to mean what Cafferata said it meant. The legislation is United Kingdom legislation. Cafferatawas a decision which, on its face, was not only suspect but obviously wrong. The construction which it placed on the expression "firearm" finds no support in any authoritative decision of the High Court of Justiciary, where so far as I know, the Cafferata view of its meaning has never even been debated. There is the further consideration that there is no reason to believe that, following Cafferata, any practice developed of prosecuting or prosecuting successfully at first instance, on either side of the Border, persons in the possession of dummy weapons, or starting pistols, or parts of such articles, under section 1 (1) (a) of the 1968 Act and its statutory predecessors. In light of what I have said so far I cannot, with respect to the Court of Appeal in Freeman, support their decision, and I am in no doubt that this appeal must be allowed. I have only to add that I find it astonishing that in an opinion which bears to apply to the interpretation of section 57 (1) of the Act of 1968 the decision in Cafferata there appears, in the final paragraph, the observation that the question whether something is or is not a "firearm" may be a question of fact or degree. For that observation Cafferata lends no support at all. If an article is not a lethal barrelled weapon from which any shot, bullet or other missile can be discharged or a component part of such weapon, it is not a "firearm" for the purposes of the Act. Whether it would be easy or difficult to convert such an article into such a lethal weapon is quite irrelevant and where one is dealing with, let us say, an object which is not a component part of such lethal weapon but which could be used in the construction of such a lethal weapon, it cannot be seriously suggested that it is, for that reason, a "firearm" in its own right, or might be held to be so treating the matter as one of fact and degree.

My motion to your Lordships is that the question in the case should be answered in the negative and that the conviction of the appellant should be quashed.

LORD CAMERON .—But for the fact that we find ourselves unable to accept the apparent conclusions reached in the English cases concerned with the interpretation of the Firearms Act, I would have contented myself with the concurrence with the opinion of your Lordship in the chair. As, however, our decision is contrary to that interpretation I feel that it is only proper I should set out my own reasons for the conclusion at which I have arrived.

The charge on which the appellant was convicted was one of contravention of section 1 (1) (b) of the Firearms Act 1968—possession of two revolvers to which section 1 of that Act applied, without the requisite certificate. Thus it was of the essence of the complaint that the articles should be firearms within the definition of a "firearm" in that Act. What is a "firearm" is defined in section 57 (1) as "a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes … (b) any component part of such a lethal or prohibited weapon." This definition re-enacts the definition of "firearm" contained in the Firearms Act of 1920, subject to the inclusion of the word "component" in the language of what is now subsection (1) (b).

Taking the words of the definition as they stand, and this be it observed is a penal statute, the essential quality of the article is that it is one from which any shot, bullet or other missile can be discharged and the reference to any component part "is to a component part of such an article."

Prima facie therefore the Sheriff's decision could not be supported, as he has found in fact that the articles are not capable of discharging a shot, bullet or other missile and that at the same time they are themselves "component parts" of articles which have the capacity.

The factual basis of the Sheriff's decision, however, rests on his findings in fact that both articles could be "easily converted" to a firearm by certain operations which he details: he does not however state for whom the operation of conversion would be "easy" or why. His finding 6 relating to the second article is to the effect that it "could be easily converted to a firearm"—a finding in fact which, if taken literally, negatives the proposition that the article in its existing state was a firearm at all.

The matter of conversion of an article not a firearm within the meaning of what is now section 57 of the Act of 1968, is specifically dealt with in section 4 (3) of that Act, itself a re-enactment of section 9 (2) of the Firearms Amendment Act 1936: section 4 (3) 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." This provision—to which the learned Sheriff makes no reference—would appear to be precisely applicable to such a case as this: that which, though it has the appearance of a firearm but is so constructed (as are both articles in the present case) as to be incapable of discharging a missile through its barrel is by the plainest implication, while in that state, not a firearm. Thus, when the language of section 57 (1) and that of section 4 (3) is construed together the inevitable conclusion would appear to be that neither of the articles in this case fall within the statutory definition of a "firearm."

