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Firearms

Updated: 29 July 2020; Updated 24 March 2021|Legal Guidance

Definitions of Firearms and Air Weapons

Firearms

Section 125 of the Policing and Crime Act 2017, most of which came in to force on 2 May 2017, amends subsection 57(1) of the Firearms Act 1968 to update the definition of "firearm" as being:

  • lethal barrelled weapon, as defined under new subsection 57(1B);
  • a prohibited weapon (as defined under section 5(2) of the 1968 Act - no change);
  • a relevant component part in relation to a lethal barrelled weapon or a prohibited weapon, which is a component part listed in new subsection 57(1D) and can be used as a part of a lethal barrelled weapon or prohibited weapon; 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 (no change).

The Policing and Crime Act 2017 inserts a new section 57(1B) in the Firearms Act 1968 to define the lethality by reference to the kinetic energy level with which it can discharge a bullet, shot or missile, as measured at the muzzle of the weapon. Consequently, the 1968 Act now 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".

Subsection 57(1C) excludes airsoft weapons from the definition of a "lethal barrelled weapon" provided that they meet the definition of "airsoft gun" under new section 57A.

The Policing and Crime Act 2017 inserts a new section 57A(2) in the 1968 Act to define an "airsoft gun" as a barrelled weapon of any description that:

  • is designed to discharge only a small plastic missile (whether or not it could be used to discharge another missile), and
  • is cannot be used to discharge a missile of any kind above the permitted kinetic energy thresholds.

New subsection 57A(3) defines a "small plastic missile" as a missile that:

  • made wholly or partly from plastics,
  • is spherical, and
  • does not exceed 8 millimetres in diameter.

Subsection 57A(4) sets the maximum permitted kinetic energy levels at:

  • 3 joules if the weapon is capable of discharging two or more missiles successively without repeated pressure on the trigger; and
  • in any other case, 2.5 joules for single-shot air weapons.

"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."

The Policing and Crime Act 2017i inserts a new section 57(1B) in the Firearms Act 1968 to define the lethality by reference to the kinetic energy level with which it can discharge a bullet, shot or missile, as measured at the muzzle of the weapon. Consequently, the 1968 Act now 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".

Subsection 57(1C) excludes airsoft weapons from the definition of a "lethal barrelled weapon" provided that they meet the definition of "airsoft gun" under new section 57A.

The Policing and Crime Act 2017 inserts a new section 57A(2) in the 1968 Act to define an "airsoft gun" as a barrelled weapon of any description that:

  • is designed to discharge only a small plastic missile (whether or not it could be used to discharge another missile), and
  • is cannot be used to discharge a missile of any kind above the permitted kinetic energy thresholds.

New subsection 57A(3) defines a "small plastic missile" as a missile that:

  • made wholly or partly from plastics,
  • is spherical, and
  • does not exceed 8 millimetres in diameter.

Subsection 57A(4) sets the maximum permitted kinetic energy levels at:

  • 3 joules if the weapon is capable of discharging two or more missiles successively without repeated pressure on the trigger; and
  • in any other case, 2.5 joules for single-shot air weapons.

"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."

The Policing and Crime Act 2017i inserts a new subsection 57(1D) in to the Firearms Act 1968. Subsection 57(1D) lists those parts of a firearm that are relevant component parts for the purposes of new subsection 57(1)(c) of the 1968 Act as:

  • a barrel, chamber or cylinder,
  • a frame, body or receiver,
  • a breech block, bolt or other mechanism for containing the pressure of discharge at the rear of a chamber.

These parts must be capable of being used as part of a lethal barrelled weapon or prohibited weapon. These items are not defined in law and are to be interpreted by reference to their commonly understood meaning.

Air Weapons

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" and "Realistic Imitation Firearms"

Imitation Firearms

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" s 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 [2005] 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, s 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 s 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 (ss 1(1) and 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 [2012] 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 [1936] All ER 149 and R v Freeman [1970] 54 Cr. App. R. 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 firearm 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 contrary to sections 1 or 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 [2012] 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 have 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 s.1 of the 1968 Act applies, with the exception of ss. 4(3) and 4(4), 16 to 20 and 47 (see ss. 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 s. 1 of the 1968 Act applies) for the purposes of (in particular) the offences under ss. 1(1) (possession, purchase or acquisition without a certificate) and s. 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 s. 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 s. 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.

Antiques and De-activated Weapons

De-activated Weapons

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.

Unlawfully selling or gifting, or offering to sell or gift, a "defectively deactivated weapon"

The Policing and Crime Act 2017, most of which came in to force on 2 May 2017, inserted a new section 8A in the Firearms (Amendment) Act 1988 to provide the new offence of unlawfully selling or gifting, or offering to sell or gift, a "defectively deactivated weapon" to another person in the UK. The offence enables law enforcement to take action against the availability of firearms deactivated to standards below those approved by the Secretary of State and which, subsequently, may be "reactivated" and used in crime.

