With the rise of popularity of paint-balling and air-soft activities, owners of weapons may be leaving themselves vulnerable to prosecution.
Joe Davidson was involved in a case where the client had been charged with possessing a firearm without a certificate. This was despite the weapon having been purchased legally from a licenced dealer, with the weapon supposedly being of a power that did not require a certificate. It had not been adapted in any way, and their client had a legitimate reason for purchasing the weapon – he was a member of a gun club.
Despite all this, due to the weapon being found to have been “overpowered” by two experts, and due to the charge being one of strict liability, the client found himself with a conviction.
This post gives a brief overview as to the potential dangers of possessing air weapons that are supposed to not require the owner to have a firearms certificate.
Section 1 of the Firearms Act 1968 when read with the Firearms (Dangerous Air Weapons) Rules 1969 makes it an offence for a person to possess air weapons if they can discharge a missile that has kinetic energy more than 6 ft-lbs for pistols or 12 ft-lbs for rifles, and they do not hold a firearms certificate.
Both the Prosecution and Defence expert reports showed that the weapon in question discharged missiles above the 12 ft-lbs prescribed limit. Due to the offence being one of strict liability, this left the Defendant without a defence.
The highest power result the rifle produced, when tested, was 12.53 ft-lbs. This case therefore concerned a lawfully purchased air rifle which was approximately 4% above the legal threshold of 12 ft-lbs.
How had this legally purchased weapon become illegal? The Defence expert set out how this is not an uncommon situation. Manufacturers are thought to make their weapons close to the legal limit to make them more attractive to potential customers. This leaves the customer somewhat dependent on the integrity of the dealer and the manufacturer.
Therefore, it is highly likely that this weapon, correctly purchased but found to be overpowered when tested, is far from an exceptional case.
The case of R v Puttick
Put the above analysis from the Defence expert with the case of R v Donald William Puttick  EWCA Crim J0720-9. P had an unmodified air rifle which, when tested, was found to be over the legal limit. P had used the weapon drunkenly to threaten another person (unlike the client in this case). The Court of Appeal accepted the evidence from the expert in Puttick that air rifles manufactured within lawful limits may increase and decrease in power over time, and of their own accord. Most importantly, this can occur through no fault of the owner. P had his sentence reduced to that of a conditional discharge.
When opening the case, the Prosecutor gave the view that only a custodial sentence would be appropriate. This is not particularly surprising, keeping in mind the potential dangers of air weapons.
It was our view that the client was entitled to full credit. The offence is a technical one, whereby the Defence is entitled to have the weapon in question tested by their own expert. Therefore, the Defendant could not have been expected to plead at the first appearance.
The client had no reason to suspect his rifle was overpowered or any way of testing it. There was no suggestion that he had modified the rifle in any way.
With Puttick in mind, a conditional discharge was put forward as the appropriate sentence. Unlike in Puttick, there had been no threats made with the weapon to any person, which made the client’s case one less serious.
The Magistrates agreed with the Defence submissions and sentenced the Defendant to a conditional discharge of 12 months.
This client is highly unlikely to be the last owner of an air weapon to find themselves in front of the criminal courts due their weapon being overpowered when tested. This wrongfully criminalises otherwise responsible air weapon owners.
It is proposed that the solution for this problem would be to amend the law as follows:
Air weapons must be tested before completion of a purchase to ascertain their power – if they do not comply with the current legal limits of possession without a certificate, the weapon cannot be sold to a customer without a certificate;
If within limits, the weapon can be possessed so long as, when tested at any point after purchase, it does not exceed 1 ft-lbs above the legal limit (excluding the weapon having been adapted).
If indeed this had been the case, the client in this case would not have been prosecuted.
This solution would protect owners of these weapons from inadvertently possessing a weapon that was originally legally owned but has crept up in power since purchase. It would also fulfil the public interest in the need for certificates to be obtained for highly dangerous weapons to be legally possessed.
It is obvious that buying any weapon comes with the heavy burden and responsibility of ensuring it is legally possessed. It is not suggested that these weapons should not be as heavily regulated as they are. The problem that purchasers of air weapons currently have however is that there is no easy way of testing that their weapon is within regulations, and that, as Puttick sets out, the nature of these weapons is that their power can change over time.
Therefore, this is a word of caution for owners of these weapons. The nature of this offence leaves the owner of weapons that are found to be overpowered with no defence. It is important therefore that owners do what they can to ensure their weapons are within legal limits. It is also important for practitioners representing those charged with this offence to keep in mind the case of Puttick to reduce the potential sentence for something that their clients had little control over. Finally, those prosecuting should also be aware of the situation that the client in this case found himself in, and the public interest in prosecuting in similar situations.