Section 19 Firearms Act 1968
Date Updated: January 2012
Title: Firearms
Offence: A person commits an offence if, without lawful authority or reasonable excuse (the proof whereof lies on him) he has with him in a public place
- 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.
Legislation: section 19 Firearms Act 1968
Commencement Date: amended 20 January 2004
Mode of Trial: TEW/SO see below
Statutory Limitations & Maximum Penalty:
- Imitation and air weapons summary only 6 months
- On summary conviction, six months or a fine of the prescribed sum, or both.
- On indictment, seven years (12 months where the weapon is an imitation firearm), or a fine, or both: 1968 Act, s.51, and Sched. 6 (as amended by the VCRA 2006, s.41(1)(b)).
- Section 41(2) of the 2006 Act provides that an offence under section 19 in respect of an imitation firearm which is triable either way by virtue of section 41(1) is to be treated as an offence to which section 282(3) of the CJA 2003 (increase in maximum sentence on conviction of an either way offence) applies, and as not being an offence to which section 281(5) of that Act (increase of maximum sentence on conviction of summary only offence) applies; and, so far as this subsection relates to section 282(3) of the 2003 Act, it does so only in respect of offences committed after the commencement of that subsection (s.41(3)(b)).
- From 6 April 2007, VCRA 2006 s30(2)(b)(iii) imposes a minimum term in accordance with s51A FA 1968 if the weapon used is prohibited under 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or section 5(1A)(a) of the FA 68
Relevant sentencing Guidelines
R v Avis [1998] 1 Cr.App.R. 420, CA.
The sentencing court should usually ask itself four questions:
- What sort of weapon was involved? Genuine firearms were more dangerous than imitation firearms; loaded firearms were more dangerous than unloaded firearms. Unloaded firearms for which ammunition was available were more dangerous than firearms for which no ammunition was available. Possession of a firearm for which there was no lawful use (such as a sawn-off shotgun) would be viewed more seriously than possession of a firearm which was capable of lawful use.
- What use had been made of the firearm? It was necessary for the court to take account of all the circumstances surrounding the use of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence was likely to be.
- With what intention (if any) did the defendant possess or use the firearm? The most serious offences under the Act required proof of a specific intent. The more serious the act intended, the more serious the offence.
- What was the defendant's record? The seriousness of any firearms offence was inevitably increased if the offender had an established record of committing firearms offences or crimes of violence.
In addition, where there are offences of s19 committed, the custodial term is likely to be of considerable length and where the four questions cited above yield answers adverse to the offender, terms at or approaching the maximum may, in the event of a trial, be appropriate
Relevant Sentencing Case Law
R v Fatinikun [1999] 1 Cr.App.R (S) 412
D aged 19, pleaded guilty before a Magistrates' court to possessing a Class B drug, cannabis, two charges of having a loaded firearm in a public place, one charge of possessing ammunition without a certificate and one of possessing a firearm when a prohibited person. The appellant went to a nightclub where he was searched by a doorman who refused him entry. The appellant was seen by police officers, and ran away; they chased and caught him, and found that he had a bag of cannabis and some .22 bullets. D's car was searched, and two pistols, each loaded, were found. Sentenced to a total of six years' detention in a young offender institution, consecutive to an order under returning him to custody for four months of an earlier sentence.
The maximum sentence for the principal offences was seven years, and the sentence of six years did not make adequate allowance for plea. The sentence of six years' detention in a young offender institution was excessive; sentences of four years would be substituted, to run consecutively to the order for return in respect of the earlier sentence.
Rattigan [2005] 2 Cr.App.R (S) 369
D appealed against a sentence of 15 months' imprisonment imposed for an offence of having an imitation firearm in a public place. D had encountered two other people known to him including a young girl (F) and 15 year old boy (B) and had asked B to feel his back. B had done so and had felt the handle of a gun. D had then shown B the gun in his waistband. B had asked whether it was a "BB gun" and D had replied ambiguously. B, D and F had then gone into F's house and D had put the gun under a top on the sofa. Later that day, F's brother called the police and armed police officers arrested D as he was leaving the house. They were told immediately that the weapon was an imitation firearm. D's psychiatric report indicated that he had some mental and behavioural disorders from abuse of cannabis and alcohol. He had a number of previous convictions for dishonesty and drug offences.
Held, all offences involving firearms, whether real or imitation, were serious and likely to lead to a sentence of imprisonment. The possession of an imitation firearm was capable of causing a danger by the reaction of others, who might not appreciate that it was imitation. In the instant case, the police had been told at an early stage that the gun was imitation, D had been in possession of it only since the previous day and he had not brandished it in public. D's mental difficulties were also taken into consideration. Having regard to all the circumstances, the sentence was manifestly excessive and was reduced to 10 months' imprisonment,
Ancillary Orders:
- Forfeiture orders
- Destruction orders