Under new subsection 8A(4), a "defectively deactivated weapon" means a firearm which has either ceased to be a firearm - or is a firearm only by virtue of the Firearms Act 1982 (readily convertible imitation firearms) - and has been rendered incapable of discharging any shot, bullet or other missile, but the way in which it has been made incapable does not meet the relevant technical specifications published by the Secretary of State for this purpose.

New subsection 8A(5) places the duty on the Secretary of State to publish a document setting out the technical specifications for the deactivation of weapons which apply.

The technical standards for deactivating firearms which are currently in force in the UK are set out in the Home Office guidance Deactivated firearms: Implementing Regulation (EU) 2015/2403. It should be noted that the deactivation standards set out in the Regulation do not cover all categories of firearm. Other categories of firearm therefore continue to be subject to deactivation standards in accordance with "Specifications for the adaptation of shotgun magazines and the deactivation of firearms: revised 2010". Such weapons should not be considered as a "defectively deactivated firearm". This offence only applies to the sale, gift or offer to sell / gift a defectively deactivated firearm. Accordingly, the possession of such weapons is not affected.

Under new subsection 8A(1) of the Firearms (Amendment) Act 1988, it is an offence for a person who owns or claims to own a defectively deactivated weapon to:

  • make said weapon available for sale or as a gift to another person - new subsection 8A(1)(a), or
  • sell or give (as a gift) said weapon to another person - new subsection 8A(1)(b).

New subsection 8A(9) defines the meaning of the term "sale" to include exchange or barter for the purposes of this section.

Subsections 8A(2) and 8A(3) the scope of the new offence is limited to activities undertaken within the UK. These subsections respectively provide for the exclusion from the scope of the offence, under new subsection 8A(1)(a), an offer to sell or give a defectively deactivated weapon to a person outside the UK provided that, under new subsection 8A(1)(b), if the sale or gift of a defectively deactivated weapon were to take place this would also be a transfer to a place outside the UK.

Museums which hold a museum firearms licence are excluded from the scope of the new offence under new subsection 8A(8), where the relevant weapon was deactivated prior to 8 April 2016.

New subsection 8A(11) sets out the maximum criminal sanctions under the new offence. Sanctions of up to 6 months' imprisonment or a fine, or both will apply on summary conviction. This will increase to 12 months when section 154(1) of the Criminal Justice Act 2003 comes into force. Criminal penalties following conviction on indictment are custodial sentence of up to 5 years' imprisonment or an unlimited fine, or both.

Antiques

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.

Prior to 22 March 2021 there was no statutory definition of an “antique firearm”. Section 126 of the Policing and Crime Act 2017 created a statutory definition by inserting new subsections (2A) to (2H) into section 58, which define an “antique firearm” by reference to the type of cartridge it was designed to use, or by reference to its propulsion system. In addition, to be regarded as an antique, a firearm must have been manufactured before the date specified in regulation 4 of the Antique Regulations, which is 1 September 1939 (see also section 58(2D) of the 1968 Act). These provisions came into force, subject to the transitional provisions (see below) on 22 March 2021.

Under section 58 of the 1968 Act (as amended by section 126 of the 2017 Act), an “antique firearm” is a firearm that meets the following conditions:

  1. either its propulsion system is of a specified type (see paragraph 8 and section 58(2C) of the 1968 Act) or the chamber or chambers are those that the firearm had when it was manufactured (or is a replacement that is identical in all material respects) and it is chambered for use with a specified cartridge (see paragraph 9 and section 58(2B) of the 1968 Act); and
  2. where an additional condition is specified in regulations in relation to date of manufacture, it was manufactured before a specified date (see paragraph 11 and section 58(2D)).

Propulsion systems

A firearm can be regarded as an antique if its propulsion system is of a specified description (see section 58(2C) of the 1968 Act). Regulation 3 of the Antique Firearms Regulations 2021 (“the Antique Regulations”) specifies the following types of propulsion system:

  1. any propulsion system which involves the use of a loose charge and a separate ball (or other missile) loaded at the muzzle end of the barrel, chamber or cylinder of the firearm and which uses an independent source of ignition. This covers muzzle-loading firearms;
  2. any propulsion system in a breech-loading cartridge firearm which uses an ignition system other than rim-fire or centre-fire. For example, pin-fire and needle-fire ignition systems, as well as lip fire, cup-primed, teat fire and base fire systems;
  3. any propulsion system which involves the use of rim-fire cartridges (other than .22 (5.58 mm), .23 (5.8 mm), 6mm or 9mm rim-fire cartridges) in a breech-loading firearm; or
  4. any propulsion system for an air weapon (England and Wales only). This does not include prohibited air weapons or air weapons of a type declared specially dangerous.

