FIREARM OFFENCES NO 5
259.11a
Volume 2
Supplying firearms to criminals
Judicial guidance
Att-Gen’s Ref Nos 128-141 of 2015 and 8-10 of 2016 2016 EWCA Crim 54, 2 Cr App R (S) 12 (at p 72)
LCJ The court considered sentences for those that supply firearms to criminals. para 3 Offences involving
the possession or use of firearms have therefore attracted increasingly severe sentences. para 7 If a life
sentence is not passed, as was made clear in Att-Gen’s Ref No 43 of 2009 2009 EWCA Crim 1925, 2010 1
Cr App R (S) 100 (p 628), courts must impose long determinate sentences commensurate with the role
played in any activity in relation to the supply of guns. Sentences must reflect the hierarchy of the supply
enterprise, the role played in individual transactions and any previous convictions in relation to guns.
A court must assess the entire factual circumstances, including the number and type of weapons in which
the members of the criminal enterprise dealt, the provision of lethal ammunition, the period of time over
which the criminal enterprise operated, the level of sophistication employed, the geographic range over
which the criminal enterprise operated and any specific factors connecting the criminal enterprise to a
locality where gun crime was particularly serious. For the leader of the enterprise which was in the business
of supplying guns and lethal ammunition, a very long determinate sentence was required. In the present
case, we consider that the appropriate sentence for the leader was 25 years, prior to discount for his plea.
However, courts should not take this as a maximum. For example, a materially greater sentence would be
appropriate if there was any previous conviction for offences involving guns. Nor can it make any difference
that the criminal enterprise here was engaged in converting or acquiring guns rather than importing them;
the same level of sentence is appropriate, as the essence of the criminality is the organisation of a criminal
enterprise to supply guns and lethal ammunition to customers, irrespective of the source of the guns and
ammunition. Those engaged in the criminal enterprise under the leader should have received sentences
reflecting the sentence for the leader (before any discount for plea), depending on the role they played.
For those seeking to buy a gun and lethal ammunition from this criminal enterprise, we have proceeded on
the basis that the purchaser must have required the gun and lethal ammunition to ‘kill and maim, terrorise
or intimidate’. Two of the customers were engaged in the supply of class A drugs. The appropriate sentences
for the purchasers in this case was in the region of 15 years, [with] significantly higher sentences [where
there are] previous gun convictions.
The role played by those who assisted in these transactions varied, but with the minimum sentence of 5
years for those in possession of a gun, the starting point is not less than 8 years for those who assisted in
putting guns into circulation. Their criminality lay in assisting in putting guns and lethal ammunition into
the hands of a purchaser. Sentences materially greater were required in cases where the assistance was
significant. In the present case the sentences should have ranged from 12 to 8 years, depending on the role
they played and any previous association with guns. para 8 The sentences are to deter criminals from
engaging in dealing in guns and lethal ammunition.
For more detail see next paragraph.
259.11b
Supplying firearms to criminals
Cases
Att-Gen’s Ref Nos 128-141 of 2015 and 8-10 of 2016 2016 EWCA Crim 54, 2 Cr App R (S) 12 (at p 72) S,
N, Mc, W, G and D pleaded guilty to conspiracy to transfer prohibited weapons and ammunition. They
were part of a sophisticated criminal enterprise which supplied firearms and lethal ammunition to other
criminals in the West Midlands and elsewhere in the UK. The conspiracy lasted 9 months and police
recovered eight firearms in working order (a Mach 10 machine pistol, six handguns and a sawn-off shot
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gun) with 492 rounds of ammunition. Many of the weapons were antique firearms which were put into
working order. Ammunition was found or manufactured to match the weapons. S was the leader and pleaded
on the second day of his trial. He was involved with five firearm transactions. S was aged 41 and a family
man. In 2002 he had a conviction for perverting the course of justice (3 months). N was the second in
command and the chief armourer. He accepted involvement with 4 guns. N was arrested in relation to one
of the guns and released on bail. He resumed working with his conspirators. N was a member of shooting
clubs and able to hold guns legitimately. He was aged 32 and a family man with no relevant convictions.
Mc, W, G and D were the key facilitators. Mc, W and G accepted involvement with three firearms. W was
stopped by police in the street going towards a lock up and was found to be in possession of three bullets.
The lock up was searched and in a rucksack a NSW police revolver and 400 rounds of ammunition were
found. Some fitted the revolver. All the rounds were specially made or adapted. Mc was aged 36, and had
in 2002 received 8 years for importing class A drugs. He had a young son and expressed remorse. W was
aged 28 with no relevant convictions. He had outward respectability and worked as a barber. W expressed
remorse. G was aged 33 years and had 70 previous convictions including one for armed robbery (5 years).
