R v John Daniels

On 14 January 2022 a search warrant was executed at the Defendant’s address. In the course of the search, three “3D” printers were located and various plastic components produced using the “3D” printers. These included a “lower receiver” manufactured to a design produced for the manufacture of a so-called “FGC9” model which, when manufactured and assembled appropriately, is a semi-automatic lethal firearm.

The charges preferred against the Defendant concern only the possession of the “lower receiver”. The charges comprise:

The Defendant accepts that he was in possession of the lower receiver and that he did not have a firearms certificate for it but denies that he committed either offence:

The trial of this matter has been fixed for 5 days, and was initially listed for 28 May 2024. Both parties served expert evidence intended to support their case at trial:

On 28 May 2024, the case was adjourned, and referred to one of the Presiding Judges with a view to determining whether the case should be retained for trial by a High Court Judge. Mr Justice Murray gave a direction to that effect on 5 July 2024. In the meantime, directions were given as follows:

As so formulated, five points of law were initially identified:

By 14 March 2025, when the prosecution served a second skeleton, it was stated that there were now two issues:

The skeleton suggested that the latter question involved an issue for the jury depending on whether “the jury think it is a reasonable possibility that the lower receiver would have been used [by the Defendant] to construct an FGC-9 with a barrel length of more than 16cm”.

The matter came before me on 30 July 2025 for legal argument. The expert witnesses did not attend. In the course of that argument, it became apparent that further research was required in relation to the legislative background to s.57(1D) of the Firearms Act 1968. In addition, there were certain technical issues of potential relevance to the interpretation of that issue on which the parties were unable to assist me.

Further written submissions followed on 31 July (the Defence), 6 August (Prosecution) and 13 August (Defence) in the course of which a significant body of further material was filed. It was apparent from those materials that the purpose behind s.57(1D) may not have been accurately understood at the time of oral submissions, and that the arguments engaged certain factual issues which went beyond the scope of the experts’ joint memorandum.

I informed the parties that I had concluded that it was not appropriate to issue any legal ruling, without a more secure understanding on the court’s part of the agreed factual background (which had not been reduced into an Agreed Statement of Facts) and certain technical matters. In addition, I was concerned that what had been intended to be a hearing in open court, on matters of obvious wider interest, had in the event largely come to be argued on paper. I provided the parties with a draft Agreed Statement of Facts recording my understanding of what was agreed, and those areas where I required further assistance, and directed the parties to provide a final version, with the matter finally to be determined at or at the start of the trial.

In the event, a week before trial, the court received a further joint report from Mr Platt and Mr Harriman commenting on my draft, and a report from Ms Woodcock addressing a number of questions arising out of the draft. There were further discussions at court, the effect of which is that the following matters were common ground:

Section 57 of the Firearms Act 1968 provides:

“(1)

In this Act, the expression ‘firearm’ means—

(a)

a lethal barrelled weapon (see subsection (1B));

(b)

a prohibited weapon;

(c)

a relevant component part in relation to a lethal barrelled weapon or a prohibited weapon (see subsection (1D)) …

(1B) In subsection (1)(a), “lethal barrelled weapon” means a barrelled weapon of any description from which a shot, bullet or other missile, with kinetic energy of more than one joule at the muzzle of the weapon, can be discharged.

…

(1D) For the purposes of subsection (1)(c), each of the following items is a relevant component part in relation to a lethal barrelled weapon or a prohibited weapon—

(a)

a barrel, chamber or cylinder,

(b)

a frame, body or receiver,

(c)

a breech block, bolt or other mechanism for containing the pressure of discharge at the rear of a chamber,

but only where the item is capable of being used as a part of a lethal barrelled weapon or a prohibited weapon.”

In interpreting that section, the court is entitled to take account of the state of law as it existed prior to the legislation in issue (Bennion, Bailey and Norbury on Statutory Interpretation [42-5]), and consultation papers and reports by government or parliamentary bodies or the Law Commission where legislation is introduced to give effect to those reports or where they identify the mischief to which the legislation in issue was aimed ([24-9]). In addition, the Explanatory Notes for the legislation in question are also an important aid (Wilson v First County Trust (No 2) [2004] 1 AC 816, [64]).

