Definitions of Firearms and Air Weapons
Malcolm Simmons is a Solicitor and former international judge.
A firearm is "a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged" (section 57 (1) Firearms Act 1968), it includes:
· any prohibited weapon (see below in this guidance section 5 Firearms Act 1968), whether it is such a lethal weapon as aforesaid or not; and
· any component part of such a lethal or prohibited weapon; and
· any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon.
Lethality is a complex issue and although case law exists (Moore v Gooderham  3 All E.R. 575), only a court can decide whether any particular weapon is capable of causing "more than trifling and trivial" injury and is therefore is a "firearm" for the purposes of the Acts. The Forensic Science Provider (FSP) will be able to advise in any case where "lethality" is likely to be an issue. See also: R v Thorpe85 Cr. App. R. 107 CA.
"barrelled" is a question of mixed law and fact - R v Singh (1989) Crim. L.R. 724, CA, involved an evidential dispute as to whether a flare launcher was barrelled.
"from which any shot, bullet or other missile can be discharged" has to be capable of discharging a missile either in its present state or with adaptation. To prove that a weapon is a firearm, it is essential to call evidence as to whether a bullet or missile can be discharged from the weapon or which can be adapted to discharge any missile: Grace v DPP (1989) Crim. L.R.365 where the conviction was quashed as there was no evidence that the air rifle could have been fired.
"component parts". R v Clarke (F), 82 Cr. App. R. 308, CA states that the component part of a prohibited weapon is itself a prohibited weapon. Although there is no statutory definition, the Home Office Guidance to the Police at paragraph 13.70 states the following:
The term "component part" may be held to include (i) the barrel, chamber, cylinder, (ii) frame, body or receiver, (iii) breech, block, bolt or other mechanism for containing the charge at the rear of the chamber (iv), any other part of the firearm upon which the pressure caused by firing the weapon impinges directly. Magazines, sights and furniture are not considered component parts.
R v Ashton, CA, 1 February 2007 seems to suggest that any part that stops the weapon functioning as it was designed would be a component part:
"Whether in fact this particular gas plug is a component part of a prohibited weapon, is a matter of fact for the court to decide the words have their ordinary natural meaning. as a matter of reasonable interpretation it means a part that is manufactured to the purpose screw or washer, would not be a component part for present purposes. Similarly, a component part must be a part that if it were removed, the Gun could not function without it."
An air weapon is defined, under section 1(3)(b) and 57(4) of the Firearms Act 1968 as:
"an air rifle, air gun or air pistol which does not fall within section 5 (1) (a) 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".
Any air rifle, air gun or air pistol which uses or is designed or adapted for use with, a self-contained gas cartridge system is a prohibited weapon: section 5(1)(af) Firearms Act 1968 e.g. a Brocock.
An air rifle is "specially dangerous" if 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 a pistol of 6ft lbs or, in the case of an air weapon other than an air pistol, 12ft lbs: Firearms (Dangerous Air Weapons) Rules 1969 rr. 2, 3.
Paintball guns are a type of air weapon. The Home Office regard self-loading or pump action rifled airguns (including paintball guns) as outside the scope of the Firearms Act, unless they are sufficiently powerful to fall within the category of a "specially dangerous" air weapon. Paintball guns could be considered imitation firearms.
Unless an air weapon falls within one of the above exceptions, it is not subject to section 1 Firearms Act 1968.
Definitions of "Imitation Firearms", "Realistic Imitation Firearms" and "Readily Convertible Imitations"
An 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." section 57(4). This means that an offence requiring "possession" or "having with him/her" a firearm or imitation firearm requires a "thing" which is separate and distinct from a 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 parts is not a "thing". (R v Bentham  UKHL18.) R v Morris and King, 79 Cr. App. R. 104, CA: when considering whether a thing has the appearance of being a firearm the jury should consider its appearance at the time of the offence and should also be assisted by the evidence of the witness who saw the thing at the time of the offence.
Unlike with "Realistic Imitation Firearms", it is not always necessary to obtain evidence from the FSP on whether the thing is an imitation firearm. Evidence of the Firearms Officer will usually be sufficient expert evidence.
An imitation firearm will be treated as a firearm to which section 1 Firearms Act 1968 applies if:
· it has the appearance of such a weapon and
· it can be readily convertible into a weapon from which a shot, bullet or other missile can be discharged (section 1 (1) and 1 (2) Firearms Act 1968).
See readily convertible imitations elsewhere in this guidance
Realistic Imitation Firearms
From 1 October 2007, section 36 Violent Crime Reduction Act 2006 created an offence to manufacture, bring into or cause to be brought into Great Britain, or sell realistic imitation firearms. It also made it an offence to modify an imitation firearm to make it realistic.
Section 37 relates to specific defences: this allows persons in the course of trade or business to import realistic imitation firearms for the purpose of modifying them to make them non-realistic. It also provides various defences if the realistic imitation firearm was available for:
· a museum or gallery;
· theatrical performances and rehearsals of such performances;
· the production of films and television programmes;
· the organisation and holding of historical re-enactments; or
· crown servants.
The Violent Crime Reduction Act 2006 (Realistic Imitation Firearms) Regulations 2007 provide two further defences. The first is for the organisation and holding of airsoft skirmishing. This is defined by reference to ‘permitted activities’ and the defence applies only where third party liability insurance is held in respect of the activities. The second defence is for the purpose of display at arms fairs, defined in the regulations by reference to ‘permitted events’.
The Regulations also specify the persons who can claim the defence for historical re-enactment. This is restricted to those organising or taking part in re-enactment activities for which third party liability insurance is held.
For manufacturers, importers and vendors to claim one of the defences, they must be able to show that their conduct was for purpose of making realistic imitation firearms available for one of the reasons specified.
Section 38 defines a "realistic imitation firearm" as "an imitation firearm which has an appearance that is so realistic as to make it indistinguishable, for all practical purposes, from a real firearm". As a result of "real firearm" (defined in section 38 (7)) imitations of pre-1870 firearms are not caught by the offence.
Whether an imitation firearm falls within the definition of a realistic imitation firearm should be judged from the perspective of how it looks at the point of manufacture, import or sale and not how it might be appear if it were being misused. Section 38(3) provides that in determining whether an imitation firearm is distinguishable from a real firearm, its size, shape and principal colour must be taken into account.
It is worth keeping in mind that the intention behind this measure is to stop the supply of imitations which look so realistic that they are being used by criminals to threaten and intimidate others. If it is not a realistic imitation firearm it may still be an imitation firearm.
