Drug & Firearm Defence
Firearms Offences
The Firearms Act 1968 defines firearms and also creates a number of sub-categories of firearm, namely shot guns, air weapons and prohibited weapons. The particular type of firearm determines which offences under the Act will be applicable.
Section 57(1) defines a firearm as any of the following:
- ▸ a lethal barrelled weapon, as defined under section 57(1B);
- ▸ a prohibited weapon, as defined under section 5;
- ▸ a relevant component part in relation to a lethal barrelled weapon or a prohibited weapon, as defined in section 57(1D); or
- ▸ an accessory to a lethal barrelled weapon or a prohibited weapon where the accessory is designed or adapted to diminish the noise or flash caused by firing the weapon.
section 57(1B) defines a “lethal barrelled weapon” as a “barrelled weapon of any description from which a shot, bullet or other missile, with kinetic energy of more than one joule as measured at the muzzle of the weapon, can be discharged”.
Section 57(1C) excludes from the definition of a “lethal barrelled weapon” any weapon meeting the definition of “airsoft gun” under section 57A.
Whether something is a “lethal barrelled weapon” is a question of fact.
Shot Guns
A shot gun is defined under section 1(3)(a) and section 57(4) as “a smooth-bore gun (not being an air gun) which”:
- ▸ has a barrel not less than 24 inches in length;
- ▸ does not have any barrel with a bore exceeding 2 inches in diameter;
- ▸ either has no magazine or has a non-detachable magazine incapable of holding more than two cartridges; and
- ▸ is not a revolver.
Shot guns are exempt from the requirement for a certificate under section 1 but are subject to a separate requirement for a certificate under section 2.
Air Weapons
An air weapon is defined under section 1(3)(b) and section 57(4) as “an air rifle, air gun or air pistol which does not fall within section 5(1)(a) (firearms designed or adapted so that two or more missiles can be successively discharged without repeated pressure on the trigger) and which is not of a type declared by rules made by the Secretary of State under section 53 of the Firearms Act to be specially dangerous”. This will include, for example paintball guns.
Such air weapons are exempt from the requirement for a certificate under section 1 (see below under “Possession of Firearms and Shotguns Without a Certificate”).
Rules 2 and 3 of the Firearms (Dangerous Air Weapons) Rules 1969 provide that an air weapon is specially dangerous where:
- ▸ it is “capable of discharging a missile so that the missile has, on being discharged from the muzzle of the weapon, kinetic energy in excess, in the case of an air pistol of 6ft lbs or, in the case of an air weapon other than an air pistol, 12ft lbs” (unless it is designed for use only when submerged in water); or
- ▸ it is disguised as another object.
Any air weapon which uses, or is designed or adapted for use with, a self-contained gas cartridge system is a prohibited weapon: section 5(1)(af).
Prohibited Weapons
Section 5(2) provides that weapons and ammunition of a number of different types, specified in subsections (1) and (1A), are ‘prohibited weapons’ and ‘prohibited ammunition’.
Imitation Firearms
An imitation firearm is “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 (an weapon designed or adapted for the discharge of a noxious substance), whether or not it is capable of discharging any shot, bullet or other missile”: section 57(4).
An offence requiring that someone has “possession” of or “has with him” an imitation firearm requires a ‘thing’ which is separate and distinct from that person. Putting a hand inside a jacket and using fingers to force out the material to give the impression of a firearm falls outside the scope of such offences, as a person’s bodily part is not a separate thing: R v Bentham [2005] UKHL 18.
When considering whether a thing “has the appearance of being a firearm”, the jury should consider whether the thing had the appearance of a being a firearm to the time of the offence, not at any other time: R v Morris and King, 79 Cr. App. R. 104, CA.
Realistic Imitation Firearms
The Violent Crime Reduction Act 2006 created offences relating to the manufacture, importation and sale of realistic imitation firearms, and modifying an imitation firearm so that it becomes a realistic imitation firearm
Section 38(1) of the 2006 Act defines a ‘realistic imitation firearm’ as follows:
… realistic imitation firearm” means an imitation firearm which—
- ▸ has an appearance that is so realistic as to make it indistinguishable, for all practical purposes, from a real firearm; and
- ▸ is neither a de-activated firearm nor itself an antique.
Section 38 goes on to provide guidance on determining whether something is “indistinguishable” from a real firearm.
For the purposes of this section, an imitation firearm is not (except by virtue of subsection (3)(b)) to be regarded as distinguishable from a real firearm for any practical purpose if it could be so distinguished only—
- ▸ by an expert;
- ▸ on a close examination; or
- ▸ as a result of an attempt to load or to fire it.
