Firearms

The Firearms Act 1968 defines firearms generally but also creates a number of sub-categories of firearm, namely shot guns, air weapons and prohibited weapons. The particular type of firearm determines which offences under the Act will be applicable.

Section 57(1) defines a firearm as any of the following:

Section 57(1B) defines a "lethal barrelled weapon" as a "barrelled weapon of any description from which a shot, bullet or other missile, with kinetic energy of more than one joule as measured at the muzzle of the weapon, can be discharged".

Section 57(1C) excludes from the definition of a "lethal barrelled weapon" any weapon meeting the definition of "airsoft gun" under section 57A.

Whether something is a “lethal barrelled weapon” is a question of fact e.g. see R v Singh (1989) Crim. L.R. 724, CA, which involved an evidential dispute as to whether a flare launcher was barrelled. Reported cases do not as a matter of law establish that certain types of weapons are “lethal barrelled weapons”, and it is accordingly necessary to call evidence proving that the definition in section 57(1B) is met: Grace v DPP (1989) Crim. L.R. 365, where the conviction was quashed as there was no evidence that the air rifle could have been fired. These cases pre-date the 2017 amendment of section 57 which introduced the definition of a “lethal barrelled weapon” by reference to the kinetic energy of the missile at the muzzle; it is now necessary to call evidence of this rather than of lethality.

Shot Guns

A shot gun is defined under section 1(3)(a) and 57(4) as “a smooth-bore gun (not being an air gun) which”:

Shot guns are exempt from the requirement for a certificate under section 1, but are subject to a separate requirement for a certificate under section 2 (see below under ‘Possession of Firearms and Shotguns Without a Certificate’).

Air Weapons

An air weapon is defined under section 1(3)(b) and 57(4) as "an air rifle, air gun or air pistol which does not fall within section 5(1)(a) [firearms designed or adapted so that two or more missiles can be successively discharged without repeated pressure on the trigger] and which is not of a type declared by rules made by the Secretary of State under section 53 of the Firearms Act to be specially dangerous". This will include, for example paintball guns.

Such air weapons are exempt from the requirement for a certificate under section 1 (see below under “Possession of Firearms and Shotguns Without a Certificate”).

Rules 2 and 3 of the Firearms (Dangerous Air Weapons) Rules 1969 provide that an air weapon is specially dangerous where:

Note that any air weapon which uses, or is designed or adapted for use with, a self-contained gas cartridge system is a prohibited weapon: section 5(1)(af). A self-contained gas cartridge system is one in which pressurised propellant gas is stored in a cartridge which also contains the missile. Each cartridge is a self-contained gas reservoir housed inside a cartridge case with an internal valve designed to release the content when the base of the cartridge is struck. Prior to shooting, each cartridge is pre-filled with sufficient compressed gas for one shot and has a missile seated in the front of the cartridge. The entire cartridge is then inserted into a chamber in the firearm’s barrel, or cylinder in the case of a revolver type firearm. Many air weapons are powered by internal reservoirs of compressed gas, or carbon dioxide canisters; these are not self-contained gas cartridge systems.

Prohibited weapons

Section 5(2) provides that weapons and ammunition of a number of different types, specified in subsections (1) and (1A), are ‘prohibited weapons’ and ‘prohibited ammunition’ respectively. See below under ‘Possession etc. of Prohibited Weapons, for a list of these types.

Imitation Firearms

An imitation firearm is “any thing which has the appearance of being a firearm (other than such a weapon as is mentioned in section 5(1)(b) of this Act [an weapon designed or adapted for the discharge of a noxious substance]), whether or not it is capable of discharging any shot, bullet or other missile”: section 57(4).

An offence requiring the someone has “possession” of or “has with him” an imitation firearm requires a ‘thing‘ which is separate and distinct from that person. Putting a hand inside a jacket and using fingers to force out the material to give the impression of a firearm falls outside the scope of such offences, as a person’s bodily part is not a separate thing: R v Bentham [2005] UKHL 18.

When considering whether a thing “has the appearance of being a firearm”, the jury should consider whether the thing had the appearance of a being a firearm to the time of the offence, not at any other time: R v Morris and King, 79 Cr. App. R. 104, CA. The tribunal may take into account evidence of witnesses who saw the thing at the relevant time (Morris and King), but the question of whether something “has the appearance of being a firearm” is a decision for the tribunal of fact to make on an objective basis, and it therefore does not matter if a witness knew that the thing was not in fact a real firearm: K v DPP [2006] EWHC 2183 (Admin).

Unlike with "Realistic Imitation Firearms", it is not always necessary to obtain evidence from the Forensic Service Provider (FSP) on whether the thing is an imitation firearm. Evidence of a Firearms Officer will usually be sufficient expert evidence.

Realistic Imitation Firearms

The Violent Crime Reduction Act 2006 created offences relating to the manufacture, importation and sale of realistic imitation firearms, and modifying an imitation firearm so that it becomes a realistic imitation firearm (see below under ‘Offences relating to Realistic Imitation Firearms’).

Section 38(1) of the 2006 Act defines a ‘realistic imitation firearm’ as follows:

  1. has an appearance that is so realistic as to make it indistinguishable, for all practical purposes, from a real firearm; and
  2. is neither a de-activated firearm nor itself an antique.

Section 38 goes on to provide guidance on determining whether something is “indistinguishable” from a real firearm.