Readily Convertible Imitations
An imitation weapon will be treated as a firearm to which section 1 of the Firearms Act 1968 applies if:
· it has the appearance of such a weapon; and
· it can be readily convertible into a weapon from which a shot, bullet or other missile can be discharged (ss1(1) an 1(2) Firearms Act 1968).
"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).
In R v Bewley  EWCA Crim 1457, the Court of Appeal held that if an imitation firearm is to be treated as a firearm to which section 1 of the Firearms Act 1968 applies, the prosecution must prove that it can be readily converted so that it can discharge a shot, bullet or other missile. This reversed the previous understanding of case law (Cafferata v Wilson  All ER 149 and R v Freeman  54 Cr App 251), which required only that a weapon was designed or adapted to discharge such a missile, and that it could discharge a shot, bullet or other missile. Imitation firearms which can only be converted by the use of equipment or tools that are not in common use fall outside the definition of a firearm in section 57(1) Firearms Act 1968.
Prosecutors should ensure that:
· forensic evidence clearly addresses whether an imitation firearms is "readily convertible" and/or whether a partially reactivated firearm or its component parts can be test fired;
· where apparently complex or remote test firing procedures are used, it is clear why the procedure was used and whether the weapon could have been fired in a conventional manner;
· there is a consultation or a conference with the forensic expert if there is any misunderstanding or uncertainty regarding the status of the weapon;
· additional evidence is sought where it appears necessary to rebut the potential defence that the defendant did not know nor had reason to suspect the "readily convertible" nature of the weapon
· an offence of criminal use of an imitation firearm is considered when the evidence does not support an offence to sections 1 to 5 Firearms Act 1968.
However, 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, Section 1 (5) Firearms Act 1982. Once the defence have raised the issue of knowledge, it is for the defendant to prove a lack of knowledge (rather than for the prosecution to prove knowledge) to the civil standard (R v Williams  EWCA Crim 2162).
Classification of the Olympic BBM
There has been concern about the use of the Olympic BBM firearm in criminal circumstances. The police has received advice that the Olympic BBM blank firing weapon can be readily converted into a firearm capable of discharging ammunition and it therefore falls within the terms of the Firearms Act 1968. If such a case is referred, the prosecutor should satisfy themselves on the following questions:
1. Does the Olympic BBM firearm have the appearance of being a firearm to which section 1 of the Firearms Act 1968 applies (i.e. a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged, other than certain shotguns and air weapons)?
2. If yes is it so constructed or adapted as to be readily convertible into a firearm to which section 1 of the 1968 Act applies (i.e. it can be converted without any special skill and without equipment or tools other than such as are in common use by persons carrying out works of construction or maintenance in their own homes: section 1(1) (b) and (6) of the Firearms Act 1982).
3. If yes, any reference to a firearm in the 1968 Act shall be read as including the imitation firearm, and the 1968 Act shall apply in relation to the imitation firearm as it applies in relation to a firearm to which section 1 of the 1968 Act applies, with the exception of subsections 4(3) and (4), 16 to 20 and 47 (see subsections.1 (2), 2(1) and (2) of the 1982 Act). This means that the imitation firearm is to be treated as a "section 1 firearm" (i.e. a firearm to which section1 of the 1968 Act applies) for the purposes of (in particular) the offences under subsection 1(1) (possession, purchase or acquisition without a certificate) and subsection 3 (sale, etc. without being registered as a firearms dealer and/or without purchaser producing firearms certificate).
4. Does the imitation firearm fall have a barrel less than 30cm or overall length less than 60cm, and is not an air weapon, muzzle-loading gun or signalling apparatus: section 5(1)(aba) of the 1968 Act?
5. If yes, the imitation firearm is to be treated as a "section 5 firearm" i.e. a prohibited weapon to which section 5 of the Firearms Act 1968 applies, and it is an offence to possess, purchase or acquire, or manufacture, sell or transfer the imitation firearm without the authority of the Secretary of State, subject to the defence of lack of knowledge that the imitation firearm was readily convertible in section 1(5) of the 1982 Act.
Steps 1, 2 and 4 above are factual matters requiring expert evidence whilst steps 3 and 5 are the legal consequences which flow inevitably if those factual matters are proved.
De-activated Weapons and Antiques
If a weapon bears an approved house mark and has been certified in writing as de-activated, the item is presumed to be incapable of discharging bullets or shot. De-activated firearms are expressly excluded from the definition of realistic imitation firearm and are therefore not affected by the new realistic imitation offence: Section 8 Firearms (Amendment) Act 1988.
Section 58(2) of the 1968 Act exempts from the provisions of firearms legislation (including those provisions relating to certificate controls in sections 1 and 2 and prohibited weapons under section 5) all antique firearms which are sold, transferred, purchased, acquired or possessed as curiosities or ornaments.
It is a question of fact and not law as to whether a gun is an antique, or not (Richards v Curwen 65 Cr. App. R. 95). The case of R v Burke 67 (Cr. App. R. 220) states that it is for the Prosecution to prove that the firearm does not come within the ambit of section 58(2) and it is a matter for the jury to decide upon.
Prosecutors are reminded that even if a weapon is held to be an antique by virtue of its age and characteristics, the exemption will only be available if it is possessed or dealt with as an "ornament or curiosity".
There is no definition of "antique" in the legislation. There is Home Office Guidance on the issue which will assist prosecutors. Briefly summarised, the Guidance states that the following pre-1939 weapons will be classified as antiques:
· All muzzle-loading firearms
· Breech-loading firearms capable of discharging a rim fire cartridge other than .22 inch or .23 inch (or their metric equivalents), 6mm or 9mm rim fire
· Breech-loading firearms using ignition systems other than rim fire and centre fire (these include pin-fire and needle-fire ignition systems, as well as the more obscure lip fire, cup-primed, teat fire and base fire systems)
· Breech-loading centre fire arms originally chambered for one of the obsolete cartridges listed in Appendix 5 of the Guidance, and which retain their original chambering
· Shotguns and punt guns chambered for the following cartridges (expressed in imperial measurements): 32 bore, 24 bore, 14 bore, 10 bore (2 and 2 inch only), 8 bore, 4 bore, 3 bore, 2 bore, 1 bore, 1 1/4 bore and 1 1/2 bore, and vintage punt guns and shotguns with bores greater than 10. It also includes vintage (pre-1939) rifles in these bores.
The Guidance also states that old firearms which should not benefit from the exemption as antiques are set out below. The list is not exhaustive and there may be other types and calibres of firearms that should be considered "modern" rather than "antique":
· Shotguns and smooth-bored guns, including shot pistols, chambered for standard shotgun cartridges, 22 inch, 23 inch, 6mm and 9 mm rim fire cartridges unless otherwise specified in the list of obsolete shotgun chamberings in Appendix 5 of the Guidance.