Obsolete cartridges

Under section 58(2B) of the 1968 Act, a firearm can also be regarded as an antique if:

  1. its chamber (or each of its chambers, if it has more than one) is either the chamber it had when it was manufactured or it is a replacement for such a chamber that is identical to it in all material respects; and
  2. its chamber (or chambers) is designed for use with a specified type of cartridge, whether or not it is also capable of being used with other cartridges. Regulation 2 and the Schedule to the Antique Regulations specifies those cartridges.

The cartridges specified in the Schedule to the Antique Regulations are arranged according to the type of firearm (longarm or pistol) for which they were designed. However, this is for ease of reference and it is possible that a cartridge listed under one firearm type was also designed to be used with another firearm type. The cartridges specified in the Schedule comprise a single list and provided the requirements of section 58 - read together with the Antique Regulations - are met and the cartridge appears somewhere in the Schedule, the firearm can be regarded as antique.

Date of manufacture

To be regarded as an antique, a firearm must have been manufactured before 1 September 1939 (see section 58(2D) of the 1968 Act).

Cartridges omitted from the obsolete cartridge list

Home Office guidance previously included the following cartridges in the obsolete calibre list, which made them acceptable as qualifying a firearm as antique:

  • .320 British (also known as .320 Revolver CF, short or long)
  • .41 Colt (short or long)
  • .44 Smith and Wesson Russian
  • .442 Revolver (also known as .44 Webley)
  • 4mm Dutch Revolver
  • 6mm German Ordnance Revolver
  • 11mm French Ordnance Revolver M1873 (Army)

On advice from law enforcement that the above cartridges feature in crime, the Government decided not to include them in the list of obsolete cartridges in the Schedule to the Antique Regulations. This means that from 22 March 2021, all firearms chambered for use with the above cartridges will cease to be regarded as exempt antiques and will become subject to the controls in the 1968 Act, including certification and the need to be registered as a firearms dealer to trade in them (subject to transitional arrangements for existing owners). No compensation is payable in respect of such firearms.

Cartridges added to the obsolete cartridge list

On advice from representatives of collectors and law enforcement, the Government decided to add the following cartridges to the obsolete list:

  • .26 BSA (.26 Rimless Belted Nitro Express)
  • .33 BSA (.33 Rimless Belted Nitro Express)
  • .360 No 2 Nitro Express
  • .40 BSA (.40 Rimless Belted Nitro Express)
  • .400/360 2 ¾ in Nitro Express
  • .425 Westley Richards Magnum
  • .475 x 3 ¼ in Nitro Express
  • .475 No 2 Jeffery Nitro Express
  • .475 No 2 Nitro Express
  • .476 Nitro Express (.476 Westley Richards)
  • .50-90 2 ½ inch
  • .50-110 2.4 inch
  • .577 – 3 in (Black Powder & Nitro Express)
  • .577 – 3 ¼ in (Black Powder & Nitro Express)
  • 5 x 53mm R Mannlicher (Dutch/Romanian)
  • 8 x 56mm Mannlicher Schoenauer
  • 8 x 58 mm R Krag
  • 8 mm Murata
  • 9 x 56mm Mannlicher Schoenauer
  • 9 x 57mm R Mauser
  • 9 x 57mm Rimless Mauser
  • 5 x 57mm Mannlicher Schoenauer
  • 8mm Roth Steyr

From 22 March 2021, firearms which are chambered for use with these cartridges and which meet the other statutory criteria for antique firearms, are exempt from licensing control and can therefore be possessed without a firearm certificate or, where relevant, a section 5 authority and/or the need to be registered as a firearms dealer.

Offences relating to antique firearms

From 22 March Section 126(3) of the 2017 Act applied additional offences in the Firearms Act 1968 to the misuse of antique firearms. The 1968 Act already applies section 21 and Schedule 3 to antique firearms. From 22 March 2021 the following additional provisions also apply to antique firearms:

  • section 19 – offence of carrying a firearm in a public place without lawful authority or reasonable excuse,
  • section 20 – offence of trespassing with a firearm, and
  • any other provision of the 1968 Act, so far as it applies to an offence under sections 19, 20 and 21.

Prosecutors are reminded that even if a weapon is defined as an antique by virtue of its age and characteristics, the exemption will only be available if it sold, transferred, purchased, acquired or possessed as an "ornament or curiosity" as per section 58(2) of the Firearms Act 1968.

Existing owners of “antique firearms”

Section 126(4) to (7) of the 2017 Act and Regulation 3 of the Commencement Regulations make transitional provisions for existing owners of former “antique firearms” who want to continue to possess them.

