L, R. v [2015] EWCA Crim 5

[2015] EWCA Crim 5

Case No 20145031 C4

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CROWN COURT AT SWINDON

His Honour Judge Peter Blair QC

T20147001

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/01/2015

Before

LADY JUSTICE RAFFERTY MR JUSTICE FOSKETT

HIS HONOUR JUDGE CAREY DL (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)

Between

REGINAAppellant

‘L’Respondent

Matthew Butt for Appellant

Alexander Daymond for Respondent

Hearing Hearing date: 9 th December 2014

Judgment

[1]On 27 March 2014 in the Crown Court sitting at Swindon the Respondent L was arraigned on three counts, all contrary to the Firearms Act 1968 (“the Act”): possessing a firearm without a certificate contrary to s1(1)(a) possessing a prohibited firearm contrary to s5(1)(aba), and possessing a firearm when prohibited contrary to s21(2).

[2]He pleaded guilty to count 3, and not guilty to counts 1 and 2, challenging the definition of the alleged firearm as one such. On 3 November 2014 the judge ruled on count 1 that the item was capable of being specially dangerous, and that whether it were was a matter for a jury. On 7 November 2014 he ruled on count 2 that the Crown had not proved that it was capable of being a prohibited firearm under s5(1)(aba) of the Act and so requiring certification, and he granted leave to appeal

[3]On 25 July 2013 the Respondent was in possession of a modified Crossman 2250B carbon dioxide powered .22 calibre gun. It was not in dispute that it was a weapon, barrelled, that .22 air pellets could be discharged, and that it had sufficient power to be lethal.

[4]The dispute was as to the application of the legislation.

[5]The judge ruled that the issue on count 2 was whether as a matter of law it were capable of being a prohibited weapon within the meaning of s5(1)(aba). He concluded that the Respondent’s argument on the meaning of “air weapon”, namely, that any air rifle, air gun or air pistol was to be excluded from the ambit of s5(1)(aba), was no less tenable than that propounded by the Appellant and that since there was a logical flaw in the wording of the legislation, it should be given the interpretation most favourable to the Respondent. No reasonable jury properly directed could, be sure the Respondent was in possession of a prohibited weapon contrary to s5(1)(aba) of the Act, because it was an “air weapon” within the possible meanings of that term as it appeared in s5(1)(aba)

[6]The Crown argues that the judge failed to apply the definition of air weapon in s1(3)(b) of the Act and, was wrong to conclude that the weapon was not prohibited under s5(1)(aba) of the Act. The Respondent disputes the Appellant’s interpretation and submits that any doubt should be resolved in his favour.

[7]This court may not reverse a ruling unless satisfied(a) that the ruling was wrong in law,

(b) that it involved an error of law or principle, or

[8]To understand the competing arguments it is convenient to rehearse in full the relevant parts of the judge’s ruling. Having set out the statutory framework he said: “10. The way in which sections 1(1), 57(4) and 1(3)(b) have been drafted implies, say the Prosecution, the following propositons:(1) the possessor of a firearm does not have to have a certificate for it if it is an air weapon; and

[11]In order to determine the parameters of the ‘air weapon’ exemption from needing a firearms certificate under section 1 it is therefore necessary to examine which air rifles/gunds/pistols are:(i) not prohibited under section 5(i); and

(ii) not ‘specially dangerous’. Putting it the other way around: if it is a s.5(1) ‘prohibited weapon’ or if it is ‘specially dangerous’, then – (a) it is not an ‘air weapon’ and (b), if it is a ‘firearm’, it requires a certificate.

[12]Prohibited Weapons. Section 5(1) is concerned with categories of weapons and ammunition which are called “prohibited weapons and ammunition” (see s.5(2)). These have a different system of control, over and above the licensing/certificate system required for firearms under section 1. Section 5(1) articles require authorisation by ‘the Defence Council’. When enacted in 1968, section 5(1) and 3 sub-subsections, lettered (a), (b) & (c). Only the first of those could possibly have concerned an air weapon discharging .22 pellets. It prohibits possession (etc) of “…(a) any firearm which is so designed or adapted that two or more missiles can be successively discharged without repeated pressure on the trigger.”

