25 February, 2016 – As previously noted, the Law Commission has been looking into fixing or improving firearm law in Great Britain, by addressing some of the anomalies that have developed over the years since the law was originally written in 1920. You can read their full report here.
The Government responds
With remarkable speed, HM Govt. has moved a Bill to implement some of the proposals, the Policing and Crime Bill. Some of the proposals made by the Law Commission were changes in policy or guidance and some were also a bit esoteric, but Part 6 of the Bill does include legislation to give force to the main proposed changes. In summary:
- Provides a clearer definition of a firearm (lethality means the gun has to have a muzzle energy of more than 1J);
- Provides a clearer definition of a component part, by listing the parts that are subject to control;
- Provides a definition of an: “airsoft gun” and exempts them from the definition of a firearm (as they typically have a muzzle energy greater than 1J);
- Gives statutory authority to the Home Office list of approved calibres and ignition systems for antique firearms;
- Grandfathers any antique that becomes prohibited or subject to licensing as a result of the change in the law, so that an owner can obtain a firearm certificate to keep it (even if it is a prohibited firearm);
- Creates a new offence of having an article with the intent to use it to convert an imitation firearm into a working firearm;
- Allows a fee to be charged in relation to a grant of section 5 (prohibited weapon) authority;
- Allows fees to be staggered in relation to approvals for a gun club or museum;
- Requires guidance on firearm law to be issued;
- Requires the police to: “have regard” of Home Office guidance on firearms;
- Requires courts to consider whether the police followed the guidance in appeals relating to the grant, renewal and variation of firearm and shotgun certificates.
My view is that this legislation is fairly neutral but it does have a few problems with it. The definition of an: “airsoft gun” is quite narrow as it specifies a maximum calibre of 6mm. Although antiques that no longer fit the definition of an antique are grandfathered and the legislation makes it straightforward to obtain a firearm or shotgun certificate to keep them, it’s not clear what will happen when a person who has one wants to transfer it. In most cases, the firearm wouldn’t be prohibited so not that big of an issue. Even with handguns, they may well benefit from the exemptions for collectors in section 7 of the Firearms (Amendment) Act 1997. However, if you’ve got an antique Maxim gun, you may have a problem if you ever want to sell it.
Currently the Home Office will grant section 5 authority to transfer a war trophy handgun to an heir (using the exemption in section 6 of the 1997 Act) so one hopes they will be equally generous with antiques.
Another problem are people who are prohibited from possessing a firearm under section 21; this includes people who have received as little as a three-month suspended sentence. Although it is already illegal for these people to possess an antique firearm, they may not realise it until they apply for a certificate. Nastiness could then ensue.
There is also the problem of the Home Office very badly advertising new gun laws, so most likely, people who need to get a certificate won’t be aware of the requirement.
The one part of the legislation that appears to be winding people up is the new offence of having an article with the intent of using it to convert an imitation firearm into a firearm. Personally I don’t see that much of a problem because proving mens rea (criminal intent) beyond a reasonable doubt is quite hard – as the Law Commission themselves point out, if it wasn’t hard to prove, the prisons would be full of people convicted of fraud for having a pen and paper.
The problem I have with that section is that there is no consequential repeal of other laws that previously dealt with this subject, such as the Firearms Act 1982. This new legislation combined with the provisions dealing with imitations in the Violent Crime Reduction Act 2006 make the 1982 Act redundant.
The good news
Negativity aside, this is the first time in a long time that I can remember legislation that contains many positive points for British gun owners.
The clearer definition of: “firearm” and: “component part” are chief among them, because now people engaged in repairing or restoring firearms, including antiques and deactivated firearms, have a much clearer understanding of where they stand in regards to their guns. Want to replace the furniture or the springs? Not a problem, definitely legal without getting authority. Want to replace the trigger or parts of the trigger mechanism? Not a problem, definitely legal, provided the Secretary of State doesn’t use her power to make them controlled parts by statutory instrument (which she might). Want to replace the grip on a deactivated H&K G3 rifle or similar gun that uses a trigger pack? Hmm… still a bit vague, is that a: “frame, body or receiver”? It might be.
Well, it’s still not going to be totally crystal clear but it will be enormously clearer than it was. Largely gone will be the days when you had an old trigger, hammer or other small part and wondered whether it is legal or not.
As much as we might moan about requiring a certificate for an antique, at least it will be clear what is and is not an antique.
Gone (largely) will be arcane discussions as to whether this air pistol or that airsoft gun is a: “firearm”. Air pistols will definitely be firearms (not subject to licencing or prohibition unless the muzzle energy is more than 6 ft/lb); airsoft guns will for the most part definitely not be firearms.
I had hoped that a clear delineation between an imitation and a deactivated firearm would be recommended by the Law Commission, alas it was not to be. For example, is a firearm disguised as another object an imitation firearm when it is deactivated? Probably not, but no-one knows for sure.
One of the main points the Law Commission considered was whether section 8 of the Firearms (Amendment) Act 1988 (the section dealing with deactivated firearms) should be a legally required standard rather than simply an evidential provision. The Law Commission basically said yes, it should be, but if a person can show that a deactivated firearm in their possession deactivated in another way is not a firearm, then it’s legal for them to own it.
As far as I can see, the net effect of that would be that dealers would be compelled to follow the section 8 standard, but people who have deactivated firearms that were deactivated to a pre-89 or foreign standard would still be legally in possession of them, most of the time anyway.
The Home Office seems to have taken the view that that great of an exemption drives a coach and horses through making section 8 a legal requirement and so it does not appear in the Bill – or perhaps they are simply waiting for the whole mess foisted on them by the European Union to be sorted out before doing anything further.
That is another topic, but the Home Office is currently working on a new deactivation standard based on the new required EU standard, which was developed in part by CIP. It’s somewhat similar to the existing UK standard, the main difference being that detachable magazines must be pinned or welded in. And with much sillier welding standards.
The main issue with the new EU regulation is that it requires all deactivated firearms “placed on the market” to be deactivated to the new EU standard. Does that mean that you can no longer sell your pre-2016 deactivated firearm to someone else without updating it? Well, sort of, the statement on the deactivation certificate would probably be rendered meaningless (“it will be presumed unless the contrary is shown”), but the reality is that a pre-2016 deactivated firearm is still clearly not a firearm and that can be easily proven. So it’s more of a problem for dealers than individuals, because dealers will have to ensure all of their stock is compliant with the new standard. Will people still be interested in buying a deactivated pistol for example if the magazine has to be welded or pinned in?
I guess we’ll find out. At least it resolves the grey area in Northern Ireland, as magazines are considered to be component parts there, so it was unclear if removing the magazine from a deactivated firearm was legal.
…still no sign of a consolidation Firearms Act.
“It is our experience that firearms law is an area of law that consistently, possibly more than any other area of law, causes difficulties for charging lawyers. We concur entirely with the observation… that the state of the current legislative provisions ‘makes it exceptionally difficult even for a skilled lawyer to state with certainty what the law is’.” – Submission by the Crown Prosecution Service to the Law Commission, arguing for consolidation of the Firearms Acts.