Yong v R

An accessory designed or adapted to diminish a weapon’s flash is a firearm for the purposes of Firearms Act 1968, subject to the statutory exclusion for accessories to weapons outside the certification regime. A contention that an accessory has a legitimate mixed-use must have a proper evidential basis. Where the Crown establishes a prima facie case that the article is an accessory to a controlled weapon, a defendant who relies on the exclusion bears an evidential burden to raise its possible use with a non-controlled weapon. If that burden is met, the character of the accessory is a question for the jury. Where the evidence supports only use with a controlled lethal-barrelled weapon, there is a case to answer and the conviction is safe.

The appellant pleaded guilty at Peterborough Crown Court to possessing two flash eliminators without a firearm certificate, contrary to section 1(1)(a) of the Firearms Act 1968. He received a 12-month conditional discharge. He had been acquitted of explosives counts and other explosives counts were not pursued.

The Court of Appeal had previously rejected his sentence appeal: [2015] EWCA Crim 9. It granted leave to appeal against conviction. The appeal contended that the flash eliminators might be mixed-use accessories, capable of use with non-controlled weapons, and that the judge should therefore have found no case to answer or left that issue to the jury.

1. Appeal dismissed. The conviction was safe. The trial judge had correctly answered the preliminary question actually put to him, which proceeded on the concession that the flash eliminators were accessories to controlled firearms. The newly advanced mixed-use issue had not been put to the judge and could not have affected the appellant’s guilty plea.
2. Under section 57(1) of the Firearms Act 1968, an accessory designed or adapted to reduce the flash caused by firing is included within the definition of a firearm. The concluding words of that provision also extend the exclusions in section 1 to accessories to excluded weapons. Thus an accessory to a non-controlled weapon may fall outside the section 1 certification requirement.
3. The Crown evidence established that both flash eliminators were accessories to either section 1 or section 5 weapons. There was no evidence that either had a potential use with a shotgun, air weapon, or another non-controlled weapon. The appellant’s own correspondence and interview account instead envisaged their use with a lethal-barrelled weapon. The judge could therefore not have withdrawn the count for want of a case to answer.
4. The court considered R v Buckfield [1998] EWCA Crim 1322 and stated that, where there is an evidential basis for a mixed-use issue, the jury should decide whether the article is an accessory to a controlled weapon or to a non-controlled item. The court added that, once the Crown has made a prima facie showing that the article is an accessory to a weapon requiring certification, the defence bears an evidential burden if it seeks to rely on the statutory exclusion. That condition was not met on the evidence in this case.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2015] EWCA Crim 852.
• Court of Appeal (Criminal Division): previously rejected the appellant’s appeal against the 12-month conditional discharge: [2015] EWCA Crim 9.
• Crown Court at Peterborough: the appellant pleaded guilty to possessing two flash eliminators without a firearm certificate and received a conditional discharge for 12 months.