[13]Specially dangerous air rifles/guns/pistols. Rules have been made under section 53 of the 1968 Act, namely the Firearms (Dangerous Air Weapons) Rules 1969 (set out at Archbold 24- 12). Under those Rules, if an article is an air pistol which is capable of discharging a missile so that the missile has, on being discharged from the muzzle of the weapon, kinetic energy of 6ft. 1b or less, it is not a “specially dangerous” air weapon. Further, if it is an air weapon other than an air pistol, which is capable of discharging a missile so that the missile has, on being discharged from the muzzle of the weapon, kinetic energy of 12ft. 1b or less, it is not a “specially dangerous” air weapon.

[14]Until 1997, therefore, it could have been said with confidence that the legislature intended to exempt from firearms certification the possessor of an air pistol which only discharged one missile at a time with a kinetic energy of 6ft. 1b or less, and the possessor of an air rifle which only discharged one missile at a time with a kinetic energy of 12ft 1b or less.

[15]Unfortunately subsequent complexity has arisen by the amendment of the legislation in 1997, making it impossible to state the law with the same degree of clarity. As I observed during oral argument, the logical maze ought to lend itself to solution by the mathematical techniques of ‘propositional calculus’ or by trying to draw ‘Venn diargrams’ of the different categories and where they overlap.

[16]Section 5(1) has been amended by the addition of 6 further sub-sections which prohibit a range of additional categories of weapons and ammunition. For the purposes of this case I need refer only to the weapons prohibited since 1997 by s.5(1)(aba) because the Defendant is charged in Count 2 with possession of such an article. That sub-section reads:

“(aba) any firearm which either has a barrel less than 30cm in length or is less than 60cm in length overall, other than an air weapon…”

My underlined emphasis reveals that the definition of the additional weapons now prohibited by s.51(1)(aba) provides an exemption for ‘air weapon’.

[17]This definition of a prohibited weapon in s.5(1)(aba) creates the conundrum over which the advocates before me grappled in argument. The problem is that it has created an unsolvable circular loop of reasoning, because the very definition in s.1(3)(b) of ‘an air weapon’ now incorporates that self-same term within its definition (in s5(1)(aba). It is not logically possible to define a term by reference to a definition which itself includes the very term which one is seeking to define.

[18]The legislation provides that the definition of an ‘air weapon’ under the 1968 Act (s57(4)) is to be by reference to it being an air pistol/gun/rifle which is not a s.5(1) ‘prohibited weapon’, nor one which is ‘specially dangerous’ (s.1(3)(b); however, at the same time, the s.5(1)(aba) category of ‘prohibited weapon’ (which forms part of the definition of what is not an air weapon) then itself creates an exception for ‘an air weapon’ – which is precisely the term whose definition is being sought.

[19]This part of the legislative definition appears to create an infinite circularity of reasoning as to what ‘an air weapon’ is. Putting it another way: an article is not ‘an air weapon’ under s.1(3)(b) if it is prohibited under s.5(1), but you can only come to a conclusion as to whether it is prohibited under s5(1)(aba) if you have decided that it is not ‘an air weapon’, which produces an unsolvable set of circular propositions.

[20]In oral argument the Defence suggested that the Prosecution analysis must be that the words ‘other than an air weapon’ in s.5(1)(aba) is merely an inconvenient unnecessary surplusage. However the Defence argued that that cannot be a proper interpretation of express statutory language because it would not have been included otherwise. The Defence argued, instead, that an ‘air weapon’ in the context of the phrase ‘other than an air weapon’ in s.5(1)(aba) ought to be given its natural meaning used in common parlance, rather than the meaning ascribed to it by s.57(4).

(b) Firearms Act 1968, namely:

“...an air weapon (that is to say, an air rifle, air gun or air pistol)…”

. By so doing, those Rules succeeded in avoiding the circularity which was created by the wording of s.5(1)(aba).

[21]The Prosecution argued that s.57(4) expressly states that there is only one meaning of an air weapon for the purposes of the Act, namely that set out in s.1(3)(b). Therefore there is no room for the Defence to argue that it can mean something different in s.5(1)(aba).

[22]Perhaps prompted by some questions I asked Mr Dyson myself, the Prosecution disagreed with the propositions attributed to it by the Defence (set out in paragraph 20, above). In essence I think their argument is that you should start with the exclusive s.1(3)(b) definition of an ‘air weapon’; which then takes you in this case to an examination of s.5(1)(aba) takes you back to the definition in s.1(3)(b) of ‘an air weapon’; but this time you should ignore the circular loop back to s.5(1) (from whence you have just come) and now only apply the second part of the definition in s.1(3)(b) – as to whether it is not of a type which is ‘specially dangerous’.