In determining for the purposes of this section whether an imitation firearm is distinguishable from a real firearm—
- ▸ the matters that must be taken into account include any differences between the size, shape and principal colour of the imitation firearm and the size, shape and colour in which the real firearm is manufactured; and
- ▸ the imitation is to be regarded as distinguishable if its size, shape or principal colour is unrealistic for a real firearm.
“Real firearm” means an actual make or model of modern firearm, or something meeting a description which could be used to identify by reference to their appearance a category of actual modern firearms: section 38(7) of the 2006 Act. “Modern firearm” is defined in section 38(8) as excluding any imitation of a firearm “the appearance of which would tend to identify it as having a design and mechanism of a sort first dating from before the year 1870.”
Readily Convertible Imitation Firearms
Section 1 of the Firearms Act 1982 provides that in respect of readily convertible imitation firearms “the 1968 Act shall apply […] as it applies in relation to a firearm to which section 1 of that Act applies.” The effect is that offences under the 1968 Act will apply to imitation firearms falling within section 1 of the 1982 Act. This is subject to exceptions under section 2(2) of the 1982 Act in relation to certain sections of the 1968 Act: 4(3) and (4), 16 to 20 and 47.
Section 1 of the 1982 Act applies where the imitation firearm:
- ▸ has the appearance of being a firearm to which section 1 of the 1968 Act applies; and
- ▸ is so constructed or adapted as to be readily convertible into a firearm to which that section applies.
“Readily convertible” means “it can be so converted without any special skill on the part of the person converting it and 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” (Section 1(6) Firearms Act 1982).
Deactivated Weapons
Any firearm which is deactivated in accordance with section 8 of the Firearms (Amendment) Act 1988 ceases to be a firearm.
De-activated firearms are expressly excluded from the definition of realistic imitation firearm in section 38(1) of the Violent Crime Reduction Act 2006. However, they may still constitute imitation firearms.
Antique Firearms
Section 58(2) of the 1968 Act exempts from the provisions of that Act all antique firearms which are “sold, transferred, purchased, acquired or possessed as curiosities or ornaments”, except in respect of offences under sections 19 (carrying a firearm in a public place) and (from 22 March 2021) sections 20 (trespassing with a firearm) and 21 (possession of firearms by persons previously convicted of crime).
An “antique firearm” is a firearm that meets the following conditions:
- ▸ either (a) its propulsion system is of a specified type (section 58(2C)): these types are specified in regulation 3 of the Antique Firearms Regulations 2021; or (b) its chambers are those that it had when it was manufactured (or replacements that are identical in all material respects) and those chambers are designed for use with a cartridge of a specified type (whether or not it is also capable of being used with other cartridges) (section 58(2B)): these types are specified in regulation 2 of the Antique Firearms Regulations 2021;
- ▸ where an additional condition is specified in regulations in relation to date of manufacture, it was manufactured before a specified date (section 58(2D)): this date is specified in regulation 4 of the Antique Firearms Regulations 2021 as being 1 September 1939.
Offences
Offences
There are a large number of offences relating to firearms created by the Firearms Act 1968.
Possession of Firearms and Shotguns Without a Certificate
Section 1(1) of the Firearms Act 1968 creates an absolute offence of having possession of, purchasing or acquiring a firearm or ammunition without a certificate or otherwise than as authorised by such a certificate. Section 1(2) creates an offence of failing to comply with the conditions of such a certificate. Section 1(3) provides that this section does not apply to shot guns or air weapons (see the definitions above).
Section 2(1) creates an offence of having possession of, purchasing or acquiring a shot gun without a certificate. Section 2(2) creates an offence of failing to comply with the conditions of such a certificate.
Manufacture, sale, transfer etc of firearms
Section 3 of the 1968 Act provides that it is an offence if, by way of trade or business and without being registered as a firearms dealer, a person:
- ▸ manufactures, sells, transfers, repairs, tests or proves any firearms or ammunition to which section 1 applies or a shot gun;
- ▸ exposes for sale or transfer, or has in his possession for sale, transfer, repair, test or proof, any such firearms or ammunition or a shot gun; or
- ▸ sells or transfers an air weapon, exposes such a weapon for sale or transfer or has such a weapon in his possession for sale or transfer.
Section 32 of the Firearms (Amendment) Act 1997 specifies conditions for the transfer of firearms, including that such transfers must be in person, and creates an offence of failing to comply with these conditions.
Section 32 of the Violent Crime Reduction Act 2006 similarly requires that air weapons sold by way of trade or business must be transferred in person, and creates an offence of failing to comply with this.
