England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Monday 1st February 1999

B E F O R E :

LORD JUSTICE SWINTON THOMAS

MR JUSTICE TUCKER

and

MR JUSTICE PENRY-DAVEY

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R E G I N A

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RICHARD ANDREW LAW

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

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(Official Shorthand Writers to the Court)

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MR M HARRIS appeared on behalf of the Appellant

MR G WALTERS appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Monday 1st February 1999

JUDGMENT

LORD JUSTICE SWINTON THOMAS: The appellant is a dealer in firearms carrying on his business in Wales through a company called the Shooters Rights Association Limited. He is a reputable dealer and a recognised expert in his field. No allegation of dishonesty or bad faith is made against him. The appeal relates to a short point of construction pursuant to section 5(1A) of the Firearms Act 1968 as amended by section 1(2) of the Firearms (Amendment) Act 1988.

On 25th February 1998, in the Court Crown court at Swansea before his Honour Judge Morton, the appellant pleaded guilty following a ruling made by the judge to Counts 2, 5, 6, 7 and 8 in the indictment laid against him. All the counts charged him with the possession, selling or transferring of a prohibited weapon contrary to section 5(1A) of the 1968 Act. He was fined the sum of £1,000. There were other similar counts in the indictment which are irrelevant to this appeal. The appellant appeals against his conviction by the leave of the Single Judge.

We can state the facts comparatively shortly. On 8th January 1997 the appellant went to the forensic science service laboratory in Lambeth to examine a firearm as a potential expert for the defence in a criminal prosecution. He had in his possession an MAC 10 submachine gun. It was the opinion of an expert at that laboratory that the weapon was capable of burst fire. That is the subject matter of Count 2 in the indictment.

Count 5 charged the appellant with the offence of possessing a prohibited weapon, and Count 6 was transferring that weapon. The weapon in question is an MAC 10 open bolted pistol which the appellant examined on behalf of a client and returned it to him following his examination. A Home Office expert examined the weapon and came to the conclusion that the firearm was a variant of the Ingram submachine gun which was designed to be capable of fully automatic and semi-automatic fire. However, this particular gun had been adapted so that it could not be utilised for automatic fire. However, the adaptation was not fully effective with the result that it was still capable of automatic fire in the hands of an expert or a man with sufficient knowledge of the gun to use it for that purpose.

Counts 7 and 8 charged the appellant with the possession and the selling or transferring of an Ingram style MAC 10 submachine gun. The appellant had acquired the gun and had sold it to a client. The evidence was that this weapon was also capable of automatic fire, but only with some difficulty and again only in the hands of an expert or a person who had special knowledge of the gun.

A number of facts were agreed between the parties for the purposes of the judge's ruling. It was agreed that each of the relevant weapons was capable of burst fire in the hands of an expert.

Section 5(1A) of the 1968 Act as amended provides:

"A person commits an offence if, without the authority of the Defence Council, he has in his possession or purchases or acquires or manufactures, sells or transfers -

(a) any firearm which is so designed or adapted that two or more missiles can be successfully discharged without repeated pressure on the trigger."

Prior to its amendment the Section read as follows:

"A person commits an offence if, without the authority of the Defence Council, he has in his possession or purchases or acquires or manufactures, sells or transfers -

(a) any firearm which is designed or adapted if pressure is applied to the trigger missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty."

It is of relevance and of some importance that prior to the amendment, as the reading of the section shows, the prosecution was required to prove that the firearm was designed and adapted so that, if pressure was applied to the trigger, missiles continued to be discharged until pressure is removed, whereas by the amendment the prosecution are required to prove that the firearm was designed or adapted so that two or more missiles can be successfully discharged without repeated pressure on the trigger.