[23]They asserted that a short, but low powered air pistol or air rifle, must be the reason for the exempting words at the end of s.5(1)(aba) “other than an air weapon”. Accordingly, the potential exemption from the s5(1)(aba) offence could be expressed thus: IF (the article is a firearm with a barrel length of less than 30cm OR it has an overall length of less than 60cm) (i.e. the s.5(1)(aba) ‘short firearm’ s.5(1) offence AND (it is an air pistol producing no more than 6 ft 1b missile kinetic energy OR is an air weapon other than a pistol producing no more than 12 ft 1b missile kinetic energy) THEN ‘not an air weapon’ in s.5(1)(aba) exempts only those persons who possess short firearms which are not ‘specially dangerous’

[24]However, the problem with this analysis by the Prosecution is that it takes for its definition of an ‘air weapon’ for the purposes of those words used in s.5(1)(aba) only the second part of the definition in s.1(3)(b) (low powered weapons) and not the whole of it – which includes the circular phraseology in s.5(1)(aba).

[25]Subsequently to the hearing it has been pointed out to me (in an email from the Prosecution advocate) that the recently updated Home Office Guidance on Firearms Licensing Law (published October 2014) propounds his interpretation of the Act. Of course that document is simply an optinion of the Home Office and does not necessarily represent a definitive statement in law. At paragraph 2.44 it declares:

“Any air pistol which either has a barrel less than 30 cm in length or is less than 60 cm in length overall, with a muzzle energy in excess of 6 foot 1bs is a prohibited firearm.”

[26]The Defence would argue that, notwithstanding the insoluble circularity of the propositions identified above, a more accurate interpretation of the potential exemption from an offence under s.5(1)(aba) should be set out as follows: IF (the article is a firearm with a barrel length of less than 30 cm OR it has an overall length of less than 60 cm) BUT (it is ‘an air weapon’) (as I have indicated, because of the circularity of the proposition, this begs the question as to what ‘an air weapon’ here means) (i.e. the s.5(1)(aba) ‘short firearm’ s.5(1) exemption) OR (Either it is an air pistol producing no more than 6 ft 1b missile kinetic energy OR is an air weapon other than a pistol producing no more than 12 ft 1b missile kinetic energy) (i.e. it is not an air weapon of a type which is ‘specially dangerous’) THEN the possessor has a defence to an allegation of possessing a firearm in breach of s.5(1)(aba).

[27]Accordingly, the Defence submits that ‘an air weapon’ for the purposes of the phrase “other than an air weapon” in s.5(1)(aba) should be interpreted quite independently of the words used in s.1(3)(b). They argued that s.1(3)(b) may be taken to have been a definition of ‘an air weapon’ which was principally created for the purposes of the licensing regime of firearms certificates under s.1, which initially worked effectively as a universal definition for that expression in the Firearms Act (as stated by s.57(4)). However, they suggested that whoever drafted s.5(1)(aba) probably overlooked the fact that the previous universal definition for the expression in the Act would no longer work when “other than an air weapon” was added as a safety valve to this otherwise punitive prohibition.

[28]In retrospect, and with the advantage of hindsight, another route which might have solved the logical problem in favour of the way advocated by the Defence would be if the closing bracket at the end of the wording of s.1(3)(b) was instead placed in the same location as it is in the 1969 Rules, so that it would read:

“an air weapon (that is to say, an air rifle, air gun or air pistol which does not fall within section 5(1) and which is not of a type declared by rules made by the Secretary of State under section 53 of the Act to be specifically dangerous.”

Interestingly this seems to be the approach which the authors of Blackstone’s Criminal Practice adopt at paragraph B12.36 of their work: “Section 1(3)(b) exempts ‘air weapons’ (air rifle, air gun or air pistol) from the certification requirements of s1 except in three cases….” ….

Conclusions regarding Count 2

[32]The allegation is one of possessing a prohibited firearm contrary to s.5(1)(aba), namely a Crossman model 2250B air weapon, which was less that 60 cm in length overall, without the authority of the Secretary of State. I have already set out most of the rival contentions.