Conversion
Section 4(1) of the Firearms Act 1968 creates an offence of shortening the barrel of a shotgun to a length less than 24 inches, subject to an exception under s4(2) relating to the replacement of a barrel.
Section 4(2) creates an offence of a person other than a registered firearms dealer converting into a firearm anything which has the appearance of being a firearm but which was originally incapable of discharging any missile through its barrel.
Possession of articles for conversion of imitation firearms
Section 4A of the Firearms Act 1968 creates an offence of a person other than a registered firearms dealer having in their possession or under their control any article that is capable of being used (whether by itself or with other articles) to convert an imitation firearm into a firearm with intent to use that article for that purpose.
Possession etc. of Prohibited Weapons
It is an offence under section 5(1) and (1A) of the Firearms Act 1968 to possess, purchase or acquire without authority any of the weapons and ammunition listed in those subsections, which are known as prohibited weapons and prohibited ammunition. Some of these items are subject to the mandatory minimum sentence provisions.
Section 5(2A) creates an offence of the manufacture of items listed in subsection (1) and the sale or transfer, possession for sale or transfer or purchase or acquisition by sale or transfer of prohibited weapons or ammunition without authority.
Prohibited weapons and ammunition subject to the minimum mandatory sentence provisions:
- ▸ Section 5(1)(a): any firearm which is so designed or adapted so that two or more missiles can be successively discharged without repeated pressure on the trigger, e.g. machine guns, burst fire weapons;
- ▸ Section 5(1)(ab): any self-loading or pump-action rifled gun other than one which is chambered for .22 rim-fire, e.g. short barrelled rifles;
- ▸ Section 5(1)(aba): any firearm which either has a barrel less than 30cm in length or is less than 60cm in length overall, other than an air weapon, a muzzle-loading gun or a firearm designed as signalling apparatus, e.g. handguns, revolvers;
- ▸ Section 5(1)(ac): any self-loading or pump-action smooth-bore gun which is not an air weapon or chambered for .22 rim-fire cartridges and either has a barrel less than 24″ in length or is less than 40″ in length overall, e.g. self-loading shotguns;
- ▸ Section 5(1)(ad): any smooth-bore revolver gun other than one which is chambered for 9mm rim-fire cartridges or a muzzle-loading gun, e.g. Dragon;
- ▸ Section 5(1)(ae): any rocket launcher, or any mortar, for projecting a stabilised missile, other than a launcher or mortar designed for line-throwing or pyrotechnic purposes or as signalling apparatus;
- ▸ Section 5(1)(af): any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self-contained gas cartridge system, e.g. Brococks;
- ▸ Section 5(1)(c): any cartridge with a bullet designed to explode on or immediately before impact, any ammunition containing or designed or adapted to contain any such noxious thing as mentioned in section 5(1)(b), and, if capable of being used with a firearm of any description, any grenade, bomb (or other like missile), or rocket or shell designed to explode as aforesaid e.g. ammunition containing explosive in the bullets or missiles;
- ▸ Section 5(1A)(a): any firearm which is disguised as another object e.g. pen guns, key fob guns and phone guns.
The following are also prohibited but are not subject to mandatory minimum sentences:
- ▸ Section 5(1)(ag): any rifle with a chamber from which empty cartridge cases are extracted using energy from propellant gas, or energy imparted to a spring or other energy storage device by propellant gas, other than a rifle which is chambered for .22 rim-fire cartridges;
- ▸ Section 5(1)(b): any weapon of whatever description designed or adapted for the discharge of any noxious liquid gas or other thing. This includes stun guns or electric shock devices, CS gas, but not usually cattle prods depending on the type.
- ▸ Section 5(1)(ba): any device (commonly known as a bump stock) which is designed or adapted so that it is capable of forming part of or being added to a self-loading lethal barrelled weapon, and which increases the rate of fire of the weapon by using the recoil from the weapon to generate repeated pressure on the trigger; and
- ▸ Section 5(1A)(b): any rocket or ammunition not falling within subsection (1)(c) which consists in or incorporates a missile designed to explode on or immediately before impact and is for military use;
- ▸ Section 5(1A)(c): any launcher or other projecting apparatus not falling within subsection (1)(ae) which is designed to be used with any rocket or ammunition falling within subsection (1A)(b) or with ammunition which would fall within subsection (1A)(b) but for its being ammunition falling within subsection (1)(c);
- ▸ Section 5(1A)(d): any ammunition for military use which consists in or incorporates a missile designed so that a substance contained in the missile will ignite on or immediately before impact, e.g. incendiary ammunition;
- ▸ Section 5(1A)(e): any ammunition for military use which consists of, or incorporates, a missile designed, on account of its having a jacket and hard core, to penetrate armour plating, armour screening or body armour, e.g. armour piercing ammunition;
- ▸ Section 5(1A)(f): any ammunition which incorporates a missile designed or adapted to expand on impact, e.g. soft-point or hollow-point ammo;
- ▸ Section 5(1A)(g): anything which is designed to be projected as a missile from any weapon and is designed to be, or has been, incorporated in: any ammunition falling within any paragraph of subsection (1A); or, any ammunition which would fall within any of those paragraphs but for its being specified in subsection (1).