  1. For the purposes of this section, an imitation firearm is not (except by virtue of subsection (3)(b)) to be regarded as distinguishable from a real firearm for any practical purpose if it could be so distinguished only—
    1. by an expert;
    2. on a close examination; or
    3. as a result of an attempt to load or to fire it.
    1. the matters that must be taken into account include any differences between the size, shape and principal colour of the imitation firearm and the size, shape and colour in which the real firearm is manufactured; and
    2. the imitation is to be regarded as distinguishable if its size, shape or principal colour is unrealistic for a real firearm.

    “Real firearm” means an actual make or model of modern firearm, or something meeting a description which could be used to identify by reference to their appearance a category of actual modern firearms: section 38(7) of the 2006 Act. “Modern firearm” is defined in section 38(8) as excluding any imitation of a firearm “the appearance of which would tend to identify it as having a design and mechanism of a sort first dating from before the year 1870.”

    Readily Convertible Imitation Firearms

    Section 1 of the Firearms Act 1982 provides that in respect of readily convertible imitation firearms “the 1968 Act shall apply […] as it applies in relation to a firearm to which section 1 of that Act applies.” The effect is that offences under the 1968 Act will apply to imitation firearms falling within section 1 of the 1982 Act. This is subject to exceptions under section 2(2) of the 1982 Act in relation to certain sections of the 1968 Act: 4(3) and (4), 16 to 20 and 47.

    Section 1 of the 1982 Act applies where the imitation firearm:

    "Readily convertible" means "it can be so converted without any special skill on the part of the person converting it and the work involved in converting it does not require equipment or tools other than such as are in common use by persons carrying out works of construction and maintenance in their own homes" (Section 1(6) Firearms Act 1982).

    In any proceedings for offences under the 1968 Act brought by virtue of section 1 of the 1982 Act, it is a defence for the accused to show that “he did not know and had no reason to suspect that the imitation firearm was so constructed or adapted as to be readily convertible into a firearm to which section 1 of [the 1968 Act] applies”: section 1(5) Firearms Act 1982. The burden is on the defendant to prove this on the balance of probabilities: R v Williams [2012] EWCA Crim 2162.

    Prosecutors should ensure that:

    The Olympic BBM firearm is an example of a weapon that may fall within section 1 of the 1982 Act.

    Deactivated Weapons

    Any firearm which is deactivated in accordance with section 8 of the Firearms (Amendment) Act 1988 ceases to be a firearm.

    De-activated firearms are expressly excluded from the definition of realistic imitation firearm in section 38(1) of the Violent Crime Reduction Act 2006. However, they may still constitute imitation firearms.

    Section 8A of the Firearms (Amendment) Act 1988 creates an offence of unlawfully selling or gifting, or offering to sell or gift, a "defectively deactivated weapon" (see below, under ‘Unlawfully selling or gifting, or offering to sell or gift, a "defectively deactivated weapon"’).

    Antique Firearms

    Section 58(2) of the 1968 Act exempts from the provisions of that Act all antique firearms which are “sold, transferred, purchased, acquired or possessed as curiosities or ornaments”, except in respect of offences under sections 19 (carrying a firearm in a public place) and (from 22 March 2021) sections 20 (trespassing with a firearm) and 21 (possession of firearms by persons previously convicted of crime).

    Prior to 22 March 2021 there was no statutory definition of an “antique firearm”. Section 126 of the Policing and Crime Act 2017 created a statutory definition by inserting new subsections (2A) to (2H) into section 58 of the 1968 Act. These provisions came into force, together with the Antique Firearms Regulations 2021, on 22 March 2021, subject to the transitional provisions (see below).

    Prosecutors are reminded that even if a weapon is defined as an antique firearm by virtue of these provisions, the exemption will only be available if it is sold, transferred, purchased, acquired or possessed as an "ornament or curiosity" as per section 58(2).

    Under these provisions, an “antique firearm” is a firearm that meets the following conditions:

    A report from a firearms expert is likely to be required to prove the date of manufacture.

    Certain cartridges previously listed in Home Office guidance as qualifying a firearm as antique are not included in the Antique Firearms Regulations 2021, whereas certain cartridges not previously listed in that guidance are included in those regulations: see Home Office Circular 001/2021: Antique Firearms Regulations 2021 and the Policing and Crime Act 2017 (Commencement No.11 and Transitional Provisions) Regulations 2021.

    This means that, from 22 March 2021, firearms chambered for the use with some cartridges ceased to be regarded as antique firearms, whereas firearms chambered for the use with some other cartridges became antique firearms (assuming they met the other criteria for antique firearms) and therefore, for example, are exempt from the need for a firearms certificate.

    Section 126(4) to (7) of the 2017 Act and Regulation 3 of the Policing and Crime Act 2017 (Commencement No.11 and Transitional Provisions) Regulations 2021 make transitional provisions for owners of firearms which ceased to be antique firearms consequence of the coming into force of section 126 of the Policing and Crime Act 2017.

    Offences

    There are a large number of offences relating to firearms created by the Firearms Act 1968. This guidance only covers the more commonly occurring offences. For a full list of offences under the 1968 Act, prosecutors should refer to the table in Schedule 6 to that Act. This guidance also covers more commonly occurring offences relating to firearms under other acts.

