Criminal Offences Relating to Firearms: General Restrictions on Shooting and Carrying Guns
| Author | Laura Saunsbury/Nick Doherty |
| Pages | 211-234 |
Chapter 15
Criminal Offences Relating to Firearms: General Restrictions on Shooting and Carrying Guns
INTRODUCTION
15.01 In addition to the requirements of the law referred to in earlier chapters relating to the possession of firearms, shotguns and specially dangerous air weapons, a number of criminal offences have been created relating to the possession and use of them and their associated ammunition. For these offences it matters not that you may be the lawful owner of the item found in your possession. Further, with the exception of the ‘possession only’ offences dealt with at para 15.05 et seq, it should be noted that where a firearm or shotgun certificate is required for the gun in question, even if you have been granted the relevant certificate, this will not provide you with a defence to these offences.
15.02 The usual range of penalties will be available to the criminal courts, which may include anything from a fine up to life imprisonment. Keep in mind that most, but not all offences that relate to the possession and use of prohibited weapons carry a minimum mandatory 5-year sentence, unless there are found to be exceptional circumstances which would make it ‘unjust in all the circumstances’ to impose such a sentence. The exceptional circumstances can relate to either the offence or the offender, as explained in the following section relating to ‘possession’.
15.03 Depending on the length of the prison sentence, this may then result in a prohibition on possessing all types of firearms including air weapons, which could last for the rest of your life.
212 The Firearms Law Handbook
any ammunition found in your possession at the time of the offence.
15.04 This is not a criminal law textbook and therefore does not seek to address every possible detail relating to the offences. A summary of the more serious criminal offences that can be committed with a firearm is included with an emphasis on the particular issues which have arisen in recent years which are specific to these firearms offences. These may be of interest to the general reader and will assist practitioners. We also deal with some offensive weapons offences, as shooters often need to carry knives with them.
UNLAWFUL POSSESSION OF FIREARMS AND AMMUNITION
15.05 This section deals with what are referred to at para 15.01 as the ‘possession only’ offences. Chapters 1 to 4 explain in detail the classification of section 1 firearms, shotguns, prohibited firearms and the ammunition corresponding to each. Also set out in those chapters are the need for a firearm or shotgun certificate, as appropriate, and the exceptions where the person in possession will be exempt from the usual requirement to hold a certificate. Perhaps unsurprisingly, if you are found in possession of any such item without holding a valid certificate,
possession.
15.06 For these offences all that needs to be proved is that you were in possession of the firearm or ammunition in question, which is often not in dispute, and that in law it is classified as a section 1 firearm or ammunition, a shotgun, or as a prohibited firearm or prohibited ammunition, as charged. This will be enough for the offence to have been committed and there is no need to establish that you had it with you in a public place, fired it or did anything else with it, nor that you had any particular intent. Neither will it afford you a defence that you had the item in your possession in your own home or other private premises. These are therefore what lawyers refer to as offences of ‘strict liability’.
POSSESSION OFFENCES
15.07 These are offences under sections 1, 2 and 5 of the FA 1968, depending on the category of the item in question.
‘Possession’
15.08 Firearms law is unique in this country in respect of the level of knowledge that is necessary on the part of the defendant in order to be convicted of possession of firearms or ammunition. The mental element is none at all, as long as it can be proved the defendant was aware he had control of the container. If you have control of an item which is in fact a firearm you are guilty; knowledge as to the nature of the item is immaterial.
214 The Firearms Law Handbook
15.09 Decided cases not only confirm this but explain the concept of dual possession. For example, in Cotton and Treadwell, C had left two of his shotguns with T for safekeeping while C and T went on holiday together and for later cleaning by T. The court held that during that holiday period C had ‘proprietary possession’ of the guns and T had ‘custodial possession’.
15.10 Further, if you are aware that you have possession of a friend’s bag, even though you could not reasonably have known it contained a firearm, you are guilty.
15.11 It is often helpful to ask the question ‘Did he have control of the item?’ That covers almost every situation.
15.12 If the court were to accept that a person had no knowledge that the firearm was in his possession, although no defence, it would likely result in an absolute discharge.
15.13 One recurring anomaly is the view taken by the police where a certificate holder has taken his guns to a dealer, or to a friend who has authority to hold them, commonly where his certificate is about to expire. Readers will appreciate that on expiry of a certificate the holder is in unlawful possession and commits an offence. Following the line of cases in the footnotes below, the owner will still have ‘proprietary possession’ of the guns, as he is still the owner, even if they are with the dealer. The police never consider the owner to be in possession in these circumstances. This is perhaps because the owner cannot have the guns returned to him without producing a valid certificate and therefore the ‘possession’ does not matter.
Exceptions and defences in possession cases
15.14 The most obvious exception is where a person has a valid certificate or authority (including an RFD or visitor’s permit) to possess the firearm in question.
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