Regulation 3(1) and (2) of the Commencement Regulations allow existing owners to retain on a firearm certificate (or shotgun certificate, if applicable) any firearms they possess that were previously held as antiques but which no longer fall within the definition of “antique firearm”. Under the Commencement Regulations, they will have six months (until 23:59 on 21 September 2021) – a transition period - to make an application to their local police force for a firearm or shotgun certificate or a variation to an existing certificate. Selling or transferring these weapons following this transition period will not normally be permitted in order to minimise the possibility of them falling into criminal hands. Any future transaction involving such these weapons would need to be authorised under section 5 of the 1968 Act in respect of both parties.

The vast majority of firearms affected are expected to be handguns and will therefore also become prohibited weapons under section 5(1)(aba) of the 1968 Act, from which they will no longer be exempt as a result of the changes. Should a firearm meet the criteria for a historic handgun under sections 7(1) or 7(3) of the Firearms (Amendment) Act 1997, the owner can apply for a firearm certificate relying on one of those sections (see chapter 9 of the Home Office Guide on Firearms Licensing Law). In accordance with section 7, a section 5 authority is not required where such a certificate is held.

If the owner of a firearm that no longer falls within the definition of “antique firearm” chooses not to licence it, they will need to otherwise dispose of it before the transition period ends at 23:59 on 21 September 2021. If an existing owner does not dispose of a weapon or apply to include it on a certificate by the transition end date, then they are liable to prosecution.

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.

Conversions

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) s4(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 s4(3).

Possession of articles for conversion of imitation firearms

The Policing and Crime Act 2017, which came in to force on 2 May 2017, inserts a new subsection 4A(1) in the Firearms Act 1968 to provide for the new offence of possession of an article intended for use to unlawfully convert an imitation firearm into a "live" firearm.

The 1968 Act defines an "imitation firearm" as "any thing which has a the appearance of being a firearm (...), whether or not it is capable of discharging any shot, bullet or other missile" (excluding any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing).

Registered firearms dealers, as defined under section 57(4) of the 1968 Act, are excluded from the scope of the new offence under section 4A(1).

There are two limbs that need to be satisfied in order to secure a conviction under the new offence, as possession of the article(s) in question is not sufficient on its own:

  • new subsection 4A(1)(a) provides for the conduct (actus reus) element of the offence, namely that a person (other than a registered firearms dealer) has in his or her possession or control an article that can be used to convert an imitation firearm into a firearm, and
  • new subsection 4A(1)(b) sets out the mental (mens rea) element of the offence, which is that the relevant person intends to use the article to convert an imitation firearms into a firearm.

New subsection 4A(2) sets out the maximum criminal sanctions for the new offence. Sanctions of up to 6 months' imprisonment or a fine, or both, will apply on summary conviction. This will increase to 12 months' when section 154(1) of the Criminal Justice Act 2003 comes into force. Criminal penalties following conviction on indictment are custodial sentences of up to 5 years' imprisonment or an unlimited fine, or both.

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 Charge below.
  • Section 5 - Possession of a prohibited weapon.

The above offences are subject to certain exceptions.

Possession

  • 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 (1991) Crim. L.R. 381; Sullivan v Earl of Caithness [1976] 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 [1987] 83 Cr. App. R. 257 DC).

Prohibited Weapons Defined by s.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.

Prohibited Weapons

  • 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 a person 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 [2015] EWCA Crim 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:
    1. any ammunition falling within any of the preceding paragraphs; or
    2. any ammunition which would fall within any of those paragraphs but for its being specified in subsection (1) of this section.

Forward Venting Blank Firing Weapons

Blank-firing weapons

Blank-firing weapons imported and sold in the UK will normally have a fully obstructed dummy barrel and will vent the gas from the fired blank cartridges in an upward or sideways direction.

They should conform to the Violent Crime Reduction Act 2006 (Specification for Imitation Firearms) Regulations 2011.

Forward venting blank-firing weapons

Many blank-firing weapons sold in other parts of the world are designed differently, in that they vent the gas from a fired cartridge through the barrel of the weapon. There is normally some form of partial obstruction to prevent the discharge of normal bulleted cartridges. The possession of such a gun will almost certainly fall under the control of Firearms Act 1968, depending on its design. Examples are given below.

Possible charges:

  1. Section 5(1) (aba) of the Firearms Act 1968

    Many forward venting blank-firing weapons are capable of discharging a missile with lethal potential. Due to their dimensions they are potentially subject to section 5(1) (aba). Some may require minor modifications in order to discharge a missile, but often this can be achieved by the unscrewing of a muzzle plug, but as long as the modifications can be carried out using simple household tools, such a weapon would still be subject to either section 1 or section 5 of the above Act by virtue of the provisions of the Firearms Act 1982. (It should be stressed that simply removing a screw-in muzzle plug has not normally been regarded as "converting" a gun, as laid down in the 1982 Act, and under such circumstances the gun would simply be classified as a lethal barrelled weapon in its own right.)