    Possession of Firearms and Shotguns Without a Certificate

    Section 1(1) of the Firearms Act 1968 creates an absolute offence of having possession of, purchasing or acquiring a firearm or ammunition without a certificate or otherwise than as authorised by such a certificate. Section 1(2) creates an offence of failing to comply with the conditions of such a certificate. Section 1(3) provides that this section does not apply to shot guns or air weapons (see the definitions above).

    Section 2(1) creates an offence of having possession of, purchasing or acquiring a shot gun without a certificate. Section 2(2) creates an offence of failing to comply with the conditions of such a certificate.

    Manufacture, sale, transfer etc of firearms

    Section 3 of the 1968 Act provides that it is an offence if, by way of trade or business and without being registered as a firearms dealer, a person:

    Section 32 of the Firearms (Amendment) Act 1997 specifies conditions for the transfer of firearms, including that such transfers must be in person, and creates an offence of failing to comply with these conditions.

    Section 32 of the Violent Crime Reduction Act 2006 similarly requires that air weapons sold by way of trade or business must be transferred in person, and creates an offence of failing to comply with this.

    Conversion

    Section 4(1) of the Firearms Act 1968 creates an offence of shortening the barrel of a shotgun to a length less than 24 inches, subject to an exception under s4(2) relating to the replacement of a barrel.

    Section 4(2) creates an offence of a person other than a registered firearms dealer converting into a firearm anything which has the appearance of being a firearm but which was originally incapable of discharging any missile through its barrel.

    Possession of articles for conversion of imitation firearms

    Section 4A of the Firearms Act 1968 creates an offence of a person other than a registered firearms dealer having in their possession or under their control any article that is capable of being used (whether by itself or with other articles) to convert an imitation firearm into a firearm with intent to use that article for that purpose.

    Possession etc. of Prohibited Weapons

    It is an offence under section 5(1) and (1A) of the Firearms Act 1968 to possess, purchase or acquire without authority any of the weapons and ammunition listed in those subsections, which are known as prohibited weapons and prohibited ammunition. Some of these items are subject to the mandatory minimum sentence provisions (see Mandatory Minimum Sentences section below).

    Section 5(2A) creates an offence of the manufacture of items listed in subsection (1) and the sale or transfer, possession for sale or transfer or purchase or acquisition by sale or transfer of prohibited weapons or ammunition without authority.

    Prohibited weapons and ammunition subject to the minimum mandatory sentence provisions:

    The following are also prohibited but are not subject to mandatory minimum sentences:

    Criminal Use of Firearms

    The Firearms Act 1968 creates a number of offences relating to the possession of firearms or imitation firearms with particular intents or in particular circumstances:

    Note that offences under sections 19, 20 and 21 may be committed using antique weapons which are sold, transferred, purchased, acquired or possessed as curiosities or ornaments, and which are therefore otherwise exempt from offences under the 1968 Act (see above, under ‘Antique Firearms’).

    Acquisition and Possession of Firearms and Air Weapons by Children and Young People

    Sections 22 to 24A of the Firearms Act 1968 create offences relating to the possession and acquisition by minors of firearms and air weapons and the supply of firearms and air weapons to minors:

    Using someone to mind a weapon

    Section 28 of the Violent Crime Reduction Act 2006 creates an offence of using another person to mind a dangerous weapon:

    1. A person is guilty of an offence if—
      1. he uses another to look after, hide or transport a dangerous weapon for him; and
      2. he does so under arrangements or in circumstances that facilitate, or are intended to facilitate, the weapon’s being available to him for an unlawful purpose.
      1. the weapon is available for him to take possession of it at a time and place; and
      2. his possession of the weapon at that time and place would constitute, or be likely to involve or to lead to, the commission by him of an offence.
      1. a firearm other than an air weapon or a component part of, or accessory to, an air weapon; or
      2. a weapon to which section 141 or 141A of the Criminal Justice Act 1988 (c. 33) applies (specified offensive weapons, knives and bladed weapons).”

      Section 28(2) would cover cases in which:

      • Simple possession would be an offence e.g. because the weapon is a prohibited weapon, because it is a firearm for which a certificate is require under section 1 and the person taking possession does not have such a licence, or because they are disqualified from possession under section 21 Firearms Act 1968; or
      • The person taking possession was intending to commit an offence with the weapon in future.

      Prosecutors should note that the evidential requirements of this offence may be harder to satisfy than those of simple possession under sections 1, 2 or 5 Firearms Act 1968.

      Offences relating to Realistic Imitation Firearms

      Section 36 of the Violent Crime Reduction Act 2006 creates an offence of the manufacture, importation or sale of realistic imitation firearms. It also made it an offence to modify an imitation firearm to make it a realistic imitation firearm.

      Section 37 of the 2006 Act provides specific defences: this allows persons in the course of a trade or business to import realistic imitation firearms for the purpose of modifying them to make them non-realistic. It also provides various defences if the realistic imitation firearm was available for:

      • a museum or gallery;
      • theatrical performances and rehearsals of such performances;
      • the production of films and television programmes;
      • the organisation and holding of historical re-enactments; or
      • Crown servants.

      The Violent Crime Reduction Act 2006 (Realistic Imitation Firearms) Regulations 2007 provide two further defences. The first is for the organisation and holding of airsoft skirmishing. This is defined by reference to ‘permitted activities’ and the defence applies only where third party liability insurance is held in respect of the activities. The second defence is for the purpose of display at arms fairs, defined in the regulations by reference to ‘permitted events’.