Criminal Use of Firearms
The Firearms Act 1968 creates a number of offences relating to the possession of firearms or imitation firearms with particular intents or in particular circumstances:
- ▸ Section 16: it is an offence for a person to have possession of a firearm or ammunition with intent by means thereof to endanger life, or to enable another person by means thereof to do the same;
- ▸ Section 16A: it is an offence for a person to have possession of a firearm or imitation firearm with intent by means thereof to cause a person to believe that unlawful violence will be used against them or another, or with intent to enable another person by means thereof to do the same;
- ▸ Section 17(1): it is an offence for a person to use or attempt to use a firearm (other than a prohibited weapon or a relevant component part of a lethal barrelled weapon or a prohibited weapon) or imitation firearm with intent to resist or prevent the arrest of themself or another;
- ▸ Section 17(2): it is an offence for a person to have possession of a firearm (other than a prohibited weapon or a relevant component part of a lethal barrelled weapon or a prohibited weapon) or imitation firearm at the time of committing or being arrested for certain offences set out in Schedule 1, unless that person shows that they had possession for a lawful object;
- ▸ Section 18: it is an offence for a person to have with them a firearm or imitation firearm with intent to commit an indictable offence, or to resist arrest or prevent the arrest of another, whilst having that firearm or imitation firearm with them;
- ▸ Section 19: it is an offence for a person to have with them in a public place without lawful authority or reasonable excuse a loaded shot gun, an air weapon (whether loaded or not), any other firearm (whether loaded or not) together with ammunition suitable for use in that firearm, or an imitation firearm.
- ▸ Section 20: it is an offence for a person, whilst having with them a firearm or imitation firearm, to enter or be in any building or part of a building or to enter or be on any land as a trespasser and without reasonable excuse.
- ▸ Section 21(4): it is an offence for certain persons previously convicted of criminal offences to possess a firearm or ammunition: where a person has been sentenced to three or more years’ imprisonment, the prohibition is for life; where a person have been sentenced to at least three months but less than three years’ imprisonment, the prohibition is for five years from the date of release (or from the second date after the sentence is passed where it is suspended); and, there may also be such a prohibition included in a community order.
- ▸ Section 21(5): it is an offence a person to sell or transfer a firearm to someone whom they know or have reasonable grounds for believing is subject to a prohibition under section 21, or to repair, test or prove a firearm or ammunition for such a person.
- ▸ Section 21A: it is an offence for a person to have with them an air weapon on any premises and to use it to fire a missile beyond those premises, subject to them showing that they had consent of the occupier of any premises into or across which the missile was fired.
Offences under sections 19, 20 and 21 may be committed using antique weapons which are sold, transferred, purchased, acquired or possessed as curiosities or ornaments, and which are therefore otherwise exempt from offences under the 1968 Act.
Acquisition and Possession of Firearms and Air Weapons by Children and Young People
Sections 22 to 24A of the Firearms Act 1968 create offences relating to the possession and acquisition by minors of firearms and air weapons and the supply of firearms and air weapons to minors:
- ▸ Section 22(1): it is an offence for a person under the age of eighteen to purchase or hire any firearm or ammunition.
- ▸ Section 22(2): it is an offence for a person under the age of fourteen to have possession of any firearm or ammunition to which section 1 applies, subject to certain exceptions.
- ▸ Section 22(3): it is an offence for a person under the age of fifteen to have with him an assembled shotgun, except while under the supervision of a person aged twenty-one or over or while the shotgun is so covered with a securely fastened gun cover that it cannot be fired.
- ▸ Section 22(4): it is an offence for a person under the age of eighteen to have with him an air weapon or ammunition for an air weapon unless supervised by a person aged twenty-one or over, subject to exceptions under section 23.
- ▸ Section 23(1): it is an offence for a person aged twenty-one or over supervising a person falling within section 22(4) to allow that person to fire a missile beyond premises they are on, subject to them showing that they had consent of the occupier of any premises into or across which the missile was fired.
- ▸ Section 24(1): it is an offence to sell or hire any firearm or ammunition to a person aged under eighteen, subject to the defendant proving that they reasonably believed the other person to be over that age.
