K v DPP

The character of an imitation firearm is determined objectively by the tribunal of fact. Where doubt exists, the tribunal may consider the evidence of witnesses who saw the object. The offence under section 16A of the Firearms Act 1968 does not require the victim to believe that the imitation firearm is a real firearm. It is sufficient that the defendant possessed an imitation firearm and intended, by means of it, to cause a person to believe that unlawful violence would be used. A victim’s knowledge that the object is an imitation firearm may be relevant to sentence, but does not prevent the offence being committed where the victim fears violence.

The claimant, aged 16, appealed by way of case stated against his conviction for possessing an imitation firearm with intent to cause a person to believe that unlawful violence would be used. He had pointed a BB gun at a care worker and said “Pow”. The care worker knew that the gun was not a real firearm but feared violence because it could fire a pellet capable of causing injury.

The magistrates held that the BB gun was an imitation firearm, that the victim’s knowledge of its true nature was irrelevant, and that the claimant had the requisite intent. The central questions were whether imitation-firearm status depended only on physical appearance and whether the offence could be committed where the victim knew the object was an imitation firearm.

1. Appeal dismissed. The magistrates had correctly convicted the claimant under limb (a) of section 16A of the Firearms Act 1968.
2. The definition of imitation firearm in section 57A requires an objective assessment. The tribunal of fact determines whether an object has the appearance of being a firearm. Objects plainly within or outside the definition can be classified on that basis. Where there is doubt, the tribunal may take account of the views of witnesses who saw the object, as explained in R v Morris and King 79 Cr.App.R 104. The magistrates were entitled to conclude, having seen the BB gun, that it was an imitation firearm.
3. Section 16A criminalises possession of a firearm or imitation firearm with intent, by means of it, to cause a person to believe that unlawful violence will be used. The provision does not require proof that the victim believed the object was a real firearm. The relevant questions were whether the claimant possessed an imitation firearm, whether he intended by means of it to cause the complainant to believe that unlawful violence would be used, and whether those matters were proved on the facts.
4. The BB gun could fire a pellet capable of causing injury, and the complainant feared violence. The magistrates found that the claimant intended to make him fear violence. The complainant’s knowledge that the gun was an imitation therefore did not prevent liability.
5. That knowledge remained relevant to penalty and was a matter the sentencing court could and should take into account.

The case came before the Divisional Court on an appeal by way of case stated from the conviction by the Cambridge Youth Court. The claimant also appealed against sentence, but the judgment addressed first the appeal against conviction.