The Sheriff's solution of the problem and his approach to it are explained in his Note. In the Note he explains that the uncontradicted evidence of firearms experts was to the effect that both "revolvers" could be casily converted into a "firearm." Because of this he held that "as they (i.e. the ‘revolvers’) were component parts of a lethal weapon they fell within the definition of ‘firearm’ in section 57 (1) (b) of the Firearms Act 1968." The logic of this is at first curious: in themselves the objects were component parts of their own entities and therefore were component parts of a firearm and thus a firearm. In reaching this conclusion the Sheriff professed to follow two English decisions—Cafferata v. Wilson [1936] 3 All E.R. 149 and the later case of It. R. v. Freeman [1970] 1 W.L.R. 788. The first of these two cases, which related to a prosecution for possesion of a firearm without holding the necessary certificate, contrary to section 1 (1) of the Firearms Act 1920, concerned a dummy revolver with a solid barrel and a solid revolving "cartridge chamber"—; while in that state incapable of firing a bullet or other missile it could, by drilling for a brief space of time, be converted into a weapon capable of firing a bullet or other missile which could kill at a range of 5 feet.

The relevant provision of the Firearms Act 1920 was section 12 (1) which provided "In this Act unless the context requires otherwise, the expression ‘firearm’ means any lethal firearm or other weapon of any description from which any shot, bullet or other missile can be discharged or any part thereof." The obvious antecedent to which the italicised words naturally refer is the weapon possessing the capacity set out in the subsection.

Such a construction would prima facie appear to be irresistible were it not for the construction put upon the section by the King's Bench Division in the case of Cafferata. The facts in Cafferata were that the appellant sold a "dummy revolver" which was of shape and appearance similar to an ordinary revolver. The barrel was solid except for a hole, 3/8 in depth from the muzzle. The revolving chamber was solid except for shallow recesses at the ends of which would normally be the cartridge chambers. It was not in a state capable of firing a bullet or other missile. It was also found as a fact in that case that by use of an electric or hand drill the article could be made capable of discharging a missile—which could be lethal at a range of 5 feet. In an earlier case of Bryson v. Gamage [1907] 2 KB 630, concerned with an earlier similar section of the Pistols Act 1903, it was held that a toy pistol was not covered by the definition in section 2 that a "pistol" means a firearm … from which any shot, bullet or other missile can be discharged and of which the length of barrel, not including any revolving detachable or magazine breech, does not exceed nine inches. In that case, which concerned an air pistol, the criterion of whether such an article should be held covered by the definition of a firearm was whether it was in fact one "from which any shot, bullet or other missile can be discharged."

In Cafferata the magistrate convicted because he held that although at the material time the article was incapable of being fired, a part of it needed alteration to make it suitable for firing and consequently that the article as a whole was "part" of a firearm.

His decision was affirmed on the ground that "that is quite a tenable proposition"—in light of the magistrate's findings. Hewart L.C.J. then went on to say "If something 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 an addition but an adaption of what was already there." With all due respect to the learned judge I find it extremely difficult to understand this as an interpretation of the precise language of the section, while the further statement that "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 other parts of it except those which require to be bored are ‘parts thereof’ within the meaning of the section" presents equal difficulties of appreciation of the conclusion that "The magistrate has not misdirected himself." I would like to make two observations here, first, that the barrel was an integral part of the article and if the learned judges' meaning were accepted, any part of an imitation pistol or revolver which could be identified and could be fitted into other parts, not necessarily of the same article, so as to make an operative weapon capable of discharging shot, bullet or other missile would constitute a "firearm." The second observation is this, that the judgment was directed to the issue of whether the decision in the particular case and on its particular facts could be supported. The Court was not concerned to give an authoratative ruling on the construction of the section of the Firearms Act or to review earlier authorities such as Bryson v. Gamage which would appear to point in an opposite direction. Further, and this in my view is important, the judgment made no reference to the terms of section 9 (2) of the Firearms Amendment Act 1936—now re-enacted in section 4 (3) of the Act of 1968. I cannot think that if the Court in Cafferata thought they were doing more than adjudicating on an issue of misdirection in relation to a particular state of fact they would have totally ignored consideration of that important provision. In any event, while decisions of Courts in England on the interpretation of a United Kingdom statute deserve and receive due respect, they are not binding, especially in the field of criminal law, and I would not be prepared to regard the decision in this case of Cafferata as placing an interpretation on the relevant section of the Firearms Act which I would, with all respect, be prepared to accept and apply. But, as I have already indicated, when properly examined the decision in that case is plainly one which is said to be based on the Court's interpretation of the particular facts of the case and of the magistrate's direction of himself on those particular facts