As originally enacted, s.57(1) of Firearms Act 1968 provided:

“(1)

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—

(a)

any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and

(b)

any component part of such a lethal or prohibited weapon; and

(c)

any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon;

and so much of section 1 of this Act as excludes any description of firearm from the category of firearms to which that section applies shall be construed as also excluding component parts of, and accessories to, firearms of that description.”

As enacted, therefore, s.57(1) did not seek on its face to distinguish between different component parts of firearms, nor engage with the issue as to the level of assembly at which a “component part” should be identified.

The Firearms Consultative Committee (“FCC”), the independent body established under the auspices of s.22 of the Firearms (Amendment) Act 1988 to review the working of the Firearms Acts, commented on this feature of the 1968 Act in their Ninth Annual Report for the year 1997/1998. At [4.2], the FCC noted that:

“The term ‘component part’ of a firearm is not defined in statute. In practice, there is a clear consensus that the frame and other major components of a gun, such as the barrel, slide or revolver cylinder, are clearly ‘components’, whereas a common screw, used in a variety of machines, is not a ‘component’”.

The report referred to concerns expressed by a defence manufacturer as to the scope of the current legislation, leading to the establishment of a sub-committee to address the issue so as to “draw a clear divide between those components which should be subject to strict controls, and those to which a de minimis approach … might be applied”, and they recommended a statutory reform to that end. The report of the sub-committee was printed as Annex C to the report:

The FCC returned to this issue in its Tenth Annual Report for the year 1998-1999. It noted at [13.2] that “the trade” had expressed concern about measures proposed in the Ninth Report, and it had decided to look at the issue again. The sub-group formed to do so endorsed the following definition:

“The term ‘component part’ shall apply to (i) any barrel, chamber of cylinder; (ii) any frame, action, body or receiver; (iii) any breech, block, bolt, or other mechanism for containing the charge at the rear of the chamber; (iv) any other part of the firearm upon which the pressure caused by firing the weapon impinges directly”

([13.10]). The FCC observed at [13.11] that “this matched the long-standing view that component parts should be ‘pressure bearing parts” and accorded with those parts routinely recorded on firearms certificates and in dealers’ registers.

The experts agree that the manufacture of weapons with separate upper and lower receivers has been a feature of certain weapon designs since the late 1950s. It is not clear when the legal issues which weapons designed with separate upper and lower receivers were capable of raising first achieved prominence in the UK. However, the fact that some weapon-types had separate upper and lower receivers was known to the Law Commission when it was asked to consider reform to firearms legislation in 2015.

In 2015, the Law Commission issued “Firearms Law: A Scoping Consultation Paper” (Consultation Paper No 224) (“the Consultation Paper”) which addressed the issue of “component parts” in chapter 3. At [3.3], the Consultation Paper noted that the absence of a definition had led to “the same item [being] classified in different ways by different juries sitting in different courts.” The Consultation Paper referred to judicial decisions holding that the issue of whether something was a component part was one of fact for the jury.

By way of a potential solution, the Consultation Paper referred to the Ninth Report of the FCC, noting “the general principles laid down by the FCC are the product of careful consideration and debate by a range of experts and for that reason the Law Commission has relied upon them to inform our own approach to this issue” ([3.28]). Reference was also made to the definition in Article 3(b) of EU Council Decision 2014/164/EU:

“Parts and components’ shall mean any element or replacement element specifically designed for a firearm and essential to its operation, including a barrel, frame or receiver, slide or cylinder, bolt or breech block, and any device designed or adapted to diminish the sound caused by firing a firearm.”

At [3.42], the Consultation Paper referred to a “second option” of limiting the legislation to “pressure-bearing parts,” as suggested in the FCC’s Tenth Report. It noted that at [3.44] that “this approach would have the benefit of providing a relative degree of certainty, although there would exist the potential for disagreement over whether the part in question is in fact pressure bearing” and that “expert evidence would in many cases be necessary to assist with this inquiry.” At [3.46], the Consultation Paper referred to two difficulties in defining component parts solely by reference to the question of whether they are pressure-bearing: the risk of the definition being under-inclusive; and “difficulty at the margins in determining whether the pressure of firing does in fact impact directly upon the item in question” (and whether there was a required minimum extent).