The insertion of the words "two or more missiles can be successfully discharged" are central to the point of construction that arises in this appeal. It is common ground that two or more missiles could be successfully discharged from each of the weapons the subject matter of the counts in the indictment, but it is submitted by Mr Harris, on behalf of the appellant, that that is not sufficient for the purpose of proving an offence under section 5. It is submitted that the section requires the prosecution to prove that the firearm had been designed or adapted with the intention of being used as a semi-automatic weapon.

Judge Morton came to the conclusion that if the weapon was capable of burst fire, albeit only in expert hands, then the offence was made out. Mr Harris, on behalf of the appellant, in a very full and forceful submission has submitted that the judge was wrong to so hold. He submits that on the wording of the section the judge was wrong to attribute an entirely objective meaning to the words; that the words "designed or adapted" import into the section an intention to design or adapt the weapon for that purpose, and consequently, at least to an extent, a subjective as opposed to an objective test must be applied.

Mr Harris has put before us a very full and well argued skeleton argument which we have, of course, read and considered. He expanded on that skeleton in the course of his submissions and emphasised the central points in it. He submitted that the words "designed or adapted" mean that something more than a mere capability for burst fire was intended by the draftsmen of the section. He invited our attention to the history of the legislation and its predecessors, and he then pointed to the fact that if it was intended that the test should be objective only, that could easily have been achieved by omitting the words "designed or adapted" so that section 5(1) would then read:

"A person commits an offence if, without the authority of the Defence Council, he has in his possession or purchases or acquires or manufactures, sells or transfers any firearm that two or more missiles can be successfully discharged without repeated pressure on the trigger."

In other words the words "designed or adapted" are unnecessary if an objective test is to be applied.

Mr Harris also invited our attention to a number of authorities which were decided under other statutes or different divisions of the 1968 Act.

We must, as Mr Harris submitted, consider the words of this section in their context, as was stressed by Lord Parker in Maddox and Storer [1963] 1 QB 451, at page 455.

Mr Harris also invited our attention to the various dictionary definitions of the words "designed" and "adapted". We do not think that the authorities or the dictionary definitions are of any very great assistance to us in construing the words of section 5(1A). We must, of course, take into account the history of the legislation and the wording of the previous Acts. However, in the end we have to construe the words of the section as they stand.

It is, however, necessary for us to refer briefly to a decision of his Honour Judge Samuels given on 11st March 1998 in the Knightsbridge Crown Court in a case called R. v. Savage , in which he considered the very point that arises in this case. Judge Samuels came to the opposite conclusion to that reached by Judge Morton. Judge Samuels said in terms that he differed from Judge Morton's conclusions, and he said:

".....the construction that he [that is Judge Morton] adopted gave inappropriate emphasis to the potential capacity of a particular weapon to produce an end result in contrast to what the weapon had in fact been designed or adapted to produce."

Judge Samuels then went on to say:

".....my tentative conclusion is that I would be likely at that stage [that is a submission of no case to answer] to decide on the facts currently known to me that the phrase 'so designed or adapted' is not of sufficient width to mean 'capable of being so used' which, on analysis, is how, in the opinion Judge Morton construed it."

Judge Samuels' view was, as he said, a tentative one. We do not agree with it. In our judgment in reaching the conclusion that he did Judge Samuels focused his attention solely on the words "designed or adapted" without considering those words in the context of and in conjunction with the words "that two or more missiles can be successfully discharged". In our judgment the conclusion reached by Judge Morton on the wording of the section was plainly correct. Section 5 does not import either explicitly or implicitly any intention on the part of the designer or the adaptor. The section is not framed using words such as designed or adapted "for the purpose of" burst fire or repeated fire. The central and vital words, in our judgment, are the words "can be successfully discharged". On the agreed facts two or more missiles could be successfully discharged without repeated pressure on the trigger. Once that is proved then, in our judgment, the firearm is so designed or adapted. If the weapon is capable of burst fire, then it is caught by the words of the section. Accordingly we would uphold the ruling made by his Honour Judge Morton, and we would dismiss this appeal.