· Rifles and handguns chambered for .22 inch, .23 inch, 6mm or 9mm rim fire ammunition;
· Revolvers, single-shot pistols and self-loading pistols which are chambered for, and will accept centrefire cartridges of the type .25, .30, .32, .38, .380, .44, .45, .450, .455 and .476 inch, or their metric equivalents including 6.35mm, 7.62mm, 7.63mm, 7.65mm, 8mm and 9 mm, unless otherwise specified in the list at Appendix 5;
· Modern reproduction firearms or old firearms which have been modified to allow the use of shotgun cartridges or cartridges not listed in Appendix 5;
· Weapons extensively modified after 1939;
· Signalling pistols chambered for 1 and 1 1/2 inch cartridges or 26.5mm/27mm cartridges;
· Pump-action and self-loading centrefire rifles, except those examples originally chambered for one of the obsolete cartridges listed in Appendix 5 of the Guidance and retaining their original chamberings. The latter may benefit from an exemption as antiques under section 58(2) of the 1968 Act (as amended).
Further information and assistance can be found in Chapter 8 and Appendix 5 of the Home Office Guidance on Firearms Law 2016.
However, it should be remembered that this is Guidance only and the bench or jury will always be directed that the issue as to whether a firearm is an antique is one of fact for them to determine.
Prosecutors may wish to take into account the following matters when faced with an antique weapon:
· Each case should be dealt with on its merits and evidence on classification of individual weapons should be sought from the appropriate Forensic Service Provider. The expert's evidence may include an indication as to whether the weapon could be classed as an antique but the surrounding circumstances as to the reasons for which the weapon is held are matters that do not call for expert's opinion, so should not be commented upon in any report.
· The age of the weapon is a key factor. UK law does not have a definitive date prior to which a weapon will be deemed to be an antique The Home Office Guidance suggests that possession of an antique firearm will only be lawful when it is of sufficient vintage and design so that it does not pose a realistic danger to public safety. Factors which may be taken into account include whether the weapon is a muzzle load (antique unless a reproduction) or centre fire (more likely to be used as a weapon whatever the age) are taken into account.
· The use to which a weapon has been (if not licensed) or could be put is vital. If the owner has fired the weapon, it remains an antique, but is no longer held as a curiosity or ornament and the exemption will not apply. It follows that a weapon held as a curiosity or ornament in the mistaken belief that it is an antique does not benefit from the exemption granted in Section 58(2).
· Similarly if any of the criminal use offences are alleged, then this is evidence that the weapon is not possessed as an ornament
· Other factors which may indicate whether the weapon is held as an ornament or curiosity include the location of the firearm, (firearms that are carried away from the home without good reason may be less likely to be held as ornaments than those found at home), whether it is hidden or concealed as opposed to displayed openly and evidence of other criminality that may be related to the firearm.
· Any account given by a suspect in interview and evidence obtained by the investigator, which undermines or supports that account.
· The exemption does not apply to ammunition, and the possession of live ammunition suitable for use with an otherwise antique firearm may indicate that the firearm is not possessed as a curiosity or ornament.
· Possession of the 'precursor' items used in home-assembly of ammunition (casings, bullets, powders, presses) and not illegal themselves may also be relevant circumstances, when considering if the exemption under S58(2) applies.
From 14 July 2014, it is an offence for a prohibited person (as defined by section 21 Firearms Act) to be in possession of an antique weapon and it is irrelevant whether it is possessed as a curiosity or ornament.
Transfer of Weapons
Section 3 of the 1968 Act creates an offence if, by way of trade or business without being registered as a firearms dealer he/she manufactures, sells, transfers, repairs, tests or proves any firearms or ammunition to which sections 1 and 2 applies; or a shotgun.
Section 31 Violent Crime Reduction Act (VCRA) 2006: this offence is committed where on or after 6 April 2007, a person who is not a registered firearms dealer sells or transfers an air weapon or exposes an air weapon for sale or has in his possession for sale of transfer.
Section 32 of the VCRA 2006 requires that air weapons sold or transferred to an individual by way of trade or business must now be done in person. This provision is modelled on the arrangements which already exist in section 32 of the Firearms (Amendment) Act 1997 for other firearms. This is subject to exceptions.
Section 35 of the VCRA 2006 creates a summary offence on or after 6 April 2007 where a person sells, buys or attempts to sell or buy a primer or empty cartridge case incorporating a primer. There are a number of exceptions as expanded upon in section 35(3) VCRA 2006.
Section 40 of the VCRA 2006 creates an offence for anyone aged under 18 to purchase an imitation firearm and for anyone to sell an imitation firearm to someone aged under 18.
It is ultimately for the courts to decide whether any item falls within this definition but clearly it applies to the purchase and sale of realistic imitation firearms. However, it also applies to non-realistic imitations which nevertheless have "the appearance of being a firearm". This could include some children's toys. Where a toy is considered to be an imitation firearm, the purchase will have to be made by a parent or other person aged over 18.
It is a defence if the seller can show that he had reasonable grounds for believing the purchaser to be 18 or over.
Section 4 of the Firearms Act 1968 creates an offence of shortening or converting a firearm. This is committed when:
· the barrel of a shotgun is shortened to a length less than 60.96 cm (24 inches) section 4 (1);
· for a non-firearms dealer to convert into a firearm anything which had appearance of being a firearm, but originally was incapable of discharging any missile through its barrel section 4 (3).
Possession of Firearms by Adults
The Firearms Act 1968 creates offences of:
· Section 1 - Possession of a firearm/specially dangerous air weapon and certain ammunition without a certificate.
· Section 2 - Possession of a "shotgun" without a certificate; NB: Shotguns can fall within various sections, see Evidence to Chargebelow.
· Section 5 - Possession of a prohibited weapon.
The above offences are subject to certain exceptions.
· Section 1(1) of the Firearms Act 1968 creates an absolute offence.
· The prosecution only has to show that the defendant knew he had something in his possession. It is irrelevant what he knew or thought it was (R v Hussain (1981) 72 Cr. App. R. 143; R v Waller Crim. L.R. 1991, 381; Sullivan v Earl of Caithness  62 Cr. App. R. 105).
· Possession is both proprietary and custodial (Distinction from "have with him" in criminal use offences) (Hall v Cotton and Treadwell  83 Cr. App. R. 257 DC).