[33]The Defence also argued, that on the Prosecution’s interpretation of the law as regards this article, it would result in anyone who removed its stock with a view to replacing it being forever afterwards treated as possessing a s.5(1)(aba) prohibited weapon, because it would have temporarily dropped below 60 cm in overall length. They pointed out that section 7 of the Firearms (Amendment) Act 1988 says that if an article has ever been a s.5(1) weapon it will always be treated as one, notwithstanding anything done to it for the purpose of converting it into a weapon of a different kind. The Prosecution responded that this is an absurd argument and, in any event inapplicable in a case such as this, where someone has evidently not temporarily removed the stock to replace it, but rather has adapted it to be used as a small firearm in the nature of a handheld pistol. I accept the Prosecution’s contentions on this point.

[34]It is a principle of the interpretation of statutes which create penal sanctions that the wording should be construed strictly so as not to extend their reach into areas which it is unclear they were necessarily intended to cover. By way of example, in the context of firearms, the meaning of ‘air’ was strictly interpreted in R v Thorpe (CA)

[1987] 2 All ER 108

as not including CO². It was then a matter for Parliament to enact clear legislation if any other particular compressed gas was to be treated in the same fashion. They did so in s.48 of the 1997 Act – extending the exemption for ‘air weapons’ powered by compressed carbon dioxide. Criminal statutes should as a rule be construed in favour of the freedom of the individual where there is a doubt as to the effective criminalization of particular conduct.

[35]Whilst I accept the Prosecution’s contention that the words “other than an air weapon” in s.5(1)(aba) prevents low powered small firearms from being within the definition of a prohibited weapon, I cannot accept their further contention that is necessarily the only category of small firearm powered by air or CO² which Parliament intended not to prohibit. If that had been Parliament’s clear intention for the exemption from the additional category of prohibited weapon in 1997 I cannot see why it was not drafted thus: “(aba) any firearm which either has a barrel less than 30cm in length or is less than 60cm in length overall, other than that type of air weapon which is not declared by rules made by the Secretary of State under section 53 of the Act to be specially dangerous….”.

[36]In my view the proper interpretation of legislation imposing penal sanctions, where there is an unsolvable logical flaw in the wording, requires me to reach the conclusion most favourable to the individual who is accused of a crime. I have concluded that the Defence argument as to the meaning of ‘air weapon’ in this context, namely that any air rifle, air gun or air pistol was to be excluded from the ambit of s.5(1)(aba), is no less tenable than that propounded by the Prosecution.

[37]Applying those principles I have therefore concluded that, properly directed as to the law, no reasonable jury could come to the view that the defendant was in possession of an article which was a prohibited weapon contrary to section 5(1)(aba) of the Firearms Act 1968, because it is ‘an air weapon’ within the possible meanings of that term as it appears in s.5(1)(aba).”(1) the possessor of a firearm does not have to have a certificate for it if it is an air weapon; and

(2) no matter what other definitions might be used in other contexts, the term ‘air weapon’ for the purposes of the 1968 Act is limited to an air rifle/gun/pistol which is not: (i) a s.5(1) prohibited weapon; and (ii) of a type which is ‘specially dangerous’ under Rules made pursuant to s.53. “(aba) any firearm which either has a barrel less than 30cm in length or is less than 60cm in length overall, other than an air weapon…” IF (the article is a firearm with a barrel length of less than 30cm OR it has an overall length of less than 60cm) (i.e. the s.5(1)(aba) ‘short firearm’ s.5(1) offence AND (it is an air pistol producing no more than 6 ft 1b missile kinetic energy OR is an air weapon other than a pistol producing no more than 12 ft 1b missile kinetic energy) THEN ‘not an air weapon’ in s.5(1)(aba) exempts only those persons who possess short firearms which are not ‘specially dangerous’ IF (the article is a firearm with a barrel length of less than 30 cm OR it has an overall length of less than 60 cm) BUT (it is ‘an air weapon’) (as I have indicated, because of the circularity of the proposition, this begs the question as to what ‘an air weapon’ here means) (i.e. the s.5(1)(aba) ‘short firearm’ s.5(1) exemption) OR (Either it is an air pistol producing no more than 6 ft 1b missile kinetic energy OR is an air weapon other than a pistol producing no more than 12 ft 1b missile kinetic energy) (i.e. it is not an air weapon of a type which is ‘specially dangerous’) THEN the possessor has a defence to an allegation of possessing a firearm in breach of s.5(1)(aba). “an air weapon (that is to say, an air rifle, air gun or air pistol which does not fall within section 5(1) and which is not of a type declared by rules made by the Secretary of State under section 53 of the Act to be specifically dangerous.” “Section 1(3)(b) exempts ‘air weapons’ (air rifle, air gun or air pistol) from the certification requirements of s1 except in three cases….” Conclusions regarding Count 2 “(aba) any firearm which either has a barrel less than 30cm in length or is less than 60cm in length overall, other than that type of air weapon which is not declared by rules made by the Secretary of State under section 53 of the Act to be specially dangerous….”.