At [3.47], the Law Commission considered a third alternative – “a part without which the thing could not operate as a lethal-barrelled weapon” – referring to potential disagreements about whether the classification was met, and the risk of over-inclusion.

At [3.49], the Law Commission came down in favour of the suggestion in the FCC’s Ninth Report, and against a catch-all by reference to whether the part was pressure- bearing. The Consultation Paper also recommended a requirement that the component part be capable of fulfilling its function as part of a working firearm. This was to resolve an apparent conflict between R v Bewley [2012] EWCA Crim 1457 (holding that a component part of something which was not itself a lethal-barrelled weapon could not itself be a “component part” for s.57(1) purposes) and R v Ashton [2007] EWCA Crim234 (holding that a component part of a de-activated weapon could, in its disassembled state, constitute a “component part”), noting that the effect of its recommendation would be to reverse Bewley.

At [3.54], the Law Commission set out “Provisional proposal 2”:

“To maximise clarity and certainty, the FCC’s modified list of component parts should be enshrined in law, namely:

(1)

the barrel, chamber, cylinder;

(2)

the frame, body or receivers upper and lower where present in the complete firearm;

(3)

the breech, block, bolt or other mechanism for containing the charge at the rear of the chamber.”

It is to be noted that the reference to “receivers upper and lower” was the Law Commission’s own interpolation of what was implicit in the FCC Ninth Report, rather than language appearing in the Ninth Report. The definition of “receiver” in the glossary was “the component of the firearm housing parts of the operating mechanism. Also known as the ‘frame’ in handguns, especially revolvers.”

The Law Commission’s report, “Firearms Law – Reforms to Address Pressing Problems” (Law Com No 363) (“the Report”) was published on 15 December 2015. Component parts were addressed in chapter 3. At [3.9], the Report noted that the Law Commission had recommended making the FCC definition statutory and that:

“As a consequence of this, the term ‘component part’ would be defined as:

(1)

The barrel, chamber or cylinder.

(2)

Frame, body or receivers upper and lower.

(3)

Breech, block, bolt or other mechanism for containing the charge at the rear of the chambers”.

At [3.10] the Report stated that the recommendation would “ensure that those parts that have the potential for criminal misuse are subject to control whilst not requiring every washer and screw to be included as a separate entry on a firearm certificate.”

At [3.11] they noted that they did not recommend adopting the phrase “any other part of the firearm upon which the pressure caused by firing the weapon impinges directly” because “it would undermine our goal of maximising clarity.”

The proposed reform had received support in the consultation process, including from the Countryside Alliance, whose submission, noted at [3.14], expressed the understanding (from which the Law Commission did not dissent) that the definition proposed extended to “receivers upper and lower.” At [3.20] the definition proposed was:

“(1)

The barrel, chamber, cylinder.

(2)

Frame, body or receivers.

(3)

Breech, block, bolt or other mechanism for containing the charge at the rear of the chamber.”

While this did not include the words “upper or lower”, the Report clearly communicates that the recommendation was to implement those aspects of the FCC definition in the Ninth Report which extended to “receivers, upper and lower”. In its glossary, the Law Commission once again defined “receiver” as “the component of the firearm housing parts of the operating mechanism. Also known as the ‘frame’ in handguns, especially, revolvers.”

It will be apparent that in its enacted form, the definite article in the first limb was replaced with the indefinite article, which was also introduced into the second and third limbs, and that the reference in the second to “receivers” was replaced with “receiver”. The effect of s.6 of the Interpretation Act 1978 would make the argument that the use of the singular as opposed to the plural was of significance a very challenging one. There was no suggestion that the conditions for reference to Hansard as an aid to interpretation were applicable. In case there was anything which might assist the Defendant, I have reviewed the debates, which contains nothing to suggest that Parliament was intending to do other than implement the Law Commission’s recommendations in the definition of “component parts”.