- ▸ Section 24(2): it is an offence to gift of or lend any firearm or ammunition to which section 1 of the 1968 Act applies to a person under the age of fourteen, or to part with the possession of any such firearm or ammunition to a person under that age, except in certain specified circumstances, subject to the defendant proving that they reasonably believed the other person to be over that age.
- ▸ Section 24(3): if is an offence to gift a shot gun or ammunition to a person under the age of fifteen, subject to the defendant proving that they reasonably believed the other person to be over that age.
- ▸ Section 24(4): if is an offence to gift an air weapon or ammunition to a person under eighteen, or to part with the possession of an air weapon ammunition to a person under eighteen unless the exceptions under section 23 apply, subject to the defendant proving that they reasonably believed the other person to be over that age.
- ▸ Section 24ZA: it is an offence for a person in possession of an air weapon to fail to take reasonable precautions to prevent any person under the age of eighteen from having the weapon with them unless the exceptions under section 23 apply, subject to the defendant proving that they reasonably believed the other person to be over that age (for this particular section, the burden on the defendant is evidential rather than legal).
- ▸ Section 24A(1): it is an offence for anyone aged under eighteen to purchase an imitation firearm.
- ▸ Section 24A(2): it is an offence for anyone to sell an imitation firearm to someone aged under eighteen, subject to the defendant proving that they reasonably believed the other person to be over that age (for this particular section, the burden on the defendant is evidential rather than legal). This section could apply to the sale of some children’s toys; in such cases, the purchase must be made by a parent or other person aged over 18.
Offences relating to Realistic Imitation Firearms
Section 36 of the Violent Crime Reduction Act 2006 creates an offence of the manufacture, importation or sale of realistic imitation firearms. It also made it an offence to modify an imitation firearm to make it a realistic imitation firearm.
Possession and "have with him"
For offences requiring possession, the prosecution has to prove that the defendant knew they had something in their possession; it is irrelevant what they knew or thought it was: R v Hussain(1981) 72 Cr. App. R. 143; R v Waller (1991) Crim. L.R. 381.
Possession is not limited to having physical custody, but includes where a defendant has something under their control: Sullivan v Earl of Caithness [1976] 62 Cr. App. R. 105. In this way, possession can be distinguished from the requirement that a defendant “had with him” a firearm; for discussion of the circumstances in which a defendant can be said to “have with him” a firearm, see R v Bradish & Hall[2004] EWCA Crim 1340.
Disguised Stun Guns
Stun guns which are disguised as other objects (such as torches or mobile phones) are prohibited weapons contrary to both section 5(1)(b) and section 5(1A)(a).
Sentencing
Sentencing
Guidelines
The Sentencing Council definitive guideline for sentencing firearm offences came into effect on 1 January 2021.
Life Sentences under the Sentencing Act 2020
The following offences relating to firearms are offences to which section 283 of the Sentencing Act 2020 (life sentences for second listed offences) is applicable:
- ▸ Section 16, 17(1) or 18 of the Firearms Act 1968; and
- ▸ Robbery where at some time during the commission of the offence, the offender had in his or her possession a firearm or an imitation firearm.
Mandatory Minimum Sentences under the Sentencing Act 2020
Section 311 of the Sentencing Act 2020 mandates minimum sentences for defendants convicted of offences listed in Schedule 20 who were aged 16 or over when the offence was committed.
The offences listed in Schedule 20 relate to:
- ▸ possession of particular types of prohibited weapon under section 5 of the 1968 Act, namely those specified in subsections (1)(a), (ab), (aba), (ac), (ad), (ae) or (af) and (1A)(a);
- ▸ manufacturing etc relating to one of these particular types of prohibited weapon, under section 5(2A);
- ▸ offences under sections 16, 16A, 17, 18, 19 or 20(1) of the 1968 Act involving a prohibited weapon of one of these particular types; and
- ▸ an offence under section 28 of the Violent Crime Reduction Act 2006 (using someone to mind a weapon) involving a prohibited weapon of one of these particular types.
The minimum term for defendants over 18 years at the time when the offence was committed is a custodial term of 5 years; for defendants under 18 years at the time the offence was committed, the term is 3 years: section 311(4) of the Sentencing Act 2020. However, where the mandatory minimum sentence applies to an offence under section 28 of the Violent Crime Reduction Act 2006, the relevant age is the age when the offender was convicted rather than when the offence was committed: section 311(5).
The court must impose the mandatory minimum sentence unless it is of the opinion that there are “exceptional circumstances” relating to the offence or the offender which justify not doing so: section 311(2).
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