      The Regulations also specify the persons who can claim the defence for historical re-enactment. This is restricted to those organising or taking part in re-enactment activities for which third party liability insurance is held.

      For manufacturers, importers and vendors to claim one of the defences, they must be able to show that their conduct was for purpose of making realistic imitation firearms available for one of the reasons specified.

      Unlawfully selling or gifting, or offering to sell or gift, a "defectively deactivated weapon"

      Section 8A of the Firearms (Amendment) Act 1988 creates an offence of unlawfully selling or gifting, or offering to sell or gift, a "defectively deactivated weapon" to another person in the UK​.

      This offence seeks to prevent the availability of firearms deactivated to standards below those approved by the Secretary of State and which, subsequently, may be reactivated and used in crime.

      This offence only applies to the sale, gift or offer to sell / gift a defectively deactivated firearm. Accordingly, the possession of such weapons is not affected.

      Under section 8A(4), a "defectively deactivated weapon" means a firearm which has been rendered incapable of discharging any missile (and has therefore ceased to be a firearm or is a firearm only by virtue of the Firearms Act 1982 (readily convertible imitation firearms)), but in a way that does not meet the relevant technical specifications published by the Secretary of State for this purpose.

      Section 8A(5) places a duty on the Secretary of State to publish a document setting out the technical specifications for the deactivation of weapons which apply.

      The technical standards for deactivating firearms which are currently in force in the UK are set out in the Home Office guidance Deactivated​ firearms: Implementing Regulation (EU) 2015/2403. It should be noted that the deactivation standards set out in the Regulation do not cover all categories of firearm. Other categories of firearm therefore continue to be subject to deactivation standards in accordance with "Specifications for the adaptation of shotgun magazines and the deactivation of firearms: revised 2010". Such weapons should not be considered as a "defectively deactivated firearm".

      Museums which hold a museum firearms licence are excluded from the scope of the new offence under section 8A(8) where the relevant weapon was deactivated prior to 8 April 2016.

      Importation of Firearms

      Section 170(1) of the Customs and Excise Management Act 1979 (CEMA) makes it an offence for any person to, inter alia:

      • knowingly acquire possession of any goods with respect to the importation or exportation of which any prohibition or restriction is for the time being in force under or by virtue of any enactment; or
      • be in any way knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any such goods;

      where that person does so with intent to evade any such prohibition or restriction with respect to those goods.

      Section 170(2) of CEMA 1979 makes it an offence for any person to be knowingly concerned in the fraudulent evasion or attempted evasion of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment. For this purpose, “fraudulent” means dishonest conduct “deliberately intended to evade the prohibition or restriction” (per Lord Lane CJ in Attorney General’s Reference (No. 1 of 1981) [1982] Q.B. 848).

      The prohibition upon the importation of firearms is contained in Article 1 of the Import of Goods (Control) Order 1954.

      For these offences it is not necessary to prove that a defendant knew the precise nature of the goods, but it is sufficient to prove that a defendant knew that the goods were prohibited or restricted: R v Forbes (Giles) [2001] UKHL 40. For example, a person who believes he is importing controlled drugs but is in fact importing firearms is not afforded a defence by his mistake, albeit such mistake might be relevant to sentence. Knowledge of the prohibition or restriction may be demonstrated through, for example, hiding the goods or mis-describing them on any declaration.

      Prosecutors should, in the first instance, consider charging a Firearms Act offence. However, if for any reason the Firearms Act offence is not made out, section 170 CEMA should be charged. Section 50 of CEMA may also be applicable in such circumstances, but the offences under section 170 are sufficiently broad that it will generally not be necessary to rely on section 50.

      Sentencing for the importation of firearms is dependent upon the type of firearm: the maximum sentence is 7 years unless the firearm is of a kind mentioned in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or (1A)(a) of the Firearms Act 1968 in which case the maximum is life imprisonment (section 170(4A) of CEMA), and even outside of these cases the type of firearm will be relevant to sentence. Prosecutors should therefore aver in the indictment or charge the type of firearm that has been imported. (See below, under ‘Note on Disguised Weapons’, for the approach in relation to disguised stun guns.)

      Charging Guidance

      Evidence

      A firearm or suspected firearm should be recovered by a Firearms Officer, who should exhibit each weapon, component part and item of ammunition stating where each item was found.

      The Firearms Officer should provide a full description of each item found, including measurements, where relevant. The length of the barrel of a firearm should be measured from the muzzle to the point at which the charge is exploded on firing (section 57(6) Firearms Act 1968). Measurements will be particularly relevant where:

      • The weapon is a shotgun, as the dimensions of the barrel and bore will determine whether it is a firearm for the purposes of section 1, 2 or 5;
      • The firearm is a prohibited weapon as defined by section 5(1)(aba) see above;
      • The firearm is a prohibited weapon as defined by section 5(1)(ac) see above; and
      • The firearm is a shortened shotgun for the purposes of section 4(4) see above.

      Each weapon and component part should be photographed alongside a scale to indicate its dimensions. The timely provision of photographs may avoid the need for the weapon and the accompanying officer to come to court.

      Where the Firearms Officer is able to identify the weapon, component part or ammunition they should do so and indicate which offence(s) appear to have been committed.

      The Firearms Officer should state whether the weapon was loaded or not.