Prohibited Weapons Defined by section 5 Firearms Act 1968 as Amended
It is an offence under section 5 to possess, purchase, acquire, manufacture, sell or transfer (without the authority of the Secretary of State) the weapons listed below. The weapons below are subject to the mandatory minimum sentence see Mandatory Minimum Sentences section below), but (for offences committed on or after 14 July 2014), the maximum sentences available are:
· For possession, purchase or acquisition - 10 years' imprisonment.
· For manufacture, sale of transfer - Life imprisonment.
Section 5(2A)(c) of the Firearms Act 1968 creates (from 14 July 2014) a new offence of possession for sale or transfer of an unauthorised firearm or ammunition, which will similarly carry a maximum penalty of life imprisonment.
· 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.
In connection with section 5(1)(af) Firearms Act 1968, prosecutors should consider the date D acquired the air weapon (the prohibition on the possession of certain air weapons under section 5(1)(af) came into force on 30 April 2004; the amendment of section 5(1) of the 1968 Act was made by section 39(3) Anti-social Behaviour Act 2003). Where a person was in possession of the air weapon before 30 April 2004, they would not be guilty of a section 5 offence, but would be guilty of a section 1 offence if there was no certificate (see Goldsborough  EWCA 1278).
In addition the following are also prohibited but are not subject to mandatory minimum sentences:
· Section 5(1)(b) any weapon of whatever description designed or adapted for the discharge of any noxious liquid gas or other thing. Generally stun guns or electric shock devices, CS gas not usually cattle prods but depends on type.
· Section 5(1A)(b) any rocket or ammunition not falling within paragraph (c) of subsection (1) of this section 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 paragraph (ae) of that subsection which is designed to be used with any rocket or ammunition falling within paragraph (b) above or with ammunition which would fall within that paragraph but for its being ammunition falling within paragraph (c) of that subsection;
· 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. For example expanding ammo, 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 - (i) any ammunition falling within any of the preceding paragraphs; or (ii) any ammunition which would fall within any of those paragraphs but for its being specified in subsection (1) of this section.
Criminal Use of Firearms
The Firearms Act 1968 creates offences of:
· Section 16 Possession of a firearm or ammunition with intent to endanger life.
· Section 16A Possession of a firearm or imitation with intent to cause fear of violence.
· Section 17(1) Using a firearm or imitation to resist or prevent lawful arrest of himself or another.
· Section 17(2) Possessing a firearm or imitation whilst committing certain offences which are set out in Schedule 1.
· Section 18 Carrying a firearm or imitation with intent to commit an indictable offence or to resist arrest or prevent the arrest of another.
· Section 19 Carrying a loaded shot gun, 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 in a public place without lawful authority or reasonable excuse. Possession of an air weapon or an imitation firearm in a public place (section 19 Firearms Act 1968) is triable summarily only (see Schedule 6) and carries a maximum sentence of 6 months' imprisonment prior to 1 October 2007. After that date section 41(1) Violent Crime Reduction Act 2006 increases the penalty for possession of an imitation firearm but not an air weapon to 12 months and makes the offence triable either way.
· Section 20 Entering a building or part of a building as a trespasser without reasonable excuse whilst having with him a firearm or imitation. Distinguish possession from "having with him" (R v Kelt  3 All ER 1099) (R v Pawlicki  3 All ER 92) (R v Bradish & Hall  EWCA Crim 1340).
· Section 21 Possession of a firearm by persons previously convicted of crime.
Prosecutors should check to see if a defendant commits an offence under section 21 Firearms Act 1968 whenever a firearm or ammunition is involved. A person commits such an offence if:
· He has possession, of any class of Firearm (except imitations and deactivated weapons), or any ammunition, including shot gun and air weapon ammunition. From 14 July 2014, prohibited persons will commit an offence if they are in possession of antique firearm, irrespective of whether it is possessed as a curiosity or an ornament.
· At the time of possession has been previously convicted of any offence and was sentenced to a term of imprisonment (including detention in a Youth Offender Institute (YOI) and Detention and Training Order (DTO).
· If the sentence was 3 years or more the prohibition is for life.
· If between 3 months and 3 years and is in possession within 5 years of release.
· This section does not apply to those sentenced to a Hospital Order.
· (From 14 July 2014) a person who is sentenced to a period of imprisonment of 3 months or more whose sentence is suspended is prohibited for a period of 5 years commencing on the second day after the sentence was imposed. (Persons in possession of a firearm on a certificate on 14 July 2014 are entitled to continue to hold the firearm until the period of the certificate expires)
· The release papers include an acknowledgement of this requirement. This offence should attract a consecutive sentence, although in practice it is usually concurrent and treated as an aggravating feature of the other offence. A memorandum of conviction or certificate of conviction and a signed copy of the release form should be obtained.
Section 28 of the Violent Crime Reduction Act 2006 creates an offence of using another person to mind a dangerous weapon on or after 6 April 2007. The offence is committed where a person uses another to look after, hide or transport a dangerous weapon for him and he does so under arrangements or in circumstances that facilitate or are intended to facilitate the weapon's being made available to that person for an unlawful purpose (section 28(1)).
A dangerous weapon is defined by section 28(3) as "a firearm other than an air weapon or a component part of or accessory to an air weapon or a weapon to which section 141 or 141A of the Criminal Justice Act 1998 applies (specified offensive weapons, knives and bladed weapons)".
Section 28(2) states that a weapon is to be regarded as being available for an unlawful purpose where the weapon is available for him to take possession of it at a time and place and his possession of the weapon at that time and place would constitute or be likely to involve or lead to the commission by him of an offence. This provision is intended to cover cases in which:
· Mere possession would be an offence e.g. because the weapon is a prohibited weapon or is a firearm and the person taking possession is legally prohibited from possessing a firearm because he does not have a license as required by section 1 of the Firearms Act 1968 or because he is disqualified from possession under section 21 Firearms Act 1968 and;
· The person was intending to commit an offence with the weapon in future;
· This does not preclude other "arrangements or circumstances" from facilitating or intending to facilitate the availability of the weapon for an unlawful purpose.
Prosecutors should note that the evidential requirements of section 28 Violent Crime Reduction Act 2006 may be harder to satisfy than those of simple possession under sections 1, 2 or 5 Firearms Act 1968.
Sections 23(1) and (4) of the Firearms Act 1968 made it an offence to fire an air weapon beyond the boundary of premises. However, prior to 1 October 2007 the offences were limited to young persons and to the adults supervising them. Section 34 of the VCRA 2006 replaces the existing offences for young people with a new offence for anyone of any age to fire an air weapon beyond the boundary of premises. The offence relating to adults supervising young persons is preserved.