Mr Glenser KC referred to the Explanatory Notes which accompanied the Police and Crime Act 2017. It is also helpful to refer to those which were placed before Parliament accompanying the Bill, of which there are three sets, in essentially the same form.

The Explanatory Notes accompanying the Bill as it was brought to the House of Commons on 10 February 2016 (Bill 134) stated at [121] of the-then clause 77 of Bill (which, in relation to the definition of “component parts”, was throughout in the form essentially enacted) that it:

“gives effect to the Law Commission recommendations (at paragraphs 3.20, 3.28 and 3.44 of its report):

•

‘that the term “component part” in the Firearms Act 1968 be defined as

(1)

The barrel, chamber or cylinder;

(2)

Frame, body or receivers;

(3)

Breech, block, bolt or other mechanism for containing the charge at the rear

of the chamber.’

•

‘that the Secretary of State be given the power to amend the statutory list of component parts by way of statutory instrument, subject to the affirmative resolution procedure’;

•

‘that the legislation be enacted to clarify that a component part shall remain classified as such so long as it is capable of fulfilling its function as part of

a lethal-barrelled weapon”.

The Commentary on the Provisions of the Bill, addressing what was then clause 77, stated of the definitions at [779]:

“These terms are not defined further but will take their commonly understood meanings, namely:

• Barrel – that part of a firearm through which a projectile or shot charge travels under the impetus of powder gasses, compressed air, or other like means. A barrel may be rifled or smooth;

• Chamber – the rear part of the barrel bore that has been formed to accept a specific cartridge or shotshell. In a revolver the holes in the cylinder represent

multiple chambers;

• Frame – in revolvers, pistols, and break-open guns, the basic unit of a firearm which houses the firing and breech mechanism and to which the barrel and grips are attached;

• Body – another word for receiver or frame;

• Receiver – the basic unit of a firearm which houses the firing and breech mechanism and to which the barrel and stock are assembled;

• Breech block – the locking and cartridge head support mechanism of a firearm that does not operate in line with the axis of the bore;

• Bolt – on a rifle, this is a component which slides into an extension to the barrel

at the breech end and rotates to lock.”

It will be apparent that the statement as to what was said to be the commonly understood meaning of the word “receiver” would not apply to the lower receiver found at the Defendant’s property, which does not contain a breech mechanism and to which the barrel and stock are not assembled.

The Explanatory Notes accompanying the draft of the Bill as it was brought to the House of Commons on 19 May 2016 (Bill 3) addressed what was then clause 104 in the same way (at [136] and [820]); as did those for the draft brought to the House of Lords on 14 June 2016 (HL Bill 55) addressing the-then clause 111 (see [144] and [881]). The Explanatory Notes accompanying the Act referred to the Law Commission Consultation Paper (at [137]) and the Report ([139]), stating that ss.125 to 128 of the 2017 Act were intended to remedy the deficiencies the Law Commission had identified ([138]-[139]). At [147] and [931], in the Commentary on the Provisions section, they contain the same statement as the three sets of Explanatory Notes which had accompanied the Bills.

Having regard to all of these matters, I am satisfied that the word “receiver” in s.57(1D) of the Firearms Act 1968 extends to both upper and lower receivers when manufactured as free-standing parts, and not simply, as Mr Glenser KC submitted, to a single part which performs the functions of both an upper and lower receiver. That conclusion is supported by the following factors:

It follows that I am satisfied that the lower receiver found at the Defendant’s address is a receiver for the purpose of s.57(1D) of the Firearms Act 1968. I am also satisfied the issue is a question of law, not a question of fact for the jury. It concerns the proper interpretation of the word “receiver” in s.57(1D) on its language and by reference to its legislative history. It is relevant in this respect that the purpose of s.57(1D) was to reduce the scope for inconsistent jury verdicts under the preceding version of s.57, in which the issue of whether a particular item was a “component part” was a question of fact for the jury.