      Where the Firearms Officer is able to confirm that the weapon is an imitation firearm, they should do so. They should also indicate how closely it resembles a real firearm, based on their own knowledge of firearms. It is also important to determine the circumstances surrounding the possession and use of an imitation weapon.

      A statement from a Firearms Officer will usually be sufficient for air weapons and straightforward shotgun offences. However, where the Firearms Officer suspects that the air weapon is "specially dangerous" and is therefore a firearm for the purposes of the Act, the air weapon should be submitted to a Forensic Service Provider (FSP) for the issue to be resolved. Further, where an air weapon is used in such circumstances that suggest its muzzle energy exceeds 1 Joule (section 57(1B) Firearms Act 1968), consideration should be given to proceeding upon the basis that it is a firearm, and it should be submitted for forensic testing to confirm the muzzle energy.

      Where offences contrary to section 1 or section 5 Firearms Act 1968 (other than straightforward shotgun and air weapon offences, referred to above) appear to have been committed, a forensic report from a FSP or a firearms expert from a United Kingdom Accreditation Service (UKAS) accredited police force will always be needed for classification purposes.

      Prosecutors should not accept guilty pleas unless there is formal evidence as to the nature of the firearm.

      Where a prosecutor is applying the threshold test, they may have to rely on the opinion of a Firearms Officer, Force Armourer or a preliminary report from a FSP as to the nature of the firearm. Where such preliminary advice is given, the prosecutor must ensure the action plan identifies the forensic issues that need to be addressed.

      When a person has been charged with an indictable only offence, all firearms, weapons, component parts and ammunition should be submitted to the FSP with a request for a report. It will always be essential to determine the category of such items. The prosecutor and the police should identify other relevant forensic lines of enquiry, which may include:

      • Quasar testing;
      • Fingerprint analysis;
      • DNA testing;
      • Forensic Discharge Residue (FDR) on clothing and swabs;
      • Ballistics;
      • Compatibility of firearm with any ammunition recovered;
      • Nature of any "noxious liquid, gas or other thing"; and
      • NABIS submission and analysis (from April 2008).

      Some of these enquiries can be carried out independently of the tests needed to classify the item, e.g. ballistics analysis need not delay submission of a report to the police/CPS about classification. The prosecution should have regard to timescales likely to be set by the court for service of evidence and the arrangements for staged reporting, including any local tripartite protocol.

      Possession and “have with him”

      For offences requiring possession, the prosecution has to prove that the defendant knew they had something in their possession; it is irrelevant what they knew or thought it was: R v Hussain (1981) 72 Cr. App. R. 143; R v Waller (1991) Crim. L.R. 381.

      Possession is not limited to having physical custody, but includes where a defendant has something under their control: Sullivan v Earl of Caithness [1976] 62 Cr. App. R. 105. In this way, possession can be distinguished from the requirement that a defendant “had with him” a firearm; for discussion of the circumstances in which a defendant can be said to “have with him” a firearm, see R v Bradish & Hall [2004] EWCA Crim 1340.

      Public Interest Considerations

      Prosecution will generally be in the public interest given the seriousness of firearms offences and the risk to public safety.

      However, a prosecution may not be required where the contravention is technical and there has been no risk to public safety, and/or where the offence resulted from an oversight or misunderstanding. Guidance issued to the police in connection with certain aspects of firearms legislation can be found on the Gov.UK website. Factors relating to the physical or mental health of the defendant may also mean that prosecution is not in the public interest.

      Where a child or young person has committed an offence, prosecutors should consider diversion, according to the gravity of the offence and the principles of the youth caution and conditional caution scheme. See the legal guidance on Youth Offenders. A youth specialist should be consulted.

      Amnesties and Surrenders

      Police forces may initiate firearms amnesties or surrenders where they indicate that they will not arrest or seek a prosecution of those who surrender unlawfully held firearms and shotguns or prohibited weapons.

      These amnesties or surrenders usually last for a short period of time and are intended to help in the reduction of the criminal use of firearms or facilitate the introduction of new legislation (particularly where there is a need to ensure that firearms that were not previously prohibited are handed over before it becomes an offence to possess them).

      These provisions will rarely, if ever, extend to those accused of committing offences which involve the criminal use of firearms.

      Where an amnesty or surrender is in force, police officers seeking charging advice for possession of an unlawfully held or prohibited weapon should mark the file accordingly. Prosecutors cannot give an undertaking not to prosecute in these circumstances, but instead should consider each case on its merits.

      Where the Evidential Test is met, the starting point is that it would normally be in the public interest to prosecute having regard to the seriousness of these offences and the risk of harm presented. However, there may be circumstances where the existence of an amnesty or surrender means that that the Public Interest Test may not be met.

      Choosing the Charge

      Overlaps can occur between the more serious offences of possessing/using firearms for crime. It is important that the indictment is not unnecessarily overloaded but that it reflects the overall gravity and nature of the offending. Prosecutors should select charges that give the court adequate sentencing powers. Prosecutors should be familiar with the guidelines from the Sentencing Council (see Sentencing below).

      Where a firearm offence is disclosed in addition to another substantive offence, a suitable count should always be included on the indictment so that:

      • The issue of whether a firearm was used can be determined by the jury if necessary; a defendant is entitled to a jury decision on this issue: Eubank [2001] EWCA Crim 891;
      • The court has the power to impose the appropriate sentence; and
      • Any relevant provisions under sections 283 and 311 of the Sentencing Act 2020 can apply (see below, under ‘Sentencing’).

