Lord Advocate's Reference (No 1 of 2020)
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk (Dorrian),Lord Glennie,Lord Turnbull |
| Judgment Date | 17 June 2020 |
| Neutral Citation | [2020] HCJAC 25 |
| Docket Number | No 29 |
| Date | 17 June 2020 |
| Court | High Court of Justiciary |
[2020] HCJAC 25
Lord Justice Clerk (Dorrian), Lord Glennie and Lord Turnbull
McQuillian v HM Advocate Stirling Sh Ct, 16 July 2019, unreported
Shorter Oxford English Dictionary (6th Stevenson ed, Oxford University Press, Oxford, 2007)
Justiciary — Statutory offences — Firearms — Stun gun resembling and functioning as torch — Whether disguised firearm — Firearms Act 1968 (cap 27), sec 5(1A)(a)
RC was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate with, inter alia, possessing a firearm without a firearms certificate and possessing a disguised firearm in respect of the same firearm. The respondent pled not guilty and the cause came to trial before Lord Arthurson and a jury at the High Court of Justiciary in Glasgow, on 12 December 2019. The sole question at trial was whether the firearm was disguised. The respondent was convicted of possessing a firearm without a firearms certificate and was acquitted of possessing a disguised firearm.
The Lord Advocate thereafter petitioned the High Court of Justiciary in terms of sec 123 of the Criminal Procedure (Scotland) Act 1995 for its opinion on the following questions: “1. Did the trial judge err in directing the jury to acquit the accused of charge 2 — possessing a stun gun disguised as another object, namely a torch — if Crown Label 16 was, on their view of the facts, a dual purpose item or weapon? 2. Is it a defence to a charge of possessing a disguised firearm that the firearm is a ‘dual purpose item or weapon’? 3. Where a firearm has the appearance of another object, does the fact that it functions as that other object as well as a firearm deprive its appearance of any element of disguise? 4. How should a jury be directed on the meaning of ‘disguised’, in the context of Section 5(1A)(a) of the Firearms Act 1968 as amended? 5. What is the relevance, if any, of dual purpose in determining whether a firearm is disguised?”
The Firearms Act 1968 (cap 27) (‘the 1968 Act’), sec 1(1)(a), provides, inter alia, that a person commits an offence if they possess a firearm without holding a firearms certificate in force at the time. Section 5(1A)(a) provides, inter alia, that a person commits an offence if they possess a firearm which is disguised as another object.
The Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’), sec 123(1), provides, inter alia, that where a person tried on indictment is acquitted or convicted of a charge, the Lord Advocate may refer a point of law which has arisen in relation to that charge to the High Court of Justiciary for its opinion.
The respondent was indicted on, inter alia, charges of possessing a firearm without a firearms certificate and possessing a disguised firearm. Both charges related to the same firearm. The firearm was a stun gun which looked like and functioned as a torch. The sole issue at trial was whether the firearm was disguised as another object. At trial, the respondent focused on the fact that the item had two operational functions and argued that the combination of a stun gun and a torch was a sensible combination of functions. The trial judge directed the jury that the key question was whether the firearm was disguised as a torch or was instead a dual-purpose item. The jury acquitted the respondent of possessing a disguised firearm.
The Lord Advocate thereafter petitioned the High Court of Justiciary in terms of sec 123 of the 1995 Act for its opinion on: (1) whether the trial judge had erred in directing the jury to acquit the accused of the charge of possession of a stun gun disguised as another object if the item had been, on their view of the facts, a dual-purpose item or weapon; (2) whether it was a defence to a charge of possession of a disguised firearm that the firearm was a dual-purpose item or weapon; (3) where a firearm had the appearance of another object, whether the fact that it functioned as that other object as well as a firearm deprived its appearance of any element of disguise; (4) how a jury ought to be directed on the meaning of “disguised”, in the context of sec 5(1A)(a) of the 1968 Act; and (5) the relevance, if any, of dual purpose in the determination of whether a firearm was disguised.
The Lord Advocate submitted that the trial judge had erred in directing the jury that, if they concluded that the object was a dual-purpose item, then they should acquit the respondent.
The respondent disputed that the jury had been presented with a stark choice between disguised and dual purpose and that, if a combination of functions of the item was a sensible one, then that may indicate no intention to deceive about the nature of the device.
Held that: (1) the trial judge had erred in presenting the case to the jury as one where they could conclude either that the weapon was disguised or that it was an item where two functions were reasonably combined (para 17); (2) it was not a defence to a charge of possessing a disguised firearm that the firearm was a dual-purpose item or weapon, nor did the fact that a firearm possessing the appearance of another item functioned also as that other item necessarily deprive its appearance of any element of disguise (para 18); (3) whether a firearm was disguised required a straightforward objective assessment of whether the firearm was presented in such a way as to conceal that, among its functions, was that of a firearm which was a question of fact (para 19); (4) the normal meanings of the word ‘disguise’ were to be adopted and the matter required to be determined from the perspective of the ordinary person (para 20); (5) whether the combination of functions of...
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