Scottish High Court of Justiciary Decisons

The cause came before the High Court of Justiciary, comprising the Lord Justice-General (Lord Emslie), Lord Grieve and Lord Kincraig for the hearing thereon on 6th November 1987. Eo die their Lordships made avizandum.

At advising on 13th November 1987, the opinion of the court was delivered by the Lord Justice-General (Emslie).

OPINION OF THE COURT.—In this appeal the appellant is the procurator fiscal in Glasgow and the respondent is Mr Stewart Stevenson. The respondent was charged on summary complaint in the following terms: [their Lordships narrated the charges as set out supra and continued thereafter].

At the trial of the respondent it was found that on 17th August 1985 he had in his possession, at home, a Bren light machine gun of. 303 calibre. As is well known the Bren was designed for military use to fire both single shots and bursts. In 1979 the respondent obtained a firearms certificate for a rifle of 303 calibre. He then acquired from a dealer this particular Bren gun on the faith of that certificate. A minor modification had been made to it so that it would fire only single shots. In particular, the lower projection of the tiny mushroom at the rear of the intermediate lever of the trigger mechanism had been ground or milled away. It was found as a fact that it would take only two or three minutes' work to restore the Bren's capacity to fire in bursts. As the learned advocate-depute explained to us in argument, this could be achieved simply by shaping a panel pin and sticking it on to the edge of the severed mushroom with a strong adhesive. Upon the facts found the sheriff acquitted the respondent for the reasons given in his note. Putting the matter shortly, he decided on his construction of sec. 5 (1) (a) of the Act that all he required to do was to ask himself whether the Bren found in the possession of the respondent was at that time capable of firing in bursts. In reaching his decision he appears to have relied upon the case of Kelly v. MacKinnon 1982 JC 94, a decision of this court on the interpretation of the expression "firearm" in sec. 57 (1) (a) of the Act, and also upon the case of R v. Jobling [1981] Crim. L.R. 625 in which is to be found an interpretation of sec. 5 (1) (a) by a single judge who held that the accused in that case had no case to answer.

In this stated case the procurator fiscal challenges the acquittal of the respondent and question 1 in the case is in the following terms:—

"Was I correct in looking at the condition of the Bren gun as it was at the time of its possession by the respondent?"

The submission of the learned advocate-depute was that the sheriff had misdirected himself in law. He misconstrued sec. 5 (1) (a) of the Act and, said the learned advocate-depute, he fell into error in relying upon the case of Kelly, which affords no assistance whatever in the construction of sec. 5 (1) (a). The mischief which that subsection was designed to suppress by general prohibition was to keep firearms designed to fire in bursts, and also any component parts of such firearms, out of private hands. The language of sec. 5 (1) (a) is merely descriptive of the kind of firearm which is subject to the general prohibition. Such a firearm is one designed or adapted to achieve continuous fire and it matters not, said the learned advocate-depute, that such a firearm may later have been adapted or altered for the purpose of converting it for the time being into a single-shot weapon. An adaptation does not alter the kind or character of the instrument, and support for the construction for which the Crown contends in this case is, according to the submission made to us, to be found in two decisions in the Court of Appeal in England. The first is R v. Pannell (1982) 76 Cr. App. R. 53) and the later case is R v. Clarke (Frederick) [1986] 1 W.L.R. 209. Question 1 in the case should be answered in the negative. Upon a sound construction of sec. 5 (1) (a) the sheriff was bound, on the facts found, to convict the appellant and question 2 should accordingly be answered in the negative also.

Although counsel for the respondent sought to support the judgment of the sheriff and the sheriff's construction of sec. 5 (1) (a), and in making his submission relied upon the cases of R v. Jobling and Kelly v. MacKinnon, we have found no difficulty in concluding that this appeal must be allowed. The sheriff in our judgment clearly misdirected himself by relying upon the opinions delivered in this court in the case of Kelly.That case was concerned with the definition of the expression "firearm" in sec. 57 (1) of the Act, which is in these terms:—

"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;…"

For the sake of completeness we add that sec. 57 (1) (b) includes in the definition of the expression "firearm" any component part of such a lethal or prohibited weapon.

The first question in this case in this appeal is not whether the weapon or article found in the respondent's possession was a firearm. It clearly was a firearm within the meaning of the Act. The first question in this appeal is whether that firearm is a prohibited weapon within the meaning of sec. 5 (1) of the Act. The case of Kellywas not at all concerned with sec. 5 (1) (a) nor was it concerned in particular with the proper interpretation to be placed upon the very different language in which that subsection is expressed. Insofar as it is relevant for our purposes sec. 5 (1) is in these terms: [their Lordships quoted sec. 5 (1) (a) as set out supra and continued thereafter].

The remaining subsections are of no importance for the purpose of this case but sec. 5 (2) says that the weapons and ammunition specified in subsection (1) of this section are referred to in this Act as prohibited weapons and prohibited ammunition respectively. In our opinion it is not difficult to discover from the language employed that it was Parliament's intention to keep out of the hands of the public military weapons designed or adapted for continuous fire and also any component parts of such weapons. The only interpretation of sec. 5 (1) (a) which will allow that intention to be realised is, in our opinion, that the language is descriptive of the kind of firearm which is to be subject to the general prohibition and not descriptive of the public. If a firearm is one designed or adapted to achieve continuous fire, this establishes its kind or character for the purposes of the general prohibition. To construe sec. 5 (1) as counsel for the respondent invited us to construe it would enable the object of the statute to be readily defeated. The prohibition could readily be circumvented by the making of a minor modification to a military weapon designed for continuous fire so that once it had passed into the hands of a member of the public it could readily be restored to its design capacity.

We are content to know that the construction which we place upon sec. 5 (1) (a) of this United Kingdom statute is precisely the same as that which has been placed upon it by the Court of Appeal in England. The cases in question have already been cited. They are R v. Pannell and R v. Clarke . As was pointed out in the latter case, the case of Clarke, the former case, the case of Pannell, must be taken as having overruled the decision in the case of Jobling, which seems to have appealed to the sheriff and which was relied on in this court by counsel for the respondent. The case for the Crown before us was, just as it was in the case of Pannell, that the respondent possessed a firearm designed to achieve continuous fire. The firearm possessed by the respondent in this case clearly was designed with that objective in mind and if we may adopt the language of Eveleigh L.J. in Pannell relating to the weapon with which the Court of Appeal was there concerned, the Bren in this case had been adapted for the purpose of converting it to a single-shot weapon. In our judgment nothing had been done to it to convert this weapon to one of a different character. As Eveleigh L.J. said, it was less efficient as an automatic weapon than it had been but it had not ceased to be one designed as such. Upon the whole matter we are satisfied that on the facts found the respondent was in possession of a prohibited weapon within the meaning of sec. 5. It may be, although it is not necessary for us to express any concluded opinion upon the point, that he was in any event in possession of component parts of a prohibited weapon. For our purposes, accordingly, we deal with this appeal on the first question which we posed for ourselves earlier in this opinion and we shall answer the questions in the case presented to us by the sheriff in the negative and remit to the sheriff with a direction to convict the respondent.

Before leaving this case we have to say that at the trial of the respondent the sheriff's attention was drawn to a decision of a trial judge in the High Court in which he interpreted sec. (1) (a) as we have interpreted it in this opinion. The sheriff in his note tells us that he did not feel bound by this decision. He was in error in taking this view. A decision of a judge of the High Court of Justiciary is a decision of the High Court of Justiciary and unless it has been recalled on appeal, it is binding upon all judges in the lower courts.