Attorney-Generals Reference No 48 and 49 of 2010

Firearms Act 1968 section 51A does not directly impose its five-year minimum sentence on a conspiracy or attempt to create a prohibited firearm. Parliament’s indication of the grave public risk associated with prohibited weapons nevertheless has a considerable effect on sentencing for such offences.

A deliberate attempt to create a working handgun will ordinarily require a sentence of at least five years after trial. That conclusion reflects the public danger, while preserving the distinction between statutory application of section 51A and sentencing by analogy with its policy. In an Attorney General’s reference, a sentence may be lenient without requiring an increase if it is not so unduly lenient that intervention is necessary.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer sentences imposed on two offenders who had pleaded guilty to conspiracies to possess and distribute prohibited firearms and ammunition, and to convert starting pistols into firearms.

The offenders had bought four starting pistols and blank ammunition, then began converting them in a garden shed. Police intervention meant that the weapons had not become workable lethal firearms. The sentencing judge imposed 30 months’ imprisonment on Cox and 25 months’ imprisonment on Monk.

The central issues were the relevance of section 51A of the Firearms Act 1968 to conspiracies and attempts, the proper sentencing level for deliberate handgun conversion, and whether the sentences were unduly lenient.

1. Leave was granted, but the sentences were not increased. The court held that the sentences were lenient. It was nevertheless not necessary to increase them at that stage, as the offenders were already well into serving them.

2. Section 51A of the Firearms Act 1968 did not directly apply. The offences were conspiracies and, in substance, attempts; moreover, the weapons had not yet become prohibited weapons. Parliament could readily have extended the statutory minimum to attempts and conspiracies if that had been intended.

3. The section remained highly material as an indication of Parliament’s concern about the public danger posed by prohibited firearms. The court therefore rejected an automatic five-year minimum for offences outside section 51A, but held that it would be difficult to envisage a deliberate attempt to create a working handgun which did not require at least five years’ imprisonment after trial.

4. The court treated the guidance in Attorney General’s Reference No 43 of 2009 (Bennett and R v Wilkinson) [2010] 1 Cr App R(S) 100 as important: where firearms are made available for criminal use, public protection is paramount and deterrent, punitive sentences are required. That authority involved large-scale professional suppliers and was factually much more serious, but did not diminish the public risk created by deliberate handgun conversion.

5. The offenders’ previous good character, personal circumstances, guilty pleas and admissions were relevant. They did not, however, outweigh the potentially incalculable public harm of supplying lethal firearms to criminals. The sentencing judge had given insufficient weight to that risk.

• Court of Appeal (Criminal Division) On the Attorney General’s references under section 36 of the Criminal Justice Act 1988, the court granted leave, held the sentences lenient, and declined to increase them.
• Sentencing court The offenders pleaded guilty to firearms conspiracies and received 30 months’ and 25 months’ imprisonment. The sentencing court is not identified in the judgment.