      Where the weapon in question is not recovered, and thus its status remains unknown, it is not duplicitous to include the phrase "firearm or imitation firearm" in a count under sections 17 or 18 of the 1968 Act.

      There may be an overlap between an offence contrary to section 1 or 2 and section 19 Firearms Act where a person with a firearm or loaded shotgun for which no certificate is held is in a public place. The following factors should be considered when determining the appropriate charge:

      • Section 1, section 2 and section 5 are offences of strict liability;
      • Section 19 provides a defence of "lawful authority or reasonable excuse" for possession;
      • Section 1 and section 2 are triable either way with a maximum penalty of 5 years;
      • Section 19 is triable either way but carries a maximum penalty of 7 years;
      • Section 1 and section 2 do not require the weapon to be loaded. No certificate is required for possession of shotgun cartridges; and
      • Section 19 requires the shotgun to be loaded or for there to be possession of a firearm and suitable ammunition.

      The following factors should be considered when deciding whether to charge offences under sections 16, 16A, 17 or 18 of the Firearms Act 1968:

      • Admissions or explanation given by the defendant in interview;
      • Whether the weapon was real;
      • Whether the weapon was loaded;
      • The imminence of any probable use;
      • Whether the victim or any other person present believed that the weapon was real;
      • Whether the weapon was associated with other criminal activity; and,
      • Whether the subject was in possession (constructive or otherwise) of relevant ammunition, whether loaded or not.

      Prosecutors should note that section 16 offences can only be committed with a real firearm. Consideration should be given to an attempt where the defendant expresses a belief that the weapon was a real firearm.

      Section 16 makes it an offence to possess a firearm "with intent to enable another person to endanger life". This requires proof that the possessor intends life to be endangered, although it is sufficient if the intent is that the firearm or ammunition should be used in a manner which endangers life as and when the occasion requires. In R v Jones (IF) [1997] 1 Cr. App. R. 46, it was held that enabling the other person meant more than giving that other the opportunity to endanger life, should they wish to. The offence is not made out simply because the possessor intended to supply the firearms or ammunition to persons who happened to be criminals. However, prosecutors should look at all of the surrounding circumstances of the case to see if there is sufficient evidence that would enable a jury to infer that the possessor knew that the ultimate recipient, whoever that might be, would use the firearms or ammunition in a manner that would endanger life. Factors that might be sufficient include: the nature of the firearm and ammunition in question, the circumstances in which they came to be in possession of the items, the circumstances in which they are found and whether there is evidence to suggest that they are part of a larger criminal enterprise: see R v Clarke and Opoku [2010] EWCA 12.

      Section 16A may be more appropriate where the necessary intent for section 16 cannot be proved, as the intent to cause another to believe that unlawful violence will be used, is more readily inferred. Section 16A can be used where the firearm is an imitation.

      There is some overlap between charges under section 17 and 18:

      • Section 17(1) requires "use" or "attempt to use" a firearm or imitation firearm with intent to resist arrest.
      • Section 17(2) requires "possession" of a firearm or imitation firearm at the time of commission or arrest for a Schedule 1 offence.
      • Section 18(1) covers the same intention, but at an earlier stage and refers to "any indictable" offence. It requires "having with them" a firearm or imitation firearm.

      Prosecutors should check to see if a defendant has committed an offence under section 21 Firearms Act 1968 whenever a firearm or ammunition is involved. The custody release papers include an acknowledgement of this requirement. A memorandum of conviction or certificate of conviction and a signed copy of the release form should be obtained.

      Disguised Stun Guns

      Stun guns which are disguised as other objects (such as torches or mobile phones) are prohibited weapons contrary to both section 5(1)(b) and section 5(1A)(a). The latter attracts a mandatory minimum sentence whereas the former does not.

      Depending on the circumstances, the mandatory minimum sentence may be arbitrary and disproportionate. Where section 5(1)(b) is charged, the Court may still pass a significant sentence.

      Accordingly, where a stun gun is disguised as another object, section 5(1)(b) should be charged unless there is evidence of any use or intended use of the stun gun, or the commission or alleged commission at the same time or recently of other relevant offences.

      For offences of firearms importation contrary to section 170 of CEMA, where the firearms falls within section 5(1)(b) the offence is subject to a maximum sentence of seven years, but where the firearms fall within section 5(1A)(a) the maximum is life imprisonment. As noted above (see under ‘Importation of Firearms’), prosecutors should aver in the indictment the type of firearm involved in the section 170 offence. For disguised stun guns, prosecutors should aver section 5(1)(b) rather than section 5(1A)(a) unless the criteria in the preceding paragraph are met.

      A firearms expert will classify the weapon as a firearm and may flag up that it has the potential to be a disguised weapon. However, the question of whether the weapon is, in fact, disguised is a question of fact for the court; prosecutors will need to ensure that they have a detailed description of the weapon on file, and a photograph will also assist.

      Where a decision is made to charge a stun gun as a disguised weapon under section 5(1A)(a), prosecutors should be alert to any defence contention that an object has a dual purpose and, therefore, is not a disguised firearm. Where a case involves a dual purpose object (for example, a combined torch and stun gun), unless it is immediately apparent that the object contains a firearm then it is a disguised weapon and may be charged as such.