This classification would not be appropriate if the gun had been designed as a signal pistol (for example, because they are capable of accepting a screw-in flare launcher) because such guns are specifically exempted from section 5(1) (aba); instead, a classification as a section 1(1)(a) firearm would be appropriate and a firearm certificate would be required. Examples of this type of gun would include: Voltran Company (Ekol) Tuna or Jackal Dual Compact and Kimar 82 or 92 Auto.

Prosecutors should be aware of the possibility that some Defence experts might argue that screwing in a flare cup is an act of conversion requiring specialist conversion, such that the Firearms Act does not apply. Prosecutors should be prepared to contest this arguing R v Bewley and obtaining further expert evidence, if necessary.

  1. Section 5(1)(b) of the Firearms Act 1968

    This relates to those forward venting blank-firing weapons that can be proven to have been designed for the discharge irritant gas cartridges. Examples would include: Weihrauch HW 88 and Umarex Walther P88. As they are designed to discharge a noxious substance, they would be subject to Section 5(1) (b) of the Firearms Act 1968.

    In the context of a weapon prohibited under section 5(1)(a), the words "designed or adapted" required only that the gun be capable of rapid burst fire; proof of an intention on the part of the designer that it be used for that purpose was not required - R v Law [1999] Crim. L.R. 837. Similarly, in R v Rhodes [2015] EWCA Crim 155, the Court of Appeal held that a similar interpretation of the words "designed or adapted" applied to section 5(1)(b), such that forward venting guns with partially obstructed barrels that are capable of firing gas cartridges may be captured by this section.

If it cannot be demonstrated that the gun was designed or adapted to discharge a noxious substance, and if it is threaded at the muzzle for a flare launcher, consideration should be given as to whether the gun is a section 1(1)(a) firearm as a signal pistol.

  1. If neither of the above options apply and the gun does not meet the definition for a firearm as set out in section 57(1) Firearms Act 1968 (for which a certificate is required under section 1(1)(a)), then the gun should be classified as an imitation firearm as defined by section 57(4) of that Act.

It is crucial that once such guns are recovered, they should be submitted to a Forensic Provider for the production of an appropriate statement.

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(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 (s 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 s 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 [1977] 3 All ER 1099) (R v Pawlicki [1992] 3 All ER 92) (R v Bradish & Hall [2004] 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 (s28(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:

  1. knowingly acquire possession of any of the following goods:
    1. goods which have been unlawfully removed from a warehouse or Queen's warehouse;
    2. goods which are chargeable with a duty which has not been paid;
    3. 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
  2. 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 -

(a) an offence under this section in connection with a prohibition or restriction; and

(b) 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.

Charging Practice

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.

Diversion

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. ​

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. See youth cautions and youth conditional cautions in the Legal Guidance on Youth Offenders. 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;
  • Ballistics;
  • 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 CA in R v Avis [1998] 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 (Attorney General's Reference Nos 21 and 22 of 2003 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 Jaffier (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) EWCA 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 weapon was associated with other criminal activity;
  • 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 does 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 firearm or ammunition should be used in a manner which endangers life as and when the occasion requires. In R v Jones (IF) [1997] 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. 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 [2010] 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. (Attorney General's Reference No 114 of 2004 R v Stephen McDowell [2004] EWCA Crim 2954. 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 [1988] 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 [2012] 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 [2013] 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).

Consent

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 s 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).

Sentencing issues: Newton hearings

Where a defendant pleads guilty to the charges but on the basis of facts that are different from the prosecution case, and where this may affect sentence, the prosecutor should invite the court to hear evidence to determine what happened, and then sentence on that basis, (see R v Newton [1983] 77 Cr. App. R. 13).

A Newton hearing should be held when the defence departs from the facts as opened by the prosecution in a manner which is material to the central issue and which is capable of belief, ie it is not so manifestly absurd or implausible that it would be a waste of the court's time to hear evidence (see R v Hawkins [1985] 7 Cr. App. R. (S.) 351), and the departure is substantial and if accepted, is likely to affect sentence.

Sentencing Guidance

The leading firearms sentencing case is R v Avis (1998) 1 Cr. App. R. 42, 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 [2004] 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 [2006] 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 [2006] 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.)

16 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 (s 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 [2013] 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 s 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 (s 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 (s 29 (3) (b) and s 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 (s 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 (s 29 (11) and s 29 (12)).

Table of Punishments for Firearms Offences

Section of the Firearms Act 1968 creating the offence:

Section 1(1)

General nature of offence: Possessing etc. firearm or ammunition without certificate.
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the prescribed sum; or both. (b) On indictment (i) Where the offence is committed in an aggravated form within the meaning of section 4(4) of this Act, 7 years, or a fine; or both. [Applies to Scotland only.] (ii) In any other case, 5 years or a fine; or both.