The Act also creates a number of offences in relation to the making and revocation of certificates, the controlling of transactions in firearms and in respect of police powers - sections 26, 29, 30, 38-42 and 47-49.
Acquisition and Possession of Firearms and Air Weapons by Minors
Sections 22 - 25 - Possession by and supply to minors and drunk/insane persons.
Sections 22 and 24 were amended by section 33 of VCRA 2006 so as to increase age limits in a number of offences:
Section 22(1) - Purchase or hire of any firearm or ammunition by a person under 17. From 1 October 2007, the age limit is raised to 18.
Section 22(1A) - Use of a firearm by a person under 18 for a purpose not authorised by the European weapons directive.
Section 22(2) - Possession of any firearm or ammunition to which section 1 applies by a person under 14.
Section 22(3) - Person under 15 having an assembled shotgun except while under the supervision of a person aged 21 or over, or while the shotgun is so covered with a securely fastened gun cover that it cannot be fired.
Section 22(4) - Person under 17 having an air weapon or ammunition for an air weapon unless supervised by a person aged 21 or over. From 1 October 2007, the age limit is raised to 18.
Section 24(1) - Selling or hiring an air weapon to a young person. From 1 October 2007, the age limit is raised to 18.
Section 24(4) - Making a gift of an air weapon or parting with possession of an air weapon. From 1 October 2007, the age limit is raised to 18.
Section 24ZA - A person in possession of an air weapon failing to take reasonable precautions to prevent any person under the age of 18 having the weapon with him (from 10 February 2011).
Importation of Firearms
Section 170(1) of the Customs and Excise Management Act 1979 (CEMA) makes it an offence for any person to:
knowingly acquire possession of any of the following goods:
goods which have been unlawfully removed from a warehouse or Queen's warehouse;
goods which are chargeable with a duty which has not been paid;
goods with respect to the importation or exportation of which any prohibition or restriction is for the time being in force under or by virtue of any enactment; or
is in any way knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any such goods, and does so with intent to defraud Her Majesty of any duty payable on the goods or to evade any such prohibition or restriction with respect to the goods he shall be guilty of an offence under this section and may be detained.
Section 170(2) of CEMA 1979 covers the import "smuggling" offence in so far as a person knowingly concerned in the fraudulent evasion or attempted evasion relating to goods (namely firearms) that are subject to any "prohibition or restriction". The prohibition upon the importation of firearms is contained in Article 1 of the Import of Goods (Control) Order 1954 (SI 1954/23) which was made under section 1 of the Import, Export and Customs Powers (Defence) Act 1939.
For the offences set out at sections 170(1)(iii), 170(1)(b) and 170(2)(b), knowledge of the prohibition or restriction (demonstrated through, for example, hiding the goods or mis-describing them on any declaration) is required as well as knowledge of what is being imported (for example, knowledge that the item is a stun gun, albeit disguised). Section 170(5) CEMA provides: In any case where a person would, apart from this subsection, be guilty of -
an offence under this section in connection with a prohibition or restriction; and a corresponding offence under the enactment or other instrument imposing the prohibition or restriction, being an offence for which a fine or other penalty is expressly provided by that enactment or other instrument, he shall not be guilty of the offence mentioned in paragraph (a) of this subsection.
Prosecutors should, in the first instance, consider charging the Firearms Act offence. However, if for any reason the Firearms Act offence is not made out, section 170 CEMA should be charged.
Code for Crown Prosecutors - Considerations
A prosecution will generally be required in the public interest because of the risk to public safety. However, where a youth has committed an offence involving an air weapon, prosecutors should consider diversion, according to the gravity of the offence and the principles of the reprimand and final warning scheme.
A prosecution may not be required where the contravention is technical and there has been no risk to public safety and the offence resulted from an oversight or misunderstanding. Guidance issued to the police in connection with certain aspects of firearms legislation can be found on the Home Office website.
There may be occasions when a defendant has committed a firearms offence in conjunction with a public order offence. As to the level of charging, refer to Public Order Offences incorporating the Charging Standard.
The public interest will almost always require a prosecution whenever there is sufficient evidence to show that an adult has committed a firearms offence.
However, there may be occasions when the public interest will be satisfied by action short of prosecution. These will usually relate to the physical or mental health of the defendant or victim.
Administrative and genuine errors resulting in inadvertent breach may be suitable for cautioning or informal action, e.g. using lead shot on water fowl or shooting without a game licence where a genuine error as to species has been made.
Whenever there is sufficient evidence to charge a youth with a firearms offence, prosecutors should consider whether the youth is eligible for a youth caution or youth conditional caution. A youth specialist should be consulted and the youth referred to the police for diversion where the public interest does not require a prosecution.
Evidence to Charge
A firearm or suspected firearm should always be recovered by a trained firearms officer, who should exhibit each and every weapon, component part and item of ammunition stating where each item was found.
The Firearms Officer should provide a full description of each item found, including measurements, where relevant. The length of the barrel of a firearm shall be measured from the muzzle to the point at which the charge is exploded on firing (section 57(6) Firearms Act 1968). Measurements will be particularly relevant where:
The weapon is a shotgun as the dimensions of the barrel and bore will determine whether it is a firearm for the purposes of section 1, 2 or 5;
· The firearm is a prohibited weapon as defined by section 5(1)(aba) see above;
· The firearm is a prohibited weapon as defined by section 5(1)(ac) see above; and
· The firearm is a shortened shotgun for the purposes of section 4(4) see above.
Each weapon and component part should be photographed alongside a scale to indicate dimensions, and copies provided to the CPS. Courts would expect to have at least a photograph of the weapon for sentencing purposes, so the timely provision of photographs may also avoid the need for the weapon and the accompanying officer to come to court.
Where the Firearms Officer is able to identify the weapon, component part or ammunition they should do so and indicate which offence(s) appear to have been committed.
The Firearms Officer should state whether the weapon was loaded or not.
Where the Firearms Officer is able to confirm that the weapon is an imitation firearm, they should do so. They should also indicate how closely it resembles a real firearm, based on their own knowledge of firearms. Again photographs may be of assistance. It is also important to determine the circumstances surrounding the possession and use of an imitation weapon.
A full statement from a Firearms Officer will usually be sufficient for air weapons and straightforward shotgun offences. However, where the Firearms Officer suspects that the air weapon is "specially dangerous" and is therefore a firearm for the purposes of the Act, the air weapon should be submitted to Forensic Science Provider (FSP) for the question to be answered. Further, where an air weapon is used in such circumstances that if its muzzle energy exceeds 1 joule (section 57(1B) Firearms Act 1968), consideration should be given to proceeding upon the basis that it is a firearm, and not an imitation or air weapon alone, then it should be submitted for forensic testing to confirm the muzzle energy.