      Forward-venting blank-firing weapons

      Blank-firing weapons imported and sold in the UK will normally have a fully obstructed dummy barrel and will vent the gas from the fired blank cartridges in an upward or sideways direction.

      Many blank-firing weapons sold in other parts of the world are designed differently, in that they vent the gas from a fired cartridge forward through the barrel of the weapon. There is normally some form of partial obstruction to prevent the discharge of normal bulleted cartridges. The possession of such a gun will usually fall under the control of the Firearms Act 1968, depending on its design. Examples of possible charges are given below:

        Section 5(1)(aba) of the Firearms Act 1968

      Many forward-venting blank-firing weapons are capable of discharging a missile with lethal potential. Due to their dimensions they are potentially subject to section 5(1)(aba). Some may require minor modifications in order to discharge a missile, but often this can be achieved by the unscrewing of a muzzle plug, but as long as the modifications can be carried out using simple household tools, such a weapon would still be subject to either section 1 or section 5 of the 1968 Act by virtue of the provisions of the Firearms Act 1982. (However, simply removing a screw-in muzzle plug is not normally regarded as "converting" a gun, as laid down in the 1982 Act, and under such circumstances the gun would simply be classified as a lethal barrelled weapon in its own right.)

      This classification would not be appropriate if the gun had been designed as a signal pistol (for example, because they are capable of accepting a screw-in flare launcher) because such guns are specifically exempted from section 5(1) (aba); instead, a classification as a section 1(1)(a) firearm would be appropriate and a firearm certificate would be required.

      This would apply to forward-venting blank-firing weapons that can be proven to have been designed for the discharge irritant gas cartridges. Examples include Weihrauch HW 88 and Umarex Walther P88 as they are designed to discharge a noxious substance.

      In the context of a weapon prohibited under section 5(1)(a), the words "designed or adapted" required only that the gun be capable of rapid burst fire; proof of an intention on the part of the designer that it be used for that purpose was not required - R v Law [1999] Crim. L.R. 837. In R v Rhodes [2015] EWCA Crim 155, the Court of Appeal held that a similar interpretation of the words "designed or adapted" applied to section 5(1)(b), such that forward venting guns with partially obstructed barrels that are capable of firing gas cartridges may be captured by this section.

      These weapons should be submitted to a FSP for examination.

      Consent

      Proceedings for certain summary only offences under the Firearms Act 1968 may be instituted within 4 years of the offence rather than the usual six months; however, if such proceedings are instituted more than 6 months after the offence, DPP consent is required: section 51(4). Refer to the guidance on Consents to Prosecute for further guidance.

      Venue

      Prosecutors should consider the Sentencing Council’s guidelines on sentence (see below, under ‘Guidelines’).

      Offences contrary to sections 1 and 2 Firearms Act will be usually suitable for summary trial where there has been a technical, inadvertent or minor breach of licence conditions or where the firearm has remained on private property.

      Possession etc. of weapons "designed or adapted for the discharge of any noxious liquid, gas or other thing" contrary to s 5(1)(b) remains an either way offence and, where the weapon is a stun gun or CS spray, offences of straightforward possession of these items will normally be suitable for the magistrates' courts.

      Trial on indictment will be appropriate where:

      • the weapon was real as opposed to an imitation;
      • the weapon was used;
      • the weapon was visible in a public place;
      • the firearm was loaded;
      • the weapon was used or produced whilst committing another offence;
      • the defendant was in possession of more than one weapon;
      • damage, injury or fear of injury was intended or caused;
      • the weapon was carried for self-defence;
      • the weapon was intended for unregistered sale or transfer;
      • the weapon was recovered in connection with drug dealing, gang association or any other organised criminal activity; and
      • the weapon was a sawn-off shotgun (falling short of being a prohibited weapon).

      Sentencing

      Guidelines

      The Sentencing Council definitive guideline for sentencing firearm offences came into effect on 1 January 2021. A similar guideline for importation firearms is expected before the end of 2021. Prosecutors should now use these guidelines rather than the previous caselaw, such as R v Avis (1998) 1 Cr. App. R. 42.

      Life Sentences under the Sentencing Act 2020

      The following offences relating to firearms are offences to which section 283 of the Sentencing Act 2020 (life sentences for second listed offences) is applicable:

      • Section 16, 17(1) or 18 of the Firearms Act 1968; and
      • Robbery where at some time during the commission of the offence, the offender had in his or her possession a firearm or an imitation firearm.

      The provision relating to robbery only applies if the defendant has admitted before the court that they had a firearm in their possession during the robbery, or if the jury return a specific verdict establishing that fact: R v Hylands [2004] EWCA Crim 2999 CA.

      The following offences relating to firearms are offences to which section 285 of the Sentencing Act 2020 (required life sentence for offences carrying a life sentence) is applicable: sections 16, 17(1), 17(2) and 18 of the Firearms Act 1968.

      Extended Sentences under the Sentencing Act 2020

      The following offences relating to firearms are offences to which section 255 and section 280 of the Sentencing Act 2020 (availability of extended sentence of imprisonment) may be applicable by virtue of being specified violent offences: sections 16, 16A, 17(1), 17(2) and 18 of the Firearms Act 1968.

      Mandatory Minimum Sentences under the Sentencing Act 2020

      Section 311 of the Sentencing Act 2020 mandates minimum sentences for defendants convicted of offences listed in Schedule 20 who were aged 16 or over when the offence was committed.