For the same reason, I am satisfied that Mr Glenser KC’s alternative argument that the lower receiver found at the Defendant’s address was not a “receiver” for s.57(1D)(b) purposes because “half of it was missing” is wrong. That pre-supposes that only a single item capable of performing the functions of both an upper and lower receiver is caught by this part of s.57(1D). However, I have rejected that argument. On the basis of my conclusion that s.57(1D) applies to both lower receivers and upper receivers, what was found at the Defendant’s address was not “half a receiver” for s.57(1D)(b) purposes, but a complete and functioning lower receiver.

As might be expected, the significance of the fact that some weapon-types have separate upper and lower receivers has also been an issue of debate in the U.S. The United States Gun Control Act 1968 (18 USC § 921(a)(3)) defines “firearm” to include “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; and (b) the frame or receiver of any such weapon”. In weapons with upper and lower receivers, it was generally the lower receiver which was serialized and treated by the Bureau of Alcohol, Tobacco and Firearms as the controlled firearm (e.g. 27 CFR § 478.11 (2021)). However the application of 18 USC § 921(a)(3)) to separate upper and lower receivers has been a matter of legal controversy, with three District Courts having issued rulings to the effect that an AR-15 lower receiver on its own did not constitute a frame or receiver (United States v Roh SACR 14-167-JV, Minute of Order p.8 (C.D. Cal), July 27, 2020; United States v Rowold 429 F. Supp. 3d 469, 475-77 (N.D. Ohio 2019) and United States v Jimenez 191 F. Supp. 3d. 1038, 1041 (N.D. Cal, 2016)).

In 2022, the Bureau of Alcohol, Tobacco and Firearms issued a new regulation (87 Fed. Reg. 24652). This sought to address the status of weapons with upper and lower receivers (27 CFR §478.12(a)(1), (a)(2)), as well as addressing weapons parts kits “designed to” or which “may readily be converted to expel a projectile” (27 CFR §478.11), and “partially complete, disassembled, or nonfunctional” frames or receivers (§478.12(c)). A challenge that aspects of that regulation were ex facie inconsistent with the Gun Control Act 1968 was rejected by a 7-2 majority of the Supreme Court in 23-852 Bondi v VanDerStok, 2 March 2025. Footnote 1 of Justice Gorsuch’s opinion on behalf of the

Mr Glenser KC also argues that the item found at the Defendant’s address did not constitute a lower receiver within s.57(1D)(b) because it was not “capable of being used as a part of a lethal barrelled weapon or a prohibited weapon” due to the broken hammer.

There are a number of decisions which have considered the effect of different types of deficiencies in devices charged as firearms under the Firearms Act 1968 or predecessor legislation. They must be considered in the context of the wording of the specific legislative provision in issue. There are two principal types of wording:

The first in point in time is Cafferata v Wilson [1936] 3 All ER 149, which involved the sale of a dummy revolver, fitted with a partially bored barrel. By fully drilling the barrel, the device could be made capable of discharging a missile by 5 minutes drilling with an electric drill, or 30 minutes hand-drilling. The seller was charged with unlawful sale of a firearm contrary to s.2(1) of the Firearms Act 1920 and convicted before the magistrates. Section 12(1) of that Act defined a firearm as “any lethal firearm or other weapon of any description from which any shot, bullet, or other missile can be discharged, or any part thereof.” (in effect a form of “capability” wording). Upholding the conviction, the Divisional Court described the conclusion that the dummy revolver as a whole was part of a firearm as “quite a tenable proposition”, alternatively finding that “[t]he dummy contains everything else necessary for making a revolver except the barrel, and therefore all the other parts of it except those which required to be bored are ‘parts thereof’ within the meaning of the section.” Neither analysis appeared to treat the dummy revolver as a firearm in itself.

Cafferata was followed in R v Freeman (1970) 54 Cr App R 251, in which the defendant had been found in possession of a starting pistol, which could be adapted by drilling to fire bullets. The Court of Appeal upheld a conviction for possession of a firearm contrary to s.1(1)(a) of the Firearms Act 1968, applying the definition in s.57(1) that a 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 jury had been directed that “an article like this, that can be adapted to fire bullets by drilling the barrel and making some other alterations, is a firearm under the meaning of the Act.” That direction is not wholly clear as to whether the article was a firearm on the basis that it could be adapted to fire bullets, or a component part of such a firearm. However, it was approved. The Court observed:

“It would indeed be unfortunate if an object, which by the use of an electrical drill of a type that can be bought at almost any general store in any High Street can be so easily adapted into a lethal weapon, should not come within section 1(1) of the Act.”