Where offences contrary to section 1 or section 5 Firearms Act 1968 (other than straightforward shotgun and air weapon offences, referred to above) appear to have been committed, a forensic report from a FSP or a firearms expert from a United Kingdom Accreditation Service (UKAS) accredited police force will always be needed for classification purposes.
Prosecutors should not accept guilty pleas unless there is formal evidence as to the nature of the firearm.
However, in many cases a remand in custody will be sought, and the lawyer giving advice will apply the threshold test and may have to rely on the opinion of a Firearms Officer, Force Armourer or a preliminary report from a FSP as to the nature of the firearm. Where such preliminary advice is given, the prosecutor must ensure the proper completion of a Form MGFSP identifying the forensic issues that need to be addressed, the classification of the weapon and any relevant timescales, in accordance with any local tripartite protocol.
Whenever a person has been charged with an indictable only offence, all firearms, weapons, component parts and ammunition should be submitted to the FSP with a request for a report. It will always be essential to determine the category of such items. The prosecutor and the police should identify other relevant forensic lines of enquiry, which may include:
· Quasar testing;
· Fingerprint analysis;
· DNA testing;
· Forensic Discharge Residue (FDR) on clothing and swabs;
· Compatibility of firearm with any ammunition recovered;
· Nature of any "noxious liquid, gas or other thing"; and
· NABIS submission and analysis (from April 2008).
Some of these enquiries can be carried out independently of the tests needed to classify the item, e.g. ballistics analysis need not delay submission of a report to the police/CPS about classification. The prosecution should have regard to timescales likely to be set by the court for service of evidence and the arrangements for staged reporting, including any local tripartite protocol.
Choosing the Charge
Overlaps can occur between the various more serious offences of possessing/using firearms for crime outlined above. It is important that the indictment is not unnecessarily overloaded and reflects the overall gravity and nature of the offence. Prosecutors should select charges that reflect the seriousness and extent of the offending behaviour and give the court adequate sentencing powers. Prosecutors should be familiar with the sentencing guidelines given by the Court of Appeal (CA) in R v Avis  1 Cr. App. R. 420 (see sentencing below).
Where a firearm offence is disclosed in addition to another substantive offence, a suitable count should always be included on the indictment so that:
· The issue of whether or not a firearm was used can be determined by the jury if necessary. A defendant is entitled to a jury decision on this issue: (Eubank (2001) EWCA Crim 891);
· The court has the power to impose the appropriate sentence;
· Although it is not mandatory for a court to pass a consecutive sentence (AG Ref Nos 21 and 22 R v Hahn and Webster (2004) 2 Cr. App. R. (S.) 13, CA), courts may do so to mark the seriousness of such behaviour and as a deterrent: (R v Greaves and Jaffer (2004) 2 Cr. App. R. (S.) 10 CA);
· Robbery where at some time during the commission of the offence the offender had in his possession a firearm or an imitation firearm is a serious offence for the purposes of section 109 (5) (h) Powers of Criminal Courts (Sentencing) Act 2000. Section 109 requires a life sentence to be imposed on conviction of a second serious offence committed as an adult. Section 109 (5) (h) will only be held to apply if the defendant has admitted before the court that he had a firearm in his possession during the robbery, or if the jury return a specific verdict establishing that fact (R v Hylands (2004) WWCA (Crim) 2999 CA);
· Where the weapon in question is not recovered, and thus its status remains unknown, it is not duplicitous to include the phrase "firearm or imitation firearm" in a count under sections 17 or 18 of the 1968 Act.
There may be an overlap between an offence contrary to section 1 or section 2 and section 19 Firearms Act where a person with a firearm or loaded shotgun for which no certificate is held is in a public place. The following factors should be taken into account when determining the appropriate charge:
· Section 1, section 2 and section 5 are offences of strict liability;
· Section 19 provides a defence of "lawful authority or reasonable excuse" for possession;
· Section 1 and section 2 are triable either way with a maximum penalty of 5 years;
· Section 19 is triable either way but carries a maximum penalty of 7 years;
· Section 1 and section 2 do not require the weapon to be loaded. No certificate is required for possession of shotgun cartridges; and
· Section 19 requires the shotgun to be loaded or for there to be possession of a firearm and suitable ammunition.
There will be occasions, less common with the passage of time, when the appropriate sentence and need for mode of trial will vary depending on whether the offence was committed before or after 22 January 2004 and the implementation of the minimum sentence provisions. This will occur when the only evidence of possession is of fingerprints or DNA without any other circumstance to determine when the possession took place. To reflect the different penalties that apply charge possession in the alternative as being before 22 January 2004 and after 21 January 2004. This is sufficient to provide an indictable only offence and if the matter goes to trial to allow a jury to determine that issue.
Consideration should always be given to the merits of charging an offence contrary to sections 16, 16A, 17 or 18 Firearms Act 1968. All the circumstances surrounding the incident should be considered, with particular regard to the following factors:
· Admissions or explanation given by the defendant in interview;
· Whether the weapon was real;
· Whether the weapon was loaded;
· The imminence of any probable use;
· Whether the victim or any other person present believed that the weapon was real; and
· whether the subject was in possession (constructive or otherwise) of relevant ammunition, whether loaded or not
In relation to the offence under section 16, the prosecution do not need to prove an immediate or unconditional intention to endanger life, but the intention required for section 16 may not necessarily be met by the recovery of a loaded weapon. Any explanation given in interview and the surrounding circumstances should be carefully considered to determine whether an inference could be drawn. Prosecutors should note that Section 16 offences can only be committed with a real firearm. Consideration should be given to an attempt where the defendant expresses a belief that the weapon was a real firearm.
Section 16 also makes it an offence to possess a firearm "with intent to enable another person to endanger life". This requires proof that the possessor intends life to be endangered, although it is sufficient if the intent is that the firearms or ammunition should be used in a manner which endangers life as and when the occasion requires. In R v Jones (IF)  1 Cr. App. R. 46, it was held that enabling the other person meant more than giving that other the opportunity to endanger life, should he wish to do so. As such, the offence is not made out simply because the possessor intended to supply the firearms or ammunition to persons who happened to be criminals. However, prosecutors should look at all of the surrounding circumstances of the cases to see if there is sufficient evidence that would enable a jury to infer that the possessor knew that the ultimate recipient, whoever that might be, would use the firearms or ammunition in a manner that would endanger life. Factors that might be sufficient include: the nature of the firearm and ammunition in question, the circumstances in which they came to be in possession of the items, the circumstances in which they are found and whether there is evidence to suggest that they are part of a larger criminal enterprise - see R v Clarke and Opoku  EWCA 12.
