Scottish High Court of Justiciary Decisons

MAXWELL NEIL McKIRDY v. PROCURATOR FISCAL, LINLITHGOW [1999] ScotHC 59 (10th March, 1999)

The appellant Maxwell McKirdy was convicted on 13 November 1997 of an offence under section 1(1)(a) of the Firearms Act 1968 as amended at Linlithgow Sheriff Court. The case is a somewhat unusual one. The offence in question is that of having in the accused's possession a firearm contrary to section 1(1)(a). Section 57(1) of the Act defines a firearm. It does so by saying that the expression "firearm" means a lethal barreled weapon of any description from which any shot, bullet or other missile can be discharged and includes various more specific articles, one being any component part of such a lethal weapon. In this particular case the appellant was found at his home at 2.30am. He had a gun shot wound in his left thigh. He told the police that this injury was caused by a .22 bullet and he then admitted that he had been attempting to make what was described as a "zip gun" during which time he had struck the base of the round in the weapon which exploded injuring him.

The item in question which he had described was produced. It was described as a crudely fashioned firearm constructed from a 90mm length of bamboo cane with an external diameter of 10mm. This was hollow along its length with an internal diameter of 6mm or approximately .22 inches. The bamboo cane was reinforced by copper wire wound around its length. A copper plumber's joint had been "peened" or hammered into one end of the bamboo cane forming the breach of the weapon. Neither the copper wire nor this copper joint was essential to the operation of the item. They did however make the weapon safer to operate. A cartridge could be fired through the length of the bamboo cane on its own and it could explode. In presenting the appeal counsel drew attention to findings 8 and 9. Finding 8 is to the effect that there was no integral firing pin or firing mechanism which would fire a cartridge or bullet and finding 9 is to the effect that for a cartridge to be fired from the item, some external force such as a blow with a hammer, chisel or screwdriver was necessary to fire a .22 bullet or cartridge in the breach of the item.

The sheriff has found that the item was a lethal barreled weapon of any description from which a bullet could be, and in this case had been, discharged. The case is plainly unusual in as much as we are not here faced with any ordinary type of weapon, recognisable as such. Nor is this the kind of case involving what one might normally describe as a weapon, but perhaps altered or having some part missing. On the other hand from the facts found and indeed admitted by the appellant to the police, it is evident that in terms of function and purpose this was intended to be something from which a .22 calibre bullet could be and would be discharged. That being so, the argument becomes one as to whether it is in itself a weapon or whether it lacks an essential part of what would be necessary for the description of it as a weapon to be appropriate. There is no doubt that if it is a weapon it would be a lethal barreled weapon and fall within the words "lethal barreled weapon of any description" from which a bullet could be discharged. It is perhaps understandable that emphasis is placed upon findings 8 and 9 since the object does not have an integral firing pin and it is no doubt, nowadays at least, familiar that most weapons designed to fire bullets will indeed have some integral element of that kind. The question however is whether that is essential to its nature as a weapon. We were referred, and indeed the sheriff was referred, to the dicta of the Lord Justice General in the case of Kelly v McKinnon 1982 S.C.C.R.205 but we do not find it necessary to go into those in detail. It is very clear from that case that the present tense in the section is important; there must be something from which a shot "can" be discharged. That being so something which, for example, had a blocked barrel and which simply could not emit a bullet will plainly not be a weapon. It is clear from that case that there was no firing pin, but that in itself does not appear to have been the determinative element and we are not persuaded that that really resolves the present case. A number of weapons, or what might be regarded as weapons, were referred to in the course of submissions. It appears to us that there are things which would be called weapons even without having built into them either any propellant or striking mechanism, or for example any means of igniting a propellant which is contained either within the item or within the missile. It may well be that it is necessary either to apply a match, strike a flint or indeed have something in the way of a firing pin or striker in order to cause an explosion which forms the propulsive element in discharge. But it does not appear to us that there has to be within, and integral to, the particular object anything which performs any of these functions. It is significant that the definition provides that it must be a weapon of any description from which any shot can be discharged. The section does not describe the weapon as one by which any shots can be discharged. It appears to us that the concentration is not upon whether the object itself brings about the discharge: the question is whether it is something from which, in one way or other, a shot or bullet can be discharged. Concentrating on those words it appears to us that this is something from which a shot or bullet could be discharged. It is undoubtedly barreled, and properly described as lethal. Taking these characteristics into account, along with the purpose or function with which the object had been constructed, the use of the ordinary word "weapon" is in our opinion appropriate. That being so we are satisfied that the definition is met and that this was to be regarded as a weapon.

An alternative argument had been presented that this was a component of a weapon. The Advocate Depute did not seek to press that matter and we are satisfied that there would be problems in regarding this as a component of a weapon since the additional element of something to strike the round with would not be any identifiable or previously existing item. We do not therefore deal with that argument. We answer the questions to the effect that the sheriff did not err in question 1 and we do not deal with question 2.

LIN