Bewley v R

A weapon does not fall within the definition of a firearm merely because, when combined with external equipment, it can be made to discharge a missile. The capacity required by section 57(1) concerns the particular item. The need for expert operation alone is immaterial, but the use of external tools to make a starting pistol fire is a process of conversion.

After the Firearms Act 1982, an imitation firearm that is readily convertible must be assessed under that Act's express conditions, including the requirements concerning special skill and ordinary tools, and its statutory defence. The earlier approach of treating an easily adaptable dummy weapon as a firearm cannot bypass those safeguards.

The appellant possessed a modified Kimar starting pistol while police attempted to arrest him. A forensic scientist discharged a specially selected pellet from it only by clamping the pistol and using a mallet and punch. Both experts accepted that the pellet was lethal when so discharged.

At Snaresbrook Crown Court, the judge ruled on 1 March 2011 that the pistol was a prohibited firearm contrary to section 5(1)(aba) of the Firearms Act 1968. The appellant then pleaded guilty. He appealed against conviction, and also sought permission to appeal against a consecutive two-year sentence for escape from lawful custody. The central issue was whether the starting pistol was a lethal-barrelled weapon from which a missile could be discharged within section 57(1) of the 1968 Act.

1. Appeal against conviction allowed. The starting pistol was not a firearm within section 57(1) of the Firearms Act 1968. The conviction under section 5(1)(aba) was quashed.

2. The fact that an expert alone can operate a weapon does not itself remove its capacity to discharge a missile. That was the limited significance of R v Law [1999] Crim LR 837 and the related authorities. But the statutory question concerned the capacity of the particular item, rather than its capacity when used with separate equipment.

3. The Firearms Act 1982 had changed the statutory context in which earlier decisions such as R v Freeman [1970] 54 Cr App 251 and Cafferata v Wilson [1936] 3 All ER 149 had been understood. An imitation firearm that is readily convertible falls within the statutory scheme only if the conditions in section 1 are met. Those conditions require consideration of special skill, the tools used, and, where raised, the statutory defence. The prosecution could not avoid those safeguards by characterising an item as a firearm simply because it could easily be converted.

4. Conversion was not confined to a permanent physical alteration. It included adapting the manner in which an imitation firearm was used so that it could discharge a missile. Here, clamping the pistol, ramming home the pellet and striking the firing pin with external tools were acts of conversion. Without those items, the pistol had no capacity to discharge a missile. There were no findings capable of establishing that it was readily convertible under the 1982 Act, and the appellant had not had the opportunity to advance the section 1(5) defence.

5. The pistol was also not a component part of a lethal or prohibited weapon. The word such in section 57(1)(b) required the relevant weapon itself to meet the definition. The court agreed with the reasoning in Kelly v MacKinnon [1982] SCCR 205 and held that Cafferata v Wilson did not accurately express the present law on that point.

6. Appeal against sentence allowed. Permission to appeal was granted. Once the firearms conviction was quashed, the consecutive two-year sentence for escape from lawful custody was manifestly excessive. It was quashed and replaced with 18 months' imprisonment.

• Court of Appeal (Criminal Division) Allowed the appeal against conviction, quashed the conviction, and allowed the appeal against sentence, substituting 18 months' imprisonment: [2012] EWCA Crim 1457.
• Snaresbrook Crown Court On 1 March 2011, the judge ruled that the starting pistol was a prohibited firearm under section 5(1)(aba) of the Firearms Act 1968. The appellant pleaded guilty following that ruling.