Section 16A may be more appropriate where the necessary intent for section 16 cannot be proved, as the intent to cause another to believe that unlawful violence will be used, is more readily inferred. Section 16A can be used where the firearm is an imitation.
There is some overlap between charges under section 17 and 18.
Section 17(1) requires "use" or "attempt to use" a firearm or imitation firearm with intent to resist arrest.
Section 17(2) requires "possession" of a firearm or imitation firearm at the time of commission or arrest for a Schedule 1 offence.
It is subject to a defence of "lawful possession".
Section 18(1) covers the same intention, but at an earlier stage and refers to "any indictable" offence. It requires "having with him" a firearm or imitation firearm.
The addition of one of these charges, where appropriate, could resolve the question of venue prior to receipt of any forensic evidence. These offences are "serious specific offences" for the purposes of sections 224 to 229 Criminal Justice Act 2003. A person convicted of such an offence committed after 4 April 2005 must be sentenced to a life sentence or indeterminate imprisonment for public protection if the court is satisfied that there is a significant risk to members of the public of serious harm occasioned by the commission of further specified offences. An extended sentence is also available where a youth is so convicted.
Whenever a prohibited weapon is used in the commission of any offence, committed prior to 6 April 2007, an additional charge contrary to section 5 should also be preferred. This will require the court to impose the minimum sentence (AG Reference No 114 of 2004R v Stephen McDowell (2004) See Sentencing below for offences post 6 April 2007.
Note on Disguised Weapons
Firearms which are disguised as another object (such as stun guns disguised as torches or mobile phones or other innocent objects) are prohibited weapons contrary to section 5(1)(b) and 5(1A)(a). The latter attracts a mandatory minimum sentence; the former does not.
Where a stun gun is disguised prosecutors should always charge section 5(1)(b) unless any significant aggravating feature, as identified by R v Avis  1 Cr. App. R. 420 CA is present. The factors in Avis are:
· What (if any) use has been made of the firearm?
· With what intention (if any) did the defendant possess or use the firearm?
· What is the defendant’s record?
R v Sheen and Sheen  2 Cr. App. R. (S.) 3 adds two further questions to be considered, namely:
· Where was the firearm discharged and who and how many were exposed to danger by its use?
· Was injury or damage caused by the discharge of the firearm and how serious was it?
Unless a significant aggravating feature is present, the mandatory minimum sentence may be arbitrary and disproportionate. Where section 5(1)(b) is charged, the Court may still pass a significant sentence. However, it can exercise its discretion at sentence where there is an absence of aggravating features which do not merit charging an offence attracting a mandatory minimum sentence.
Prosecutors should note that where a stun gun is disguised as another weapon, section 5(1)(b) should be charged, absent any use or intended use of the stun gun, or the commission or alleged commission at the same time or recently of other relevant offences’.
The firearms expert will classify the weapon as a firearm and may flag up that it has the potential to be a disguised weapon. However, the question of whether the weapon is, in fact, disguised is a question of fact and interpretation for the court and prosecutors will need to ensure that they have a detailed description of the weapon on file and a photograph may also assist. The fact that the disguised stun gun in question is of limited power is not a reason for charging the lesser offence - R v McCarthy  EWCA Crim 2500.
Note on dual purpose objects
Prosecutors should be alert to the defence contention that an object has a dual purpose and, therefore, is not a disguised firearm.
Where a case involves a dual purpose object (for example, a combined torch and stun gun), unless it is immediately apparent that an object contains a firearm, then it is a disguised weapon and should be charged as such, (section 5(1)(b) Firearms Act 1968), unless aggravating factors are present meriting a Section 5(1A) charge. Failure to do so would deprive the judge of all available sentencing options, including the minimum sentence.
Prosecutors should liaise with the officer in connection with a defendant's basis of plea in all cases involving objects described as 'dual purpose'. (See Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise).
Summary proceedings for certain offences under the Firearms Act 1968 may be instituted within 4 years of the offence. However, if commenced more than 6 months after the offence DPP consent is required, refer to the section on Consents to Prosecute for further guidance.
Usually, offences contrary to sections 1 and 2 Firearms Act will be suitable for summary trial, where there has been a technical, inadvertent or minor breach of licence conditions or where the firearm has remained on private property.
Possession etc. of weapons "designed or adapted for the discharge of any noxious liquid, gas or other thing" contrary to section 5(1)(b) remains an either way offence and will usually be preferred where the weapon is a stun gun or CS spray. Case law suggests offences of straightforward possession of these items will normally remain in the Magistrates' Courts, refer to Sentencing below.
Trial on indictment will be more appropriate where:
· the weapon was real as opposed to an imitation;
· the weapon was used;
· the weapon was visible in a public place;
· the firearm was loaded;
· the weapon was used or produced whilst committing another offence;
· the defendant was in possession of more than one weapon;
· damage, injury or fear of injury was intended or caused;
· the weapon was carried for self-defence;
· the weapon was intended for unregistered sale or transfer;
· the weapon was recovered in connection with drug dealing, gang association or any other organised criminal activity; and
· the weapon was a sawn off shotgun (falling short of a prohibited weapon).
The leading firearms sentencing case is R v Avis (1998) 1 Cr. App. R. 420, the CA said that some of the sentences imposed in the past for firearms offences had been too lenient. Lord Bingham CJ said that the courts should treat offences under the Firearms Act as serious as there was a clear need to discourage the unlawful possession and use of real and imitation firearms and to give effect to Parliaments intention expressed by the continuing increase in maximum penalties for firearms offences.
Offences contrary to sections 1(1), 2(1), 3, 4, 5 (1A), 16, 16A, 17 (1) and (2), 18 (1), 19 and 21 (4) would generally warrant custodial sentences, even where the offender pleaded guilty and had no previous convictions unless the offence was a minor infringement that was tried summarily.
Offences contrary to sections 4, 5, 16, 16A, 17(1) and (2), 18 (1), 19 or 21 would attract a considerable custodial sentence and, where the answers to the following questions are adverse to the defendant, a sentence at or approaching the maximum in a contested case.