Similar issues came before the High Court of Justiciary in Scotland in Kelly v MacKinnon (1982) SCCR 205, [1983] SLT 9, which reached a different interpretation of the Act. The defendant was in possession of a replica revolver which fired blank cartridges and could easily be converted to fire live ammunition, and a starting pistol which had been altered inter alia by removal of the trigger mechanism and cylinder advance and by blocking the barrel. It too was capable of easy conversion into a weapon capable of being fired. It was held that neither weapon constituted a firearm within the 1968 Act. The Lord Justice-General (Lord Emslie) held that the definition of a firearm was “a lethal barrelled weapon (of any description) from which any shot, bullet or other missile can be discharged” and “a component of a lethal barrelled weapon from which any shot, bullet, or other missile can be discharged” (emphasis added). He held that:

“A component part of something which is not a lethal weapon cannot, by itself, be a firearm and it is nothing to the point that parts of that which is not a lethal weapon could be stripped therefrom and used in the construction of something which, when completed, would become a lethal weapon. It is nothing to the point either that a part which is a component of an article which, not being a lethal weapon, might in various ways be converted or adapted in order to become such a lethal weapon..”

The suggestion in Cafferata that the dummy revolver as a whole was part of a firearm was described as “manifestly absurd”, and the reasoning in that case strongly criticised in both formulations. Similar criticism was made of R v Freeman, the Lord Justice stating:

“If an article is not a lethal barrelled weapon from which any shot, bullet or other missile can be discharged or a component part of such a weapon it is not a ‘firearm’ for the purposes of the Act. Whether it would be easy or difficult to convert such an article into such a lethal weapon is quite irrelevant and where one is dealing with, let us say, an object which is not a component part of such a lethal weapon but which could be used in the construction of such a lethal weapon, it cannot be seriously suggested that it is, for that reason, a ‘firearm; in its own right, or might be held to be so treating the matter as one of fact and degree.”

There then followed a series of cases concerned with s.5(1)(a) of the 1968 Act which prohibited possession of a weapon “designed or adapted that if pressure is applied to the trigger missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty” (“continuous fire”):

In Brown v Director of Public Prosecutions [1992] Lexis Citation 3423, the Divisional Court had to consider s.5(1)(b) of the Firearms Act 1968, which then provided:

“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 –

…

(b)

any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing.”

The defendant was charged with possession of a stun gun, and advanced the defence that the device was not in working order. The fault had not been identified, but there was no evidence that the device had ever worked.

The magistrate, the relevant fact-finding body, found that “although the stun gun did not operate anyone with a knowledge of electrical devices might be able to identify the defective component or components and replace them.” On the basis of that finding, the magistrate concluded that the stun gun was a prohibited weapon. There were no findings before the Divisional Court as to how difficult it would have been to effect the necessary repair. On the facts as found, the Divisional Court held that the magistrate had been correct in his legal conclusion. The Court referred to the decision in Clarke, holding that the issue was the purpose of which the stun gun had been “designed or adapted”, rather than whether it was its working state. This section involved the same statutory wording

In R v Bewley [2012] EWCA Crim 1457, the defendant was found in possession of a modified starting pistol, designed to fire blanks, but modified by drilling out part of the barrel off centre. In addition, the top part of the hammer had been broken off. By mounting the weapon in a vice, using a mallet and punch to hammer a pellet through the muzzle, loading a blank cartridge, and using a mallet and punch to strike the firing pin, the weapon had been made to discharge a missile with sufficient force. The defendant was charged with possession of a prohibited firearm contrary to section 5(1)(aba) of the Firearms Act 1968, namely a firearm “less than 60cm long.” To constitute a “firearm”, the pistol had to be “a lethal barrelled weapon of any description from which any shot, bullet, or other missile can be discharged”. The issue for the Court of Appeal was whether

After reviewing the prior authorities, at [15], Moses LJ noted the different wording in issue in the case at hand from that addressed in prior cases:

“The question in the instant appeal is not whether the gun was designed or adapted to discharge a shot, bullet or other missile, as in R v Law , R v Clarke , R v Jobling and R v Pannell but whether it had the capacity to do so. Those cases are of significance in that they teach that the mere fact that only an expert could discharge a missile from the starting pistol does not mean that it did not have the capacity to discharge a missile and thus did not remove it from the scope of the definition in section 57(1)”.