He had a troubled background and was remorseful. D accepted involvement with one firearm, which he
stored overnight and delivered it in the morning. D was aged 50 years and had convictions not serious
enough to aggravate the offence. He was a family man who expressed remorse.
Held. For S, we start at 25 years and so with plea, 22 years, not 16 ½. For N, we start at 23 years, so with
plea, 17 years and 3 months, not 13 years. For Mc, we start at 19 years, so with plea, 12 years and 8
months, not 9 years. For W, we start at 20 years, so with plea, 13 years, not 10 years. For G, we start at 19
years, so with plea, 12 years and 8 months, not 9 years. For D, we start at 16 years, so with plea, 10 years
and 8 months, not 7 years 4 months.
Gh pleaded to supply of sub-machine pistol. Ab was convicted of the same count. Two friends of Ab were
shot at by a passing car, believed to be in drug dispute. M sought out weapons with Ab as his junior partner.
Gh contacted M and Gh called S to pass on the order for firearms. A firearm was supplied. Police dug up
the pistol and ammunition in the garden of a man whose job was to store it. M was prosecuted for drug
supply. Gh was aged 32 and had 44 convictions including in 2007 for class A drug supply (3 ½ years’
custody). Ab was 26 and had 52 previous convictions many of them for class A drugs. Held. Gh was used
to convey instructions. He did not know the drug was particularly dangerous and he played a limited role.
For Gh we start at 8 years, so with plea, 7 years and 2 months, not 4 years and 11 months. For Ab 12
years, not 7 years 3 months.
CO and DM were convicted of supplying a revolver. CO wanted to acquire a gun. He discussed this with
DM, who contacted JS. S, G, Mc, D and W were all involved with the purchase. In a street, DM handed
over £1,500. DM checked the gun and started loading it with bullets. Police swooped and found the revolver
with five rounds in it and 20 more rounds in CO’s car. Another £1,500 was found in the car, which was the
other half of the purchase price. Pictures of the gun and ammunition was found on JS’s phone. CO was
aged 32 and had in 2002, a conviction for class A drug supply (3 ½ years’ custody). DM was aged 35, and
had convictions for robbery in 2004 (9 years’ custody) and class A drug supply in 2010 (7 years’ custody).
JS was aged 34 and in 2001, he had a conviction for wounding with intent and possession of a firearm with
intent. He shot two people, (9 years’ custody). Held. The only reason CO would have wanted the gun was
to kill, maim, terrorise or intimidate. DM was the go-between, closely associated with both sides of the
deal. He was also present when the gun and ammunition were handed over. JS was also a go-between and
present at the handover. For CO, 14 years, not 9 years. For DM, 14 years, not 12 years. For JS, we start at
12 years, so with plea 8 years, not 6 ½ years.
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H, F and JM pleaded to being involved in the supply of a revolver and ammunition. H and his brother, IH,
wanted a revolver and ammunition. IH took the lead and spoke to S. After phone contact between IH, U,
G, N and S, a handover was arranged. S and N met. The next day JM, F and G met at H’s place. JM brought
a bag with cash that he had received from F. G collected S and there followed a complex set of manoeuvres
and phone calls to shake off the police. JM’s car was stopped and he, H and F were arrested. In the car was
found a French 1873 Etienne revolver and 12 rounds of ammunition, which had been adapted to fit the
firearm. H was 31 years old and a family man. He had 25 convictions for dishonesty, breach of court orders
and drugs. He had not previously been given a custodial sentence. F was 27 years old and had no
convictions. His house was fortified. JM was 21 years old. The Judge found the firearm was for use in IH’s
drugs trade. He also found F aided H to take the cash. Held. For H, we start at 12 years, so with plea 8
years, not 5 years. For F, we start at 10 years, so with plea 6 years and 8 months, not 4 years 4 months.
JM assisted the brothers. His role was to drive F with the cash knowing it was something illegal. Initially
he thought it was drugs. During the journey he knew it was a gun. For JM, we start at 6 years, so with 10%
for plea, his good character and youth, 5 years and 5 months, not 4 ½ years.
259.19 Firearms Act 1968 s 5 Cases 5 years or less
R v Benson 2016 EWCA Crim 339 D pleaded to possession of a prohibited firearm and possession of
ammunition. D was arrested following an allegation of domestic abuse. During the police search, D’s
legally held shotguns were seized by police. D helped the police and showed police where he kept the key
to the gun safe. A functional World War II British Enfield revolver and 50 rounds of ammunition, which
were undisturbed in their original box, were also found. D said he inherited the revolver when his father
died. D knew it was illegal to keep it but had found it difficult to hand it in as time went by as it had
sentimental value. D was aged 34 or 35, ran a number of businesses and was a key employer in his area.
