Goldsborough v R

Section 39(4) of the Anti-social Behaviour Act 2003 creates a transitional regime for a person who already possessed a self-contained gas cartridge air weapon when the new prohibition came into force. Such a person may continue to possess the weapon without the Secretary of State’s authority, but must hold a firearm certificate under section 1 of the Firearms Act 1968.

Failure to obtain that certificate is a section 1 offence. It does not convert the possession into the distinct and more serious section 5 offence. Clear statutory language would have been required to impose that consequence, particularly given the five-year minimum sentence attached to section 5.

The appellant had lawfully acquired a Brocock self-contained gas cartridge air pistol in the late 1990s. It was found during a search of his home in March 2014. Following a preliminary ruling at Durham Crown Court, he pleaded guilty to possessing a prohibited weapon contrary to section 5(1)(af) of the Firearms Act 1968.

He appealed against conviction. The issue was the effect of section 39(4) of the Anti-social Behaviour Act 2003 on a person who possessed such a weapon when the prohibition took effect on 30 April 2004 but did not obtain a firearm certificate. The court also considered, after allowing the appeal, whether it could order a retrial or take an alternative procedural course.

1. Appeal allowed. The conviction under section 5(1)(af) of the Firearms Act 1968 was quashed.

2. Section 39(4) of the Anti-social Behaviour Act 2003 established a transitional mechanism for existing owners of self-contained gas cartridge air weapons. It permitted their continued possession under subsection (a), and made section 1 of the 1968 Act apply under subsection (b). It did not require authority from the Secretary of State.

3. The wording that section 1 “shall apply” meant that an existing owner who did not obtain a firearm certificate committed a section 1 offence, not a section 5 offence. Section 39(4) contained neither the clear language nor a time limit that the Crown’s construction required. The court rejected an interpretation that would expose such an owner to section 5’s five-year minimum sentence merely for failing to obtain a certificate by 30 April 2004.

4. The explanatory materials and unreasoned Crown Court decisions did not assist in construing the penal statute. Mehmet (2006) 1 Cr App R (S) 75 concerned only whether exceptional circumstances justified departure from the minimum sentence following a guilty plea, and did not decide the present construction question.

5. The court declined to exercise powers under section 3A or section 7 of the Criminal Appeal Act. Section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 conferred no additional free-standing power. It remained for the Crown Prosecution Service to decide whether to pursue a section 1 charge by another lawful route.

• Court of Appeal (Criminal Division): allowed the appeal against conviction and quashed the conviction: [2015] EWCA Crim 1278.
• Durham Crown Court: following a preliminary ruling, the appellant pleaded guilty to possession of a prohibited weapon contrary to section 5(1)(af) of the Firearms Act 1968.