This is the case then which is said in R. v. Freeman to have placed an accepted judicial interpretation on the language of what is now section 57 (1) of the Act of 1968 and, that being so, in accordance with recognised canons of interpretation of consolidating statutes is to be held to govern the interpretation of identical language in the current statute. But the judgment of the Sachs L.J., who gave the judgment of the Court in Freeman, appeared to proceed on the basis that the Sheriff Court decision in Muir v. Cassidy 1953 S.L.T. (Sh. Ct.) 4 showed quite plainly that Cafferata v. Wilson was being considered as still governing the law, at any rate in Scotland. This, I am afraid, is equally plainly not so, as at that time, so far as I know, Cafferata v. Wilson had never been followed in any reported case in Scotland, other than Muir v. Cassidy and at the date of Freeman there was no authoritative interpretation in Scotland of these particular statutory provisions, far less an acceptance of the decision in Cafferata v. Wilson as laying down a principle of interpretation of (now) section 57 (1) of the Act of 1968 and as an authoritative definition of the meaning of the word "firearm" in that section. Further, there would appear to be a contradiction of some substance in what was said by the learned judge. Having expressed the view that Parliament in re-enacting the provisions of the Act of 1920 as construed in Cafferata v. Wilson was to be assumed to have intended the same interpretation to be placed upon the same words in the consolidating statute, he went to on to say this:

"In conclusion there are two observations to be made. In this particular case the subject matter of the charge was identical with that in Cafferata v. Wilson . Other cases of course may arise when it is a question of fact and degree whether the subject matter of the charge does or does not fall within the ambit of the Act and in such cases the issue must be left to the jury."

But the learned Lord Justice nowhere states what is the standard against which the facts must be judged by magistrate or jury and certainly none can be found in Cafferata. To that extent and on the face of it the decision in Freeman appears to be one which follows the earlier decision because the facts in the two cases were identical—and that circumstance was held to be sufficient ground for a similar decision.

As I have already noted, the argument presented on the terms of section 9 (2) of the Firearms Amendment Act 1936 was completely ignored by the Court in Cafferata so it is in any case difficult to see how the decision or the judgment, the ratio of which I have already dealt with, could be regarded as authoritative beyond the limits of its own facts—even on the views expressed in R. v. Freeman . Section 9 (2) of the Act of 1936 is now re-enacted in section 4 (3) of that of 1968. This subsection 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 a firearm, is so constructed as to be incapable of discharging any missile through its barrel. The plain corollory of this is that if any article is so constructed it does not fall within the definition of a "firearm" as contained in section 57 (1) of the Act of 1968. On the face of it the description completely fits the "revolver" described in the Sheriffs findings. Prima facie therefore they would require conversion—as the Sheriff's findings demonstrate—to become an article from which a shot, bullet or other missile can be discharged.

In R. v. Freeman Sachs L.J. noted that this earlier subsection was "mentioned to the Court" in Cafferata. It was not only mentioned, it was founded upon in argument and totally ignored by the Court. But it was brushed aside in R. v. Freeman in these dismissive words "the suggestion today that the appearance of section 4 (3) in the Act of 1968 raises some distinction on which the appellant can rely is thus shown to be ill-founded"—a leap in logic on which I confess myself too timorous to adventure. Thus neither in one case nor the other was this apparently relevant and possibly decisive provision even considered, far less made the subject of judicial determination in its possible relevance to the proper interpretation of the word "firearm."

On this analysis of the two English decisions founded upon, neither appears to be anything other than at the kindest a decision upon its own particular facts, while the Sheriff Court decision does no more than to profess to follow Cafferata.

If this examination of these decisions shows that they do not provide an authoritative interpretation of what the statute itself already sufficiently defines, then it is clear that the Sheriff misdirected himself in his application of the law. The question then is whether his decision can stand on the findings which he has made. In my opinion it cannot. Findings 5 and 6 show plainly that conversion would be essential before the "revolvers" could satisfy the definition of "firearm" in section 57 (1) and this conclusion is reinforced by consideration of the language of section 4 (3)—(formerly section 9 (2) of the Act of 1936). It is impossible that the word "firearm" should mean two different things in the same statute, one an article from which a shot, bullet or missile can be fired and one from which it cannot. On the facts found by the Sheriff I am of opinion, agreeing with your Lordship, that the appeal succeeds and the questions should be answered accordingly.

It may well be a matter for the legislature to consider whether the definition of "firearm" should be expanded to cover cases where conversion is a simple matter readily achieved—but it is not for the judiciary to distort the plain language of a legislative enactment in order to achieve an object which may well be thought to be laudable and desirable but is not one which can be achieved without doing violence to the language used by Parliament and distorting the plain words of the statute.

LORD DUNPARK .—I am in complete agreement with the reasons given by your Lordship in the chair for quashing this conviction, and I have nothing to add to your Lordship's opinion.