He also took part in various charity events. D had many character references. The pre-sentence report said
the risk of reconviction was low. The Judge found the revolver had been in D’s possession for 18 years and
there were exceptional circumstances which included the matters already mentioned and the secure high
quality hidden safe, the prospects of the pistol falling into wrong hands very low, no evidence it had ever
been used and D had helped police to discover it. The Judge started at 3 years and with plea gave 2 years.
Held. 2 years was not inappropriate but it was not necessary it was immediate so 2 years’ Suspended
Sentence Order.
259.20 Firearms Act 1968 s 5 Cases More than 5 years
See also: R v Sufian and Riaz 2015 EWCA Crim 2195 (S was convicted of possessing a prohibited weapon
and ammunition. R pleaded to same counts on day of his trial. S delivered bag with Webley 8mm handgun
and ammunition to flat. 15 minutes later R found with bag in flat. S no convictions. R never served custodial
sentence. Held. With the scourge of gun crime, 8 years for S and 7 years for R were severe but not
manifestly excessive.)
R v Moran 2016 EWCA Crim 343 (Conviction for possession of a machine gun and ammunition to match.
Found in kitchen cupboard hidden behind plinth. The gun’s design made it easy to conceal. Aged 23 with
12 court appearances for offences including supplying cannabis and robbery. Judge found gun and
ammunition was connected with drug dealing. Held. Taking into account the ammunition, an 8-year starting
point was not too close to the 10-year maximum sentence. The range was 7-9 years. 8 years upheld.)
259.52 Minimum sentences
Basic principles
R v Rogers Re B 2016 EWCA Crim 801 para 121 LCJ D pleaded to possession of a prohibited weapon.
Held. When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf
in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If
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they are not agreed, then the defendant can decide whether to seek a hearing. If the circumstances are agreed
by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether
he wants a hearing. As was explained in R v Lashari 2010 EWCA Crim 1504, 2011 1 Cr App R (S) 72
(p439) if a hearing takes place, then the Judge must determine the matters to the criminal standard of proof
and the burden is on the Crown to disprove the defendant’s account of the circumstances in which he
acquired the firearm. If the Crown fails to do so, the judge must proceed on the basis the defendant’s version
is correct. It does not, of course, follow that the judge, even if he accepts the defendant’s version of events,
will find that it amounts to exceptional circumstances. The hurdle for the defendant, in establishing
exceptional circumstances, remains a high one.
259.55 Minimum sentences
Are these exceptional circumstances
Custodians
Att-Gen’s Ref No 115 of 2015 2016 EWCA Crim 765 D was convicted of possessing a prohibited weapon.
Police officers visited her flat to arrest her for failing to attend a drug assessment. She volunteered that there
was a gun in her flat and showed them a hole in one of the sofas and where a BBM Olympic 0.38 blank
firing revolver was hidden. She said it belonged to a drug dealer called B. She claimed she was petrified of
him and he had previously placed the gun to her head and threatened to shoot her. She gave a description
of him and police were able to identify him. CCTV showed the D with B and others. The firearm was
prohibited because of its length. It had been drilled to remove obstructions for firing. D was aged 33 and
had 49 previous convictions on 21 occasions, recorded in six different names. Most of the offences involved
dishonesty, failing to surrender or breaching court orders. She had five previous convictions for possession
of Class A drugs and four for assault. Her partner was tried and acquitted. The jury accepted D was
consenting to the firearm being stored, probably in return for drugs from B. They found exceptional
circumstances because, a) the firearm was in poor condition, b) D was the custodian and not its owner, c)
D volunteered the existence and location of the firearm, albeit knowing a search would be conducted, d) D
was vulnerable because she was a long-standing drug user and e) she had recently been diagnosed with
hepatitis. On appeal the prosecution said, a) the firearm was not securely stored, b) it was being held for a
known criminal dealer in Class A drugs, c) the weapon was criminal per se and d) there were defects in the
mechanics so that the hammer had to be pulled back and the cylinder aligned manually. Held. para 32. The
circumstances do not come close to being exceptional. D must have known the possible uses to which the
gun might be put. The only possible exceptional feature might be her willingness to name the drug dealer
but on the facts here that was simply not enough. We substitute the minimum statutory term of five years
for 3 ½.
