Ashton, R. v [2007] EWCA Crim 234

Case No 2006/3823/C5[2007] EWCA Crim 234IN THE COURTS-MARTIAL APPEAL COURTVenue Royal Courts of JusticeStrandLondon, WC2Date Thursday, 1 February 2007B E F O R E:THE VICE PRESIDENT(LORD JUSTICE LATHAM)MR JUSTICE FORBESMR JUSTICE TUGENDHAT
Between
R E G I N ACrown-v-
Between
DANIEL ASHTON
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R CLARK appeared for APPELLANTMR D RICHARDS appeared for CROWN
J U D G M E N T
[1]THE VICE PRESIDENT: On 12th June 2006 at a General Court Martial held at Bulford, this appellant was charged with one offence under section 70 of the Army Act, namely the commission of a civil offence, the offence being attempting to sell a prohibited weapon. Following a ruling of the Judge Advocate at the end of the prosecution case, he pleaded guilty to that offence and on 27th June 2006 he was sentenced to six months' military detention suspended for one year and reduced to the ranks. He appeals against both conviction and sentence with leave of the single judge.[2]The facts can be shortly stated. The appellant was, and maybe still is, a gun enthusiast who collected weapons and items relating to weapons and, as many other collectors like him do, would buy and sell such items on e-Bay. Many of the items he sold were accessories such as magazines or gun cleaning kits. However, on 21st April 2001 he listed the gas plug of a general purpose machine gun for sale. That was identified by the Ministry of Defence Police; and they searched his home where they found the gas plug which he was intending to sell. That gas plug was alleged to be a component of an automatic weapon; and as a result he was charged with the offence to which we have referred.[3]The relevant statutory provisions of the civil offence are sections 5 and 57 of the Firearms Act 1968. By subsection (1) of section 5:
"A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers- (a) any firearm which is so designed or adapted that two or more missiles can be successfully discharged without repeated pressure on the trigger."
By section 57(1) it is provided:
"In this Act, the expression 'firearm' means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes- ... (b) any component part of such a lethal or prohibited weapon."
The only relevant exception to those prohibitions is contained in section 8 of the Firearms (Amendment) Act 1988 which provides that an offence under section 5 is not permitted if a person has in his possession a firearm rendered incapable of discharging any shot, bullet or other missile and it bears a mark approved by the Secretary of State for denoting that fact and that it has been de-activated by one of two companies specifically identified in the principal act and finally that the company itself has certified in writing that the work in question has been carried out on the firearm in question.[4]The evidence put before the Court Martial by the prosecution was essentially agreed. The gas plug was accepted to have been a gas plug which formed a necessary part of a general purpose machine gun and was in working order. The only relevant question which was raised by Mr Blades acting on behalf of the appellant at the Court Martial was the fact that the prosecution expert accepted that he could not say whether the gas plug came from a de-activated weapon (that is a weapon complying with the section to which we have referred) or not. On the basis of that answer, Mr Blades at the end of the prosecution case submitted that the prosecution had failed to prove its case on the grounds that it had failed to establish that the gas plug had not formed part of a de-activated weapon and accordingly was exempt from the provisions of section 5 and 57.

The Judge Advocate, having considered the submission, ruled in the following terms:

"We have heard so far in evidence, evidence from the prosecution expert Mr Ridyard, his evidence followed on from a series of admissions common to both sides, which effectively deal with the entirety of the prosecution case, save to preserve the one line of issue in this case, which is whether our exhibit one, a gas plug, is in fact properly called a component part of a General Purpose Machine Gun. So it is common ground on the basis of the evidence the court has heard, that exhibit one is a gas plug for a General Purpose Machine Gun. It is common ground that a General Purpose Machine Gun cannot function as a General Purpose Machine Gun, without a gas plug... And it is unchallenged evidence that the particular gas plug in this case, our exhibit one, was tested and performed its function as a gas plug correctly. Further, it is common ground that it is specifically manufactured, in the sense that it has no purpose once manufactured, other than as a gas plug in a General Purpose Machine Gun."
After citing the relevant statutory provisions,

the Judge Advocate went on as follows:

