Firearms Case and Mistaken Identity Of Weapon

R v A, C and M

Several young men were reported by a member of the public for having what she thought were firearms in their possession. They were in fact shooting “BB” air guns at a home-made target in the car park of their flats. They were arrested and charged with possession of imitation firearms.

BB guns are openly available to buy and like most air weapons are not licensed. However, it is illegal to carry a loaded air weapon in a public place, and they can also be classified as an imitation firearm. In fact, anything can be an imitation firearm if it is intended to look like a gun – even a banana in a pocket could be if it was being used to hold up a bank!

Most BB guns have brightly coloured parts on them to show that they are not real firearms. The slide, barrel or handle is usually blue, red or yellow, which would not be the case with a proper handgun.

It is possible to buy air weapons which do not have these brightly coloured parts to them. These weapons are normally used in activities on private land, such as “Airsoft” clubs, where participants want the guns to look realistic as part of the gaming experience. These are classified as “realistic imitation firearms” because they are modelled on the real thing and look very realistic, even close up. Anyone selling these air weapons must make it clear to the buyer that they are not allowed to be on show in public places and should only be taken out of their covers when on private property.

The BB guns being used by the 3 young men were standard ones with coloured part to them, and had they been firing at a target in their own, enclosed back gardens they would have been completely legal. However, the car park, whilst it was private land, was not enclosed and could be entered by any member of the public without the need for a key or code. As such, it was seen as a “public place.”

We made representations to the prosecution that the proper charge ought to be possession of a loaded air weapon in a public place because the sentencing guidelines for that offence are more favorable than those for possessing an imitation firearm. In the Magistrates Court Sentencing Guidelines, having a loaded air weapon in a public place has a range of medium level community order to 26 weeks in prison. Carrying an imitation firearm has a range of medium level community order to Crown Court (ie more than 26 weeks in prison.) However, the prosecution refused to change the charges, and unfortunately the clients had no grounds on which they could mount a defence.

We put forward strong mitigation to the court pointing out that the clients were not aiming the BB guns at anyone, they were very sensibly only shooting at a home made target well away from anyone else, and if the car park had had a gate on the entrance with a lock, the clients would have been doing nothing illegal at all as it would not have been a place open to entry by members of the public. They had purchased the BB guns entirely legitimately and legally from a local shop, and did not have the benefit of a rear enclosed garden of their own to use the guns in.

Despite the guidelines indicating that the lowest sentence should be a medium level community order, the magistrates imposed only a 16 month condition discharge on each client. This was well below the recommended sentence and significantly less than the clients had been expecting.

Firearms legislation is complicated and has 35 statutes covering possession and use, as well as numerous pieces of secondary legislation. Offences involving firearms are treated very seriously by the courts and as such knowledgeable, expert representation is a distinct advantage if a client is hoping for the best possible outcome.

We can provide such advice and representation both at the police station and in court should matters progress to that stage. We can also provide advice and assistance with certification issues and appeals, where they are separate from any criminal proceedings.