Section 1(2)

General nature of offence: Non-compliance with condition of firearm certificate.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 2(1)

General nature of offence: Possessing, etc. shot gun without shot gun certificate.
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or the statutory maximum; or both [Applies to Scotland only.] (b) On indictment 5 years or a fine; or both.

Section 2(2)

General nature of offence: Non-compliance with condition of shot gun certificate.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both [Applies to Scotland only.]

Section 3(1)

General nature of offence: Trading in firearms without being registered as firearms dealer.
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the prescribed sum; or both. (b) On indictment 5 years or a fine; or both.

Section 3(2)

General nature of offence: Selling firearm to person without a certificate. 
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the prescribed sum; or both. (b) On indictment. 5 years or a fine; or both.

Section 3(3)

General nature of offence: Repairing, testing etc. firearm for person without a certificate. 
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the prescribed sum; or both. (b) On indictment 5 years or a fine; or both.

Section 3(5)

General nature of offence: Falsifying certificate, etc. with view to acquisition of firearm.
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the prescribed sum; or both. (b) On indictment 5 years or a fine; or both.

Section 3(6)

General nature of offence: Pawnbroker taking firearm in pawn.
Mode of Trial: Summary Only.
Punishment: Summary 3 months or a fine of level 3 on the standard scale; or both.

Section 4(1)(3)

General nature of offence: Shortening a shot gun; conversion of firearms.
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the prescribed sum; or both. (b) On indictment 7 years or a fine; or both. 

Section 5(1) and 5(1A)(a) but not Section 5(1)(b) see below

General nature of offence: Possessing or distributing prohibited weapons or ammunition.
Mode of Trial: Indictable Only.
Punishment: On indictment 10 years or a fine; or both.
Additional provisions: Mandatory Minimum Sentence applies.

Section 5(1A) but not 5(1A)(a) see above

General nature of offence: Possessing or distributing other prohibited weapons or ammunition. 
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the statutory maximum; or both. (b) On indictment 10 years or a fine; or both.
Additional provisions: Not subject to Mandatory Minimum Sentence.

Section 5(1)(b)

General nature of offence: Possession or distributing a weapon capable of discharging a noxious thing.
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the statutory maximum; or both. (b) On indictment 10 years or a fine; or both.
Additional provisions: Not subject to Mandatory Minimum Sentence.

Section 5(5)

General nature of offence: Non-compliance with condition of Defence Council authority.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 5(6)

General nature of offence: Non-compliance with requirement to surrender authority to possess, etc. prohibited weapon or ammunition.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.

Section 6(3)

General nature of offence: Contravention of order under section 6 (or corresponding Northern Irish order) restricting removal of arms.
Mode of Trial: Summary Only.
Punishment: Summary 3 months or, for each firearm or parcel of ammunition in respect of which the offence is committed, a fine of level 3 on the standard scale; or both.
Additional provisions: Para. 2 of part II of this schedule applies.

Section 7(2)

General nature of offence: Making false statement in order to obtain police permit.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both. 

Section 9(3)

General nature of offence: Making false statement in order to obtain permit for auction of firearms etc. 
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine not exceeding level 5 on the standard scale; or both.

Section 13(2)

General nature of offence: Making false statement in order to obtain permit for removal of signalling apparatus. 
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale or both.

Section 16

General nature of offence: Possession of firearm with intent to endanger life or injure property.
Mode of Trial: Indictable Only.
Punishment: On indictment Life imprisonment or a fine; or both. 
Additional provisions: May be subject to Mandatory Minimum Sentence see section 30 VCRA 2006.

Section 16A

General nature of offence: Possession of firearm or imitation firearm with intent to cause fear of violence.
Mode of Trial: Indictable Only.
Punishment: On indictment 10 years or a fine, or both.
Additional provisions: May be subject to Mandatory Minimum Sentence see section 30 VCRA 2006.

Section 17(1)

General nature of offence: Use of firearm or imitation firearm to resist arrest.
Mode of Trial: Indictable Only.
Punishment: On indictment Life imprisonment or a fine; or both. Paras 3 to 5 of part II of this schedule apply.
Additional provisions: May be subject to Mandatory Minimum Sentence see section 30 VCRA 2006.

Section 17(2)

General nature of offence: Possessing firearm or imitation firearm while committing an offence in schedule 1 or, in Scotland, an offence specified in schedule 2.
Mode of Trial: Indictable Only.
Punishment: On indictment Life imprisonment or a fine; or both. 
Additional provisions: Paras 3 and 6 of part II of this schedule apply. May be subject to Mandatory Minimum Sentence see section 30 VCRA 2006.