I would interpolate that the issue of the starting pistol’s “capacity” arose from the requirement that “any shot, bullet, or other missile can be discharged” from the device.

At [16], he continued:

“Although section 57(1) uses the present tense, ‘can be discharged’, a weapon may fall within the definition in section 57(1) despite some temporary fault at the time it is in the possession of the accused. Even Taylor J in R v Jobling acknowledged that a mere temporary fault would not preclude the weapon from the prohibition. So did Eveleigh LJ in R v Pannell 76 Cr App R 53 …The very notion of the capacity of a weapon must refer not only to its condition at the time of possession but to its construction and its potential as a means of discharging a missile. But once it is recognised that a gun might fall within the definition of firearm, even if its condition at the time renders it incapable of firing, the question arises as to the extent to which it is permissible to look to possible alterations to the gun from the condition in which it is found in the possession of the accused. If a minor repair is all that is needed, the gun is a firearm. But what if it needs a major conversion, adaptation or repair before it can discharge a missile?”

Moses LJ referred to previous decisions, before the 1982 amendment including Cafferata v Wilson [1936] 3 All ER 149 and R v Freeman [1970] 1 WLR 788), and to the criticism of the reasoning of those decisions in Kelly v MacKinnon (1982) SCCR 205 which he found compelling. While the court would have been bound to follow the English authorities had the statutory scheme remained the same, the court concluded that the amendments effected by the Firearms Act 1982 justified a different conclusion. These had introduced provisions addressing imitation firearms which were “so constructed or adapted as to be readily convertible into a firearm to which section 1 applies”. There was a statutory test in s.1(6) of what “readily convertible” meant, and a statutory defence if the defendant could show that he did not know and had no reason to suspect that an imitation firearm could be readily convertible into a firearm to which section 1 applied. At [28] he stated:

“Accordingly, the principle identified in R v Freeman [1970] 1 WLR 788 is, under the current statutory scheme, no longer of any application. If the item can be easily adapted into a lethal weapon, to adopt Sachs LJ's words (at p 792), with the use of equipment described in section 1(6) of the 1982 Act, then it will, subject to the statutory defence, fall within the 1968 Act. But no conclusion can be reached as to whether an imitation firearm is readily convertible without proper consideration of section 1(6) and, if it is raised, the defence in section 1(5) . Those subsections raise questions of fact which must be resolved. Whether an item falls within section 57(1) should no longer be answered by reference to R v Freeman or to Cafferata v Wilson [1936] 3 All ER 149. Courts should look to the 1982 Act read with the 1968 Act. It would be absurd to allow the prosecution to sidestep the safeguards within the 1982 Act merely by construing firearm as meaning an item which could “easily” be converted into a lethal-barrelled weapon, capable of discharging a missile, in the application of the principle in R v Freeman.”

At [34], the Court of Appeal considered whether the starting pistol could be considered a component part of “such a lethal or prohibited weapon”, even if it was not a lethal or prohibited weapon in itself. This was said to be “an impossible construction”, on the basis that “the definition of firearm cannot include a component part of a lethal-barrelled weapon of any description from which any shot, bullet or other missile can not be discharge … If the starting pistol does not fall within the definition of firearm within section 57(1), no part of it could do so.” Significantly, the court continued:

“We can underline this conclusion by reference to the missing hammer. If the only reason that the starting pistol could not discharge a missile was the absence of the hammer, then it was plainly a firearm. Absent the hammer, a suitably sized ‘ball peen’ hammer could be used to strike the firing pin. If, contrary to our conclusion, a missile could be discharged from the starting pistol if the hammer had been present, then its absence would merely lead to the conclusion that the remaining parts of the pistol were component parts of a lethal or prohibited weapon as defined.”