The sentencing court should usually ask itself four questions:
· What sort of weapon was involved? Genuine weapons are more dangerous than imitations, loaded firearms than unloaded, unloaded for which ammunition is available than those for which none is available. Possession of a firearm which has no lawful use, such as a sawn off shotgun, is more serious than possessing a firearm capable of lawful use;
· What use, if any, was made of the firearm? The more prolonged, premeditated and violent the use, the more serious the offence is likely to be;
· With what intention, if any, did the defendant possess the firearm? The more prolonged, premeditated and violent the use, the more serious the offence is likely to be;
· What is the defendant's record? The seriousness of any firearms offence is increased if there is an established record of committing such offences or crimes of violence.
R v Wilkinson and others (2009) EWCA Crim 1925 (16 October 2009) reaffirmed the principles as applied in Avis and others:
It is further emphasised that the specified minimum terms are 5 years' imprisonment where the offender was 18 years or over at the date of conviction and, in accordance with section 289 of the Criminal Justice Act 2003, 3 years' detention under section 91(A) of the Powers of Criminal Courts (Sentencing) Act 2000 for an offender aged at least 16 but under 18 years. Whilst conceding that these provisions do not arise to be directly considered in this judgement R v Wilkinson does stress that where there is an intention to impose a shorter sentence than the prescribed minimum use of this must be "exceptional". "It is nevertheless necessary to focus attention on the importance of these provisions and their intended impact for sentencing in cases involving gun crime even at a lower level of seriousness than those which arise in the present case. They confirm, if confirmation were needed, that possession of a firearm, without more, and without any aggravating features beyond the fact of such possession, is of itself a grave crime, and should be dealt with accordingly."
The case goes on to emphasise, "Criminals who are prepared to deal in such lethal weapons invariably represent a serious public danger, and it cannot be assumed that the danger they represent will have dissipated when the determinate element of their sentences has been completed. We therefore supplement the guidance in Avis and others by emphasising that for criminals involved in this level of gun crime along with very lengthy determinate sentences, indeterminate sentences, whether discretionary imprisonment for life or IPP, inevitably arise for consideration."
Mandatory Minimum Sentences (Prohibited Weapons)
Mandatory minimum sentences apply to most section 5 offences and were introduced by section 287 of the Criminal Justice Act 2003, which inserted a new Section 51A into Firearms Act 1968. (Sections 5(1)(a), 5 (1) (ab), 5 (1) (aba), 5 (1) (ac), 5 (1) (ad), 5 (1) (ae), 5 (1) (af), 5 (1) (c) and 5 (1) (A) (a) see prohibited weapons above)
The court will consider the effect of mitigation and only in "exceptional circumstances" will the judge depart from the minimum sentence (R v Jordan, Alleyne and Redfern  EWCA Crim 3291).
Exceptional circumstances may relate to the offence and/or the offender, and the court should take a holistic approach and consider all the circumstances involved (R v Rehman  1 Cr. App. R. (S.) 77).
The mandatory sentence applies where:
· The offence listed above was committed on or after 22 January 2004 and the offender was aged 16, 17 or over 21 years of age when the offence was committed; or
· The offence was committed on or after 28 May 2007 when the offender was aged 16 or over and is aged 18, 19 or 20 at the date of conviction.
The intention of the legislature was for the mandatory sentence to apply to all offenders who had attained the age of 16 when the offence was committed.
However, the mandatory minimum sentence does not apply to offenders who committed the offence before 28 May 2007 and were aged 18, 19 and 20 on the date of conviction. This is because offenders of this age are sentenced to detention in a young offender institute and this falls outside the definition of imprisonment in section 51 A Firearms Act 1968 (R v Campbell  EWCA Crim 726).
The Firearms (Sentencing) (Transitory Provisions) Order 2007 inserts a new paragraph 51 A(4)(a) Firearms Act 1968 and makes changes to the meaning of "appropriate custodial sentence" with the effect that 18 - 20 year olds are subject to the mandatory minimum sentence. The Order is in force from 28 May 2007, and applies only to offences committed on or after that date.
The mandatory minimum sentence is 5 years' imprisonment for an offender aged 21 or over and 5 years' detention in a young offender institute for those aged 18, 19 and 20 at the date of conviction. Offences that attract the minimum sentence are triable only on indictment (Section 288 Criminal Justice Act 2003, which also amends Schedule 6 to the Firearms Act 1968).
Sixteen and 17 year olds are subject to a mandatory minimum sentence of 3 years and so the case must be committed to Crown Court for trial. The youth court has no jurisdiction to try such cases (section 24(1B) Magistrates Courts Act 1980).
The MMS sentence is not to be reduced for a guilty plea.
The fact that a weapon is of limited power is not considered to be an exceptional circumstance for departing from the MMS - see R v McCarthy  EWCA Crim 2500.
Sections 29 and 30 of the Violent Crime Reduction Act 2006 extends the mandatory minimum sentence to the following offences committed on or after 6 April 2007, where the firearm used is a prohibited weapon that itself attracts a Mandatory Minimum Sentence:
· Section 16 Firearms Act 1968 (possession of firearm with intent to injure);
· Section 16A Firearms Act 1968 (possession of firearm with intent to cause fear of violence);
· Section 17 Firearms Act 1968 (use of firearm to resist arrest);
· Section 18 Firearms Act 1968 (carrying firearm with criminal intent);
· Section 19 Firearms Act 1968 (carrying a firearm in a public place);
· Section 20(1) Firearms Act 1968 (trespassing in a building with a firearm); and
· Section 28 Violent Crime Reduction Act 2006 (using another person to mind a dangerous weapon).
Section 29 Violent Crime Reduction Act 2006 sets out the penalties for offences under section 28, which differ according to the nature of the "dangerous weapon". Where the weapon is a prohibited weapon mentioned in section 5(1) (a) to (af), (c) and 5(1A)(a) of the Firearms Act 1968, the maximum sentence is 10 years' imprisonment for a person aged 16 or over at the time of the offence (section 28 (3)). In such cases, there is also a mandatory minimum sentence of:
· 3 years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 where the offender is aged 16 or 17 at the time of the offence and under 18 at the date of conviction(section 29(3) b) and section 29(6));
· 5 years' imprisonment for offenders aged 18 or over at the time of conviction. Section 29 (5) makes express provision for offenders aged 18 to 20 inclusive to receive the mandatory sentence, by requiring a reference to a sentence of imprisonment to include a sentence of detention in a young offender institute.
Where the weapon is a firearm, the maximum sentence on conviction is 5 years' imprisonment or a fine or both (section 29 (10)).
It shall be an aggravating feature where a person aged 18 or over uses a person under 18 to mind the weapon, and such a finding must be stated in open court as an aggravating feature, section 29(11) and section 29(12).