Section 18(1)

General nature of offence: Carrying firearm or imitation firearm with intent to commit indictable offence (or, in Scotland, an offence specified in schedule 2) or to resist arrest.
Mode of Trial: Indictable Only.
Punishment: On indictment Life imprisonment or a fine; or both. 
Additional provisions: May be subject to Mandatory Minimum Sentence see section 30 VCRA 2006.

Section 19

General nature of offence: Carrying firearm in public place.
Mode of Trial: Triable Either Way or Summary Only.
Punishment: (a) Summary 6 months or a fine of the prescribed sum; or both. (b) On indictment (but not if the firearm is an air weapon or imitation). 7 years or a fine; or both.
If the firearm is an air weapon or imitation. For shotgun or other firearm. NB on or after 1 October 2007 imitation firearms are TEW with 12 months on indictment.
Additional provisions: May be subject to Mandatory Minimum Sentence see section 30 VCRA 2006.

Section 20(1)

General nature of offence: Trespassing with firearm or imitation firearm in a building.
Mode of Trial - Triable Either Way or Summary Only.
Punishment: (a) Summary 6 months or a fine of the prescribed sum; or both. Imitations and air weapons (b) On indictment (but not in the case of an imitation firearm or if the firearm is an air weapon). 7 years or a fine; or both.
Additional provisions: May be subject to Mandatory Minimum Sentence see section 30 VCRA 2006.

Section 20(2)

General nature of offence: Trespassing with firearm or imitation firearm on land.
Mode of Trial: Summary Only.
Punishment: Summary 3 months or a fine of level 4 on the standard scale; or both.

Section 21(4)

General nature of offence: Contravention of provisions denying firearms to ex-prisoners and the like.
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the prescribed sum; or both. (b) On indictment 5 years or a fine; or both.

Section 21(5)

General nature of offence: Supplying firearms to person denied them under section 21.
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the prescribed sum; or both. (b) On indictment 5 years or a fine; or both.

Section 22(1)

General nature of offence: Person under 17 acquiring firearm (18 from 1 October 2007).
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 22(1A)

General nature of offence: Person under 18 using certificated firearm for unauthorised purpose.
Mode of Trial: Summary Only.
Punishment: Summary 3 months or a fine of level 5 on the standard scale; or both.

Section 22(2)

General nature of offence: Person under 14 having firearm in his possession without lawful authority.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 22(3)

General nature of offence: Person under 15 having with him a shot gun without adult supervision.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.
Additional provisions: Para. 8 of part II of this schedule applies.

Section 22(4)

General nature of offence: Person under 14 having with him an air weapon or ammunition.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.
Paras 7 and 8 of part II of this schedule apply.

Section 22(5)

General nature of offence: Person under 17 having with him an air weapon in a public place (18 from 1 October 2007).
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.
Additional provisions: Paras 7 and 8 of part II of this schedule apply.

Section 23(1)

General nature of offence: Person under 14 making improper use of air weapon when under supervision person supervising him permitting such use.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.
Additional provisions: Paras 7 and 8 of part II of this schedule apply.

Section 24(1)

General nature of offence: Selling or letting on hire a firearm to person under 17 (18 from 1 October 2007).
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 24(2)

General nature of offence: Supplying firearm or ammunition (being of a kind to which section 1 of this Act applies) to person under 14.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 24(3)

General nature of offence: Making gift of shot gun to person under 15.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.
Additional provisions: Para. 9 of part II of this schedule applies.

Section 24(4)

General nature of offence: Supplying air weapon to person under 14.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.
Additional provisions: Paras 7 and 8 of part II of this schedule apply.

Section 25

General nature of offence: Supplying firearm to person drunk or insane.
Mode of Trial: Summary Only.
Punishment: Summary 3 months or a fine of level 3 on the standard scale; or both.

Section 26(5)

General nature of offence: Making false statement in order to procure grant or renewal of a firearm or shot gun certificate.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 29(3)

General nature of offence: Making false statement in order to procure variation of a firearm certificate.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 30D(3)

General nature of offence: Failing to surrender certificate on revocation.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.

Section 32B(5)

General nature of offence: Failure to surrender expired European firearms pass.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.

Section 32C(6)

General nature of offence: Failure to produce European Firearms Pass or Article 7 authority for variation or cancellation etc.; failure to notify loss or theft of firearm identified in Pass or to produce Pass for endorsement.
Mode of Trial: Summary Only.
Punishment: Summary 3 months or a fine of level 5 on the standard scale; or both.

Section 38(8)

General nature of offence: Failure to surrender certificate of registration [or register of transactions] on removal of firearms dealer's name from register.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.