Ashton was not cited in Bewley, and, as the Law Commission noted in [3.17] of the Consultation Paper, the decisions are not consistent, to the extent that the latter focusses on the functionality of the weapon of which the component part formed part, rather than of the component part itself. The Law Commission recommended reversing this aspect of Bewley, which was duly done in s.57(1D) of the 1968 Act.

In R v Hurley [2013] EWCA Crim 1008, the defendant was found in possession of a stun gun, the issue being whether it was “designed or adapted for the discharge of any noxious liquid, gas or other thing” within the meaning of s.5(1)(b) of the 1968 Act (i.e. the same issue as arose in Brown), the particular issue in that case being the absence of evidence as to the amount of current which the stun gun had been designed or adapted to discharge. The Court of Appeal held that it was sufficient that this was a device designed to discharge electricity. At [13], the Court endorsed the conclusion in Brown that “such a device, even if not working properly because of some unknown fault, is within the prohibited category.”

In R v Heddell [2016] EWCA Crim 443, the defendant was found in possession of a replica sub-machine gun, originally manufactured to fire caps. The replica had subsequently been converted in such a way that the removal of a steel bolt, which would take 20-30 seconds, would enable it to fire live rounds. The defence case was that, as seized, the replica was incapable of firing a live round (i.e. raising the issue of whether the replica was “a lethal barrelled weapon from which any shot, bullet or other missile can be discharged” in s.57(1) rather than the “designed or adapted” issue raised in the continuous fire cases).

The Court of Appeal reviewed Cafferata, Freeman and Bewley dealing with starting pistols which had had features intended to prevent the discharge of missiles which could readily be removed. At [22], the Court held that Bewley had modified the earlier authorities such that a device of this kind would only be a firearm if it “could be converted into a weapon from which a missile could be discharged without any special skill or the necessity for specialist equipment.” At [24], the Court of Appeal stated:

“We do not … read Bewley as affecting the position where an item which already satisfies the definition of a firearm within section 57(1) requires some minor repair or attention before it can be discharged. It seems to us that paragraph 16 of Bewley acknowledges that this is the case.”

The Court distinguished in this regard between a firearm “in the sense that the weapon had already been converted so as to be capable of being fired in its present condition” (albeit some minor repair or attention was required before it can be discharged”) and “something which had started off life as an imitation firearm and which, notwithstanding the work which had been carried out, had not been converted into a firearm and which required further work to turn it into one”. The Court said that the judge was right to leave this issue to the jury.

The issue in this case is whether the receiver which the Defendant was in possession of was “capable of being used as a part of a lethal barrelled weapon or a prohibited weapon”.

I am satisfied that on the correct interpretation of s.57(1D), that involves consideration of the use to which the relevant component part can be put (rather than of the item of which it was, or was intended to be, a component part). That reflects the wording in s.57(1D), which was adopted to reverse this aspect of the decision in Bewley and to prefer the conclusion reached in Ashton.

However, the language in s.57(1D), with its reference to the “capability” of the component part, rather than the purpose for which the component part was designed or intended, requires the issue to be approached on the same basis as that adopted when determining whether the “can be discharged” requirement of the definition of a “firearm” is satisfied.

That involves applying the analysis in R v Heddell [2016] EWCA Crim 443, on which basis if the jury is sure:

This part of Mr Glenser KC’s argument involved the suggestion that the lower receiver would not constitute a “component part” of a lethal barrelled or prohibited weapon if the Defendant’s intention in manufacturing it was not to use it for this purpose, but only as a part in the printed version of the “FGC-9” he had produced which was not, and was not intended to be, a functioning firearm or where there was no intention to use it with a barrel of prohibited length. Mr Glenser KC argued that the Defendant’s intention was capable of rendering the lower receiver a “dual use” item.

This is a complex issue and I have decided that it is better tackled once the evidence has been heard, rather than in the abstract.