"Whether in fact our exhibit one, this particular gas plug is a component part of a prohibited weapon, is a matter of fact for the court to decide, and I refer in general terms to the proposition that must follow on from the authorities that determine whether a weapon is a firearm, is a question of fact for a court, ie jury or in this case a Board to decide, those apart (sic) as being set out in Archbold of 24-86. The accepted position between prosecution and defence, is that there is no statutory definition what a component part is, that the words have their ordinary natural meaning. I shall avoid any possibility of semantic absurdity being reached, by in due course indicating that component part for present purposes must as a matter of reasonable interpretation, mean a part that is manufactured to the purpose, in this sense of general purpose screw or washer, would not be a component part for present purposes. Similarly, a component part must be a part that if it were removed, a General Purpose Machine Gun could not function without it."
Then the Judge Advocate dealt with the submission made by Mr Blades that as the evidence could not exclude the possibility that it came from a de-activated weapon that would preclude it from being a component part as a matter of fact. The Judge Advocate having stated that as the issue went on:
"Now, it seems to me that de-activated weapons are conceptually different to component parts, here a General Purpose Machine Gun, specific provisions apply to the activated weapons, section 8 of the Firearms Amendment Act 1988 applies, that is to be found in Archbold at 24-95, but the mischief that the Firearms Act 1968 in its present context is designed to prevent or direct seems to be this, the mischief of having prohibited weapons and component parts of prohibited weapons, in any sense in general circulation. It is a matter of broad proposition if you have a component part of a prohibited weapon, that you try to sell or however you do so at your peril. It is hard to see how this gas plug could conceivably be anything other than component parts of a weapon, whatever the history of its ownership, its past usage or the circumstances of its acquisition. But I stress that is not for me to decide, that is a matter of fact for the Board to decide in due course. But whether or not as a component part, ie a properly functioning part of a General Purpose Machine Gun, it may or may not have at some stage been in a weapon that someone regarded as de-activated, does not seem to me to deal with the point at all, so I reject the submission."
[6]It seems to us that the Judge Advocate directed himself impeccably in those passages. The question posed by sections 5 and 57 are matters of fact and the only realistic conclusion to which any fact finder could come was that indicated by the Judge Advocate himself.[7]The position so far as Mr Blades' submission was concerned, which is repeated before us today by Mr Clark, seems to us to be this. Clearly the exception is a considered and careful exception and from the detailed requirements set out in the relevant statutory provision it is clear that Parliament intended to restrict tightly the operation of that exception. So long as a de-activated weapon remains in its complete state, there is therefore a justification in permitting it to be possessed or indeed traded on the open market. But it is clear from the exception that it is not intended to apply to any component part of such a weapon and that must be for the good public policy reason that once a weapon, de-activated or not, is disassembled then the parts which are then made available are capable of being re-assembled into a working weapon. The mischief to which section 57 in particular is directed therefore exists whether or not the origin of the component part is a working or a de-activated weapon. It seems to us in those circumstances that the submission by Mr Blades was properly rejected by the Judge Advocate and accordingly this appeal against conviction must be dismissed.[8]Turning then to sentence. The material before us makes it plain that the appellant was a man who had impeccable service in the army for the previous 12 or so years of service. It also makes it plain that those who were responsible for him were anxious to retain him as a serving soldier and he was held, and has always been held, in the highest regard. It was against that background that the court martial had to consider the appropriate sentence. But it also had to bear in mind that the public policy in relation to firearms is one which demands that sentences should reflect the fact that the purpose of the legislation is to prevent items capable of forming part of lethal weapons should not be made freely available. The only way in which that message can in fact be expressed is by significant sentences.[9]In the present case, it seems to us that the court martial properly reflected the public policy considerations in such cases by imposing what in relation to custody was effectively the minimum sentence which could be considered by the court martial, namely detention, and by suspending it reflected the particular circumstances in which the offence was committed. Of course to the general public policy (to which we have referred) has to be added the fact that there is a specific public policy consideration in relation to firearms offences where serving soldiers are concerned which is that they have ready access to firearms in circumstances which mean that the military authorities quite rightly seek to ensure that any transgression of the prohibitions in relation to the holding or selling of prohibited material should meet with significant punishment. It seems to us that in all those circumstances, despite the glowing reports in relation to this appellant, there is no way that we could say that the sentence in fact imposed upon him was either wrong in principle or manifestly excessive. Accordingly, we dismiss this appeal against sentence.

Cited in 1 later judgment