Earlier cases: I would expect the courts to follow Att-Gen’s Ref No 37 of 2013 and Att-Gen’s Ref No 115 of
2015, unless the circumstances were most unusual. I doubt if the LCJ’s decision in Att-Gen’s Ref No 64 of
2010 2010 EWCA Crim 2956 would now be repeated. Ed
259.57 Minimum sentences
circumstances
Are these exceptional circumstances? Defendant’s personal
See also: Att-Gen’s Ref No 91 of 2015 2015 EWCA Crim 1990, 2016 1 Cr App R (S) 43 (p 270) (It was
open to the Judge to find exceptional circumstances for mother who: a) was carer for her adult son who was
wholly dependent on her, b) pleaded, c) had very low self-confidence, d) had cancer, e) had had a colostomy
operation leaving her with problems and f) had clinical depression and panic attacks. The son’s GP was
very worried about what would happen to the son if she was sent to prison.)
259.64 Minimum sentences
Are these exceptional circumstances? Stun guns
R v Rogers Re B 2016 EWCA Crim 801 para 106 LCJ B pleaded to possession of a disguised prohibited
weapon and possession with intent to supply Diazepam (no appeal). In the early hours of the morning B
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was among a group of people in a town centre. At about 2.25 a.m., door staff thought that they had seen
one of the group with a stun gun and alerted the police. Officers went to investigate and heard the distinctive
crackling sound of a Taser. They saw B crouching down behind a parked car. He appeared to be trying to
hide something and was detained. A bag of 40 diazepam tablets and what appeared to be an Apple iPhone
4 were recovered, which turned out to be a form of stun gun. The officers tried it and it produced thick blue
sparks and made the same crackling sound that they had heard. B made no comment in police interview
and was bailed to return. Later he telephoned the police station and stated that the iPhone was “a novelty
item that he bought at the market and he didn’t know it was dangerous”. B was 27 and had a conviction for
possession with intent to supply cannabis in 2004, when he was 17 years old, (Referral Order). B had
relatively minor other convictions but had been out of trouble for some years. The pre-sentence report said
B’s version was that he had been showing one of these friends how the stun gun worked, by using it on
himself, just before he was arrested. The stun gun was bought in Bulgaria for about £13 as a novelty where
he had returned some 5 days before. It had remained in his bag ever since, except when he had taken that
bag to work that night. Further B had said he did not know that the stun gun was illegal. B had since said
he knew the stun gun was illegal, he had warned two friends against purchasing similar items, and had
purchased a domain name, “Lawawareness.co.uk” which he planned to use to convey information about
the law relating to such items to others. There was a statement saying possession of the gun in Bulgaria was
not illegal. Held. However, he chose to do this in a crowded public place in the early hours of the morning.
The Avis questions give the following information. The stun gun was marketed as a self-defence weapon.
It did not shoot bullets. It was assessed by an expert as applying a non-lethal but high voltage electrical
shock. It was purchased legitimately on the open market in Bulgaria. Possession of a similar item which
was not disguised as a mobile phone or a torch would not attract a mandatory minimum sentence under the
Firearms Act. As to its use by B, it was in his possession for only five days. For most of that time it was
kept in his bag. It was not used by him at all save to demonstrate to a friend what it did, and in demonstrating
it B administered the shock to himself and not to another person. By balancing all the factors, there were
exceptional circumstances, so 2 ½ years not 5.
259.65 Minimum sentences
Are these exceptional circumstances? Stun guns
R v Zhao 2016 EWCA Crim 1210 D pleaded to possessing a stun gun, possessing ammunition and three counts
of possessing stun guns disguised as Tasers. D was a taxi driver and when a female colleague said she was
anxious about attacks he gave her a stun gun. She reported it to her employer and D was dismissed. The
employers reported it to the licencing authority and they reported it to the police. The police searched D’s
home and D was fully cooperative. Police found two shotguns (which had licenses), a stun gun and three
stun guns disguised as torches. In interview D said he did not think the stun guns were illegal and he thought
his shot gun licence would cover the stun guns. Further the stun guns were for his self-defence against
burglars. D was aged 38 with no convictions. He had excellent personal references and a good employment
record and prison report. On appeal the defence said, a) the stun guns were not capable of delivering a fatal
injury, b) they were non-lethal self-defence weapons, c) they had not been used, d) except for the one given
to a colleague they had not left his home, e) there was no intention for using them for crime, f) D was cooperative, g) his age and good character told in his favour and h) his wife was expecting their first child
after three unsuccessful fertility treatments. Held. As D was aware of the reporting to the licences authority
and the police, there is weight to D’s contention that he thought the items were legal, as otherwise he would
have disposed of them. The defence factors made a powerful case for finding exceptional circumstances. 2
½ years not 5.
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