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What is a firearm (R v Mr A)?

On the definition of "Firearm" in the Firearms Act 1968

Mr A was charged with possession of a firearm namely a "Pains-Wessex Mark 1 mini-flare". This was a military issue hand-held flare launcher for use as a signalling device. It consisted of a pen-sized grip onto which a flare-cartridge is attached. The cartridge is 25cm long, 16mm wide and screws on to the pen-grip. The flare consists of an alloy tube containing an alloy pot in which the flare is packed. When the flare is launched the pot goes too but the tube remains attached to the grip. Once fired the tube is discarded. The Crown argued that this tube was a barrel.

The civilian mini-flare does not retain the tube instead flare, tube and pot are all launched. The Crown argued that the design of the civilian version was different ensuring that the flare is not discharged through the tube and that no tube/barrel remained. This, they said took the civilian flare outside the ambit of the Firearms act.

A firearm is a "lethal barrelled weapon of any description from which any shot bullet or other missile can be discharged and includes ...... any component part...." S57(1) Firearms Act 1968.

The Crown relied on R v S (1989) CLR 724 a case involving an identical mini-flare. Mr S shot a flare at his girlfriend so he had clearly used the item as weapon. Contrast this with Mr A who had confiscated the item from his young son put it away and left it in a cupboard for many years.

The Crown argued that because S was a case decided on the same item the jury could and should reach the same conclusion. The defence argued that all Mr S decides is that a jury may reach the same conclusion but they should rely only on the evidence they hear and ignore the verdict of a jury on evidence of which they are ignorant. The defence further argued that the mini-flare was not "barrelled" within the meaning of the Act nor was it a weapon in the circumstances of this case.

The Defence expert contended that "barrelled" means having a barrel as a permanent if interchangeable feature and not a dispensable piece of tubing. After all, you don't throw a shot-gun barrel away each time you fire it even though it can be removed. We further argued that although the item is capable of use as a weapon, there was no evidence that it had been so used and it is not designed as such. In the absence of evidence of use as a weapon (per Mr S) it remains a mini-flare, an item designed for signalling. Interestingly, although the Act provides that "firearm" includes any component and would thus cover both a barrel and a pistol-grip with the trigger, their expert conceded that the mini-flare grip, the equivalent of a pistol-grip with trigger, was not a firearm.

Finally, parallels were drawn with fireworks such as "Roman Candles" which are tubular and eject lethal flares and, larger marine parachute flares which have tubes up to a foot long and, eject a large metal flare-holder, parachutes, twine, weights and of course the flare. The Crown's expert suggested both the fireworks and the parachute flares fulfilled the criteria of firearms. The Defence argued that they did not because they were not weapons. The unreality of the Crown's argument is perhaps obvious in that if these items were classed as firearms merely because they were lethal and discharged through a tube, there would be a lot of problems on Bonfire night and for people sailing on the Solent! They must be a weapon by use or design or the word has no meaning in the Act.

The Learned Judge left the matter to the jury who acquitted. A question from a juror demonstrated that they were troubled by the issue of this being a weapon (whether barrelled or not).

Whilst an acquittal does not provide an authority, it does illustrate several points.

First, that the lack of definition of "barrelled" and/or "weapon" in the Act leaves room for argument item by item.

Second, whilst the evidence in the case of Mr S led a jury to conclude that the tube was a barrel that is not binding on any other jury. The Court of Appeal merely agreed with the learned trial judge that it was a matter for a jury to consider. The evidence in this case was (or may) not have been sufficient to satisfy the jury on this point. The strength and validity of an expert and his/her argument is thus demonstrably vital to the case. Since the Crown bring the case they may have the pick of the experts. The defence should investigate an expert thoroughly before instructing him/her including inviting comment on case-material before deciding whether to go ahead and even seeking a pre-instruction meeting to judge ability and demeanour.

Third, the lack of definition of "weapon" in the Act, whilst it served Mr A in properly securing his acquittal, does not serve the protection of the public.

Dangerous items of questionable/arguable legality are left to be dealt with on a case-by-case basis relying on the expert evidence of the day. It would be far better to amend the Act to provide a working definition so that clarity and safety can be attained to protect the public and prevent wrongful accusation and wasteful, unnecessary trials.

24 August 2007

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