Section 39(1)

General nature of offence: Making false statement in order to secure registration or entry in register of a place of business.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 39(2)

General nature of offence: Registered firearms dealer having place of business not entered in the register.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 39(3)

General nature of offence: Non-compliance with condition of registration.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 40(5)

General nature of offence: Non-compliance by firearms dealer with provisions as to register of transactions; making false entry in register.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 42A

General nature of offence: Failure to report transaction authorised by visitor's shot gun permit.
Mode of Trial: Summary Only.
Punishment: Summary 3 months or a fine of level 5 on the standard scale; or both.

Section 46

General nature of offence: Obstructing constable or civilian officer in exercise of search powers.
Mode of Trial: Summary Only.
Punishment: Summary 6 months or a fine of level 5 on the standard scale; or both.

Section 47(2)

General nature of offence: Failure to hand over firearm or ammunition on demand by constable.
Mode of Trial: Summary Only.
Punishment: Summary 3 months, or a fine of level 4 on the standard scale; or both.

Section 48(3)

General nature of offence: Failure to comply with requirement of a constable that a person shall declare his name and address.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.

Section 48A(4)

General nature of offence: Failure to produce firearms pass issued in another Member State.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.

Section 49(3)

General nature of offence: Failure to give constable facilities for examination of firearms in transit, or to produce papers.
Mode of Trial: Summary Only.
Punishment: Summary 3 months or, for each firearm or parcel of ammunition in respect of which the offence is committed, a fine of level 3 on the standard scale; or both.
Additional provisions: Para. 2 of part II of this schedule applies.

Section 52(2)(c)

General nature of offence: Failure to surrender firearm or shot gun certificate cancelled by court on conviction.
Mode of Trial: Summary Only.
Punishment: Summary A fine of level 3 on the standard scale.

Section 28 Violent Crime Reduction Act 2006 Minding Weapons:

General nature of offence: Minding weapons.
Mode of Trial: Triable Either Way.
Punishment: (a) Summary 6 months or a fine of the statutory maximum; or both. (b) On indictment 10 years or a fine; or both.
Additional provisions: May be subject to Mandatory Minimum Sentence see section 29 VCRA 2006.

Use of Weapons and Assaults

Generally, for sentences in which firearms are used, the aggravated feature should be marked by a consecutive sentence, subject to regard being had to the totality of the sentence then passed, R v McGrath (Sean David) (1986) 8 Cr. App. R. (S.) 372.

However, where the use of a firearm led onto the primary offence, which could not be separated from the firearms offence (for instance where the weapon actually seriously harms or kills another person, then separate and consecutive sentences become artificial. R v Johnson [2005] EWCA Crim 2281.

Forfeiture on Conviction

Power to order forfeiture in certain circumstances is contained in section 52.

The weapon may be of use to Force Armourers and Forensic Service Providers. Therefore unless the Police specify otherwise destruction of the weapon should not be routinely requested.

Violent Crime Reduction Act 2006 (Commencement No3) Order 2007: Firearms Measures

Home Office Circular 12/2007 advised of the commencement on 6 April 2007 of certain firearms provisions in Part 2 of Violent Crime Reduction Act 2006. This circular, which has been drawn up in consultation with ACPO's Firearms & Explosives Licensing Working Group and with ACPO Scotland, advises of the commencement on 1 October 2007 of the remaining firearms provisions in that Act. The relevant commencement orders can be downloaded from the following links:

Amnesties - Surrenders

From time to time, police forces may initiate firearms amnesties where they indicate that they will not arrest or initiate a prosecution against those who surrender unlawfully held firearms and shotguns, or prohibited weapons.

These amnesties or surrenders usually last for a short period of time and are intended to help in the reduction of the criminal use of firearms or facilitate the introduction of new legislation (particularly where there is a need to ensure that firearms that were not previously prohibited are handed over before it becomes an offence to possess them).

These provisions will rarely, if ever, extend to those committing offences which involve the criminal use of firearms.

Where an amnesty or surrender is in force in a given area, police officers seeking charging advice for possession of an unlawfully held or prohibited weapon should mark the file accordingly. Prosecutors can never be seen to give an undertaking not to ever prosecute in these circumstances, but instead, should consider each case on its merits.

Where the Evidential Test is met, the starting point is that it would normally be in the public interest to prosecute having regard to the seriousness of these offences and the risk of harm presented. However, there may be circumstances where the existence of a surrender or amnesty means that that the Public Interest Test may not be met.

Useful Links

Police PNLD: Ask the Police - Weapons

Crimeline: http://www.crimeline.info/

MPS Firearms: Metropolitan Police - SC&019 Firearms Licensing

VCRA 2006: Violent Crime Reduction Act 2006 - Chapter 38

Operational policing: http://police.homeoffice.gov.uk/operational-policing/firearms/

Tackling gun crime: http://press.homeoffice.gov.uk/press-releases/Tackling_Gun_Crime?version=1

 

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