Rogers v R

Component parts of an imitation firearm cannot conclusively be treated as component parts of a firearm where the evidence leaves a real factual issue about whether conversion was effective. A judge must not withdraw that issue from the jury by directing that the parts are a firearm.

Under the Firearms Act 1968, proof that a bullet could be discharged is a necessary requirement in the relevant statutory analysis. Where a firearm conviction has aggravated sentence for associated ammunition possession, quashing that conviction may require a reduction so that the total sentence reflects only the offences proved.

The appellant pleaded guilty at Liverpool Crown Court to possessing cocaine with intent to supply. He was later convicted before a jury of possessing a firearm and ammunition without a firearm certificate. The alleged firearm comprised a modified barrel, frame and trigger from a blank-firing revolver. Its cylinder was missing.

The prosecution contended that the altered parts were component parts of a prohibited firearm under the Firearms Act 1968. Expert evidence disagreed about whether the modification had converted the parts from components of an imitation firearm into components of a firearm. The trial judge directed the jury that the items were a firearm as a matter of law.

The appellant appealed against the firearm conviction and against the resulting sentence. The central issue was whether the judge could properly remove the firearm-status question from the jury.

1. Appeal against conviction allowed. The conviction for possessing a firearm without a certificate was unsafe and was quashed.

2. The court held that the evidence did not permit the trial judge to direct that the barrel, frame and trigger were component parts of a firearm. The missing cylinder, the uncertain quality and effect of the barrel modification, and the absence of testing or evidence of a compatible firing cylinder left a genuine factual issue. The defence expert’s evidence supported the conclusion that the components might remain components of an imitation firearm.

3. Section 57(1) of the Firearms Act 1968 includes component parts of a lethal or prohibited weapon in the definition of firearm. However, the statutory language did not eliminate the need for proof capable of establishing that these particular parts had become components of such a weapon. At the least, that issue was for the jury.

4. The court added that, absent the admission made at trial, there would also have been a factual issue whether a bullet could have been discharged from the device. That was a necessary requirement when section 1 was read with sections 5 and 57 of the Act. It was unnecessary to determine the further argument about lethality.

5. Appeal against sentence allowed in part. The firearm conviction had aggravated the sentence for ammunition possession. The court substituted two years’ imprisonment on that count. The three-year consecutive sentence for the admitted cocaine offence remained, producing a total sentence of five years, which was appropriate for the offences proved.

• Court of Appeal (Criminal Division) — In [2011] EWCA Crim 1459, the court allowed the appeal against the firearm conviction, quashed that conviction, and allowed the sentence appeal to the extent of reducing the ammunition sentence.
• Liverpool Crown Court — The appellant pleaded guilty to possessing cocaine with intent to supply. Before His Honour Judge Boulton and a jury, he was convicted of possessing a firearm and ammunition without a firearm certificate. He received four years for the firearm count, three years concurrent for ammunition, and a consecutive three years for the drugs offence.