The Court of Appeal recently quashed a five years minimum prison sentence arising from conviction for the possession of a disguised firearm.
Steven Micklewright of Kangs Solicitors explains the situation.
The Circumstances | Possession of a Disguised Firearm
A twenty four years old Polish national was observed sitting on a wall outside a shopping centre showing some friends what, at first, appeared to be a torch.
Upon investigation by the Police, it transpired that the torch was, in fact, a Taser disguised to resemble a torch.
Following arrest and during interview, the individual accepted he knew that the item was a Taser but claimed that he had only just found it behind a wall.
He was charged with an offence of possessing a disguised firearm under s5(1A)(a) of the Firearms Act 1968 (’the Act’).
The Relevant Law | Kangs Firearms Law Advisory Solicitors
The offence charged fell within the minimum sentence provisions of section 51A of the Act.
Consequently, the Court was bound to pass a minimum sentence of five years imprisonment ‘unless the Court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify it not doing so’.
In this case, the Judge held there were no ‘exceptional circumstances’ and he imposed the minimum term.
The Appeal | Kangs Criminal Appeal Team
The imposition of the minimum sentence was appealed on the grounds that the Judge had been wrong not to find ‘exceptional circumstances’ on the facts of this particular case.
The leading authority on the approach to be adopted at sentencing in firearms cases is Avis  1 Cr. App R 420.
The approach to the finding of ‘exceptional circumstances’ under section 51A is to be found in the guidance in Rehman and Wood  1 Cr App R (S)77.
According to Avis, there are four questions to be asked:
- what sort of weapon is involved?
- what, if any, use had been made of the firearm?
- with what intention, if any, did the defendant possess or use the firearm?
- what is the defendant’s criminal record?
The guidance in Rehman is to the effect that there exist ‘exceptional circumstances’ if the imposition of a five years sentence would be arbitrary and disproportionate.
There is a clear rationale behind Parliament’s desire to impose minimum prison sentences for this type of offence and in Attorney General’s Reference No 115 of 2015 (Greenfield  2 Cr App R (S) 201, the Court said:
‘exceptional circumstances will only be found in rare cases and judges should not be swayed by sympathy for the offender’
As minimum sentences for this type of offending are more about deterrence than public protection, this has led, as in the current case, to what appear to be a number of arbitrary and disproportionate sentences.
In the current case, allowing the appeal, the Court said:
‘with the limited exception of protection for himself, the four questions identified in Avis are all answered in the applicants favour…further the applicant did not know it was illegal to have possession of a Taser…he had considerable personal mitigation…he was a young man with no previous convictions, stable employment, well regarded by his employers and engaged to be married’
How Can We Help? | Kangs Firearms Offences Defence Solicitors
Kangs Solicitors have a wealth of experience representing clients charged with an array of firearms offences including:
- possession of firearm with intent to injure
- possession of firearm with intent to cause fear of violence
- use of firearm to resist arrest
- carrying a firearm with criminal intent
- carrying a firearm in a public place
- trespassing with a firearm
- supplying firearms to minors
- certificate offences
If you require expert advice and guidance on all matters relating to firearms offences, then please do not hesitate to telephone either of the following who will be pleased to hear from you: