Heddell, R. v

An item which has already been converted into a firearm within section 57(1) of the Firearms Act 1968 does not cease to be a firearm merely because a temporary disablement must be removed or minor attention is needed before it can fire. That differs from an imitation firearm which still requires conversion and is governed by section 1 of the Firearms Act 1982.

The distinction is one of fact and degree for the jury. A direction is proper where it fairly presents the competing expert evidence and requires acquittal unless the prosecution proves that the item was already a firearm. Such a direction preserves, and may be more favourable than, the statutory defence for a readily convertible imitation firearm.

The appellant was convicted at the Crown Court at King’s Lynn of possessing a prohibited firearm and was sentenced to five years’ imprisonment. The item was a replica MP40 sub-machine gun which had undergone skilled modifications enabling it to fire live ammunition. A threaded steel bolt had been inserted into its chamber, temporarily preventing it from firing, but could be removed quickly.

The prosecution contended that the conversion to an actual firearm was complete and that the bolt was only a temporary disablement. The defence contended that the item remained an imitation firearm which was readily convertible, and that the appellant should be able to rely on the defence under section 1(5) of the Firearms Act 1982. The appeal challenged the judge’s treatment of that distinction and the jury directions.

Appeal dismissed. The conviction was safe because the judge correctly left the central factual issue to the jury and directed it fairly.

1. The Firearms Act 1982 creates no free-standing offence. It extends the Firearms Act 1968 regime to qualifying imitation firearms which are readily convertible. Its provisions do not displace the question whether an item is already a firearm within section 57(1) of the 1968 Act.

2. R v Bewley [2012] 2 Cr App R 27 qualified the earlier approach in R v Freeman [1970] 54 Crim App Rep 251 for imitation firearms requiring conversion. However, it did not alter the position where an item already meets the section 57(1) definition but has a temporary fault or needs only minor repair or attention before it can discharge a missile.

3. The jury had to decide whether the replica had already been converted into a lethal barrelled weapon, with the removable bolt functioning only as a temporary disablement, or whether it remained an imitation firearm requiring further conversion. That was a question of fact and degree on the expert evidence.

4. The summing-up did not withdraw the defence case or indicate the judge’s own view. The jury was told that it could convict only if sure that the prosecution’s case was correct. If it thought that the item might be an imitation firearm, it had to acquit because the prosecution had not proved possession of an actual firearm. That direction did not deprive the appellant of the defence under section 1(5) of the 1982 Act; it was more favourable because it did not require him to establish that defence. The further direction in response to the jury’s question caused no unfairness.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction in [2016] EWCA Crim 443.
• Crown Court at King’s Lynn — convicted the appellant of possessing a prohibited firearm and imposed a sentence of five years’ imprisonment.