[9]Mr Butt, who did not appear below, submitted that the Judge was wrong to conclude that the air pistol (a lethal barrelled weapon less than 60cm in length) was not a prohibited weapon under s5 (1) (aba) of the Act. He did not, Mr Butt argued, apply the definition of air weapon found in S1 (3) (b).

[10]The crucial question is whether he were right to conclude that it is an alleged air pistol as defined which was specially dangerous.

[11]S5 (1) (aba) (pleaded in Count 2 as breached) prohibits possession of the following without the authority of the Secretary of State:

“(aba) any firearm which either has a barrel less than 30 cm in length or is less than 60 cm in length overall, other than an air weapon, a muzzle loading gun or a firearm designed as signalling apparatus”

[12]S57 (4), the interpretation provision, reads:

“air weapon” has the meaning assigned to it by section 1 (3) (b) of this Act.”

S1 (3) (b), whilst it defines air weapon, restricts the legal meaning to:

“(b) an air weapon (that is to say, an air rifle, air gun or pistol [which does not fall within section 5 (1) and which is] not of a type declared by rules made by the Secretary of State under section 53 of this Act to be specially dangerous.”

The words in square brackets were inserted by S39 (2) Anti Social Behaviour Act 2003.

Discussion and conclusion

[13]The judge need not have been anxious about circularity in the s1(3)(b) reference to s5(1). He thought one could only come to a conclusion as to whether it is prohibited under s5(1)(aba) after deciding it is not an air weapon. This is not circular. At paragraph 24 the judge said:

“24. However, the problem with [the Crown’s] analysis is that it takes for its definition of an “air weapon” ……….only the second part of the definition in s 1 (3) (b) (low powered weapons) and not the whole of it – which includes the circular phraseology in s 5 (1) (aba) ”

[14]He understandably misled himself. S1(3)(b) refers back to s5(1) as a whole. A reading of it shows that it prohibits, for example, air pistols, despite their not being specially dangerous.

[15]S5(1)(af), inserted by S39(3) Anti Social Behaviour Act 2003, makes the following subject to s5 (1) prohibition:

“(af) any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self contained gas cartridge system.”

[16]The words in s1(3)(b) which worried the judge, namely: “which does not fall within section 5 (1) and which is” were inserted by the same section of the Anti Social Behaviour Act 2003 which added the prohibition of “self-contained gas cartridge air rifles, air guns or air pistols” under the new s5(1)(af). This example would have been fortifying for the judge had he had, as did we, the advantage of submissions by Mr Butt.

[17]The definition in s1(3)(b) excludes two different kinds of air weapon:(a) those specifically prohibited under s5 (1) and

(b) those specially dangerous.

[18]S1 (3) (b) before amendment would have read:

“(b) an air weapon (that is to say, an air rifle, air gun or pistol not of a type declared by rules made by the Secretary of State under section 53 of this Act to be specially dangerous…”

An air pistol which is specially dangerous is not an air weapon, and if it met the other terms of section 5 (1) (aba) it would be prohibited. The words were inserted to guard against a prohibited firearm from winning exemption from the requirement for certification.

[19]An air pistol is an air weapon only if the s1 (3) (b) exemptions do not bite. Were the jury to conclude that the weapon is an air pistol then it would be specially dangerous. Because the other requirements of s5 (1) (aba) are met, it would be a prohibited weapon.

[20]The judge was also troubled by s1(3)(b), defining air weapon as excluding s5 (1) prohibited air pistols which are specially dangerous.

[21]The use in s1 (3) (b) of “and” does no more than set up a list of the type of air pistols which are not air weapons. That conclusion is fortified by, for example, the section providing that every firearm except certain shotguns and (our emphasis) certain air rifles, air guns or air pistols require a certificate.

[22]In our judgement, interpretation of this legislation, best described as labyrinthine, is nevertheless straightforward when considered in the context of amendments and illumined by the clarity of analysis we enjoyed courtesy of Mr Butt but which was denied the judge.

[23]The judge, to whose elegant judgment we pay tribute, nevertheless fell into an error of law. We quash the decision and remit the matter for trial.