      The offences listed in Schedule 20 relate to:

      • possession of particular types of prohibited weapon under section 5 of the 1968 Act, namely those specified in subsections (1)(a), (ab), (aba), (ac), (ad), (ae) or (af) and (1A)(a);
      • manufacturing etc relating to one of these particular types of prohibited weapon, under section 5(2A);
      • offences under sections 16, 16A, 17, 18, 19 or 20(1) of the 1968 Act involving a prohibited weapon of one of these particular types; and
      • an offence under section 28 of the Violent Crime Reduction Act 2006 (using someone to mind a weapon) involving a prohibited weapon of one of these particular types.

      The minimum term for defendants over 18 years at the time when the offence was committed is a custodial term of 5 years; for defendants under 18 years at the time the offence was committed, the term is 3 years: section 311(4) of the Sentencing Act 2020. However, where the mandatory minimum sentence applies to an offence under section 28 of the Violent Crime Reduction Act 2006, the relevant age is the age when the offender was convicted rather than when the offence was committed: section 311(5).

      The court must impose the mandatory minimum sentence unless it is of the opinion that there are “exceptional circumstances” relating to the offence or the offender which justify not doing so: section 311(2).

      For guidance on the application of “exceptional circumstances” (under the pre-Sentencing Act 2020 law), see R v Jordan, Alleyne and Redfern [2004] EWCA Crim 3291 and R v Rehman [2006] 1 Cr. App. R. (S.) 77.

      The fact that a stun gun is of limited power is not considered to be an exceptional circumstance justifying departing from the mandatory minimum sentence: see R v McCarthy [2013] EWCA Crim 2500.

      Where sixteen and seventeen year olds are subject to a mandatory minimum sentence of 3 years, the case must be committed to Crown Court for trial. The youth court has no jurisdiction to try such cases: section 24(1B) Magistrates Courts Act 1980.

      Punishments for Firearms Offences

      For offences under the Firearms Act 1968, prosecutors should refer to the table contained in Schedule 6 to that Act, which shows the punishments available.

      For offences discussed above which are outside the Firearms Act 1968, the available punishments are shown on the table below.

      Provision creating offence

      General nature of offence

      Section 32 Firearms (Amendment) Act 1997

      Transfer of firearm or ammunition other than in person

      For a firearm of ammunition subject to s1 of the Firearms Act 1968:

      Summary: 6 months or a fine of the statutory maximum; or both.

      On indictment: 5 years or a fine; or both.

      Section 32 Firearms (Amendment) Act 1997 ​

      Transfer of firearm or ammunition other than in person​

      6 months or a level 5 fine; or both.​

      Section 28 Violent Crime Reduction Act 2006

      Using someone to mind dangerous weapons

      Summary: 6 months or a fine of the statutory maximum; or both.

      On indictment: 5 years or a fine; or both.

      May be subject to a mandatory minimum sentence; where this applies, the maximum sentence is 10 years rather than 5 years

      Section 32 Violent Crime Reduction Act 2006

      Transfer of an air weapon other than in person

      6 months or level 5 fine; or both

      Section 8A Firearms (Amendment) Act 1988

      Unlawfully selling or gifting, or offering to sell or gift, a defectively deactivated weapon

      Summary: 6 months or a fine of the statutory maximum; or both.

      On indictment: 5 years or a fine; or both.

      Section 170 Customs and Excise Management Act 1979

      Importation of firearms

      Summary: 6 months or a fine of £20,000 or of three times the value of the goods, whichever is the greater

      On indictment: 7 years or a fine; or both

      Where the offence relates to a firearm of a kind specified in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af), (ag), (ba) or (c) or (1A)(a) of the Firearms Act 1968, the maximum sentence is life imprisonment

      Accessible version of table above

      Provision creating offence: Section 32 Firearms (Amendment) Act 1997

      General nature of offence: Transfer of firearm or ammunition other than in person

      Mode of Trial: Triable Either Way

      Punishment: For a firearm of ammunition subject to s1 of the Firearms Act 1968:

      • Summary: 6 months or a fine of the statutory maximum; or both.
      • On indictment: 5 years or a fine; or both.

      Provision creating offence: Section 32 Firearms (Amendment) Act 1997

      General nature of offence: Transfer of firearm or ammunition other than in person

      Mode of Trial: Summary Only

      Punishment: For a shot gun: 6 months or a level 5 fine; or both.​

      Provision creating offence: Section 28 Violent Crime Reduction Act 2006

      General nature of offence: Using someone to mind dangerous weapons

      Mode of Trial: Triable Either Way

      Punishment: Summary: 6 months or a fine of the statutory maximum; or both. On indictment: 5 years or a fine; or both.

      Additional provisions: May be subject to a mandatory minimum sentence; where this applies, the maximum sentence is 10 years rather than 5 years.

      Provision creating offence: Section 32 Violent Crime Reduction Act 2006

      General nature of offence: Transfer of an air weapon other than in person

      Mode of Trial: Summary Only

      Punishment: 6 months or level 5 fine; or both

      Provision creating offence: Section 8A Firearms (Amendment) Act 1988

      General nature of offence: Unlawfully selling or gifting, or offering to sell or gift, a defectively deactivated weapon

      Mode of Trial: Triable Either Way

      Summary: 6 months or a fine of the statutory maximum; or both. On indictment: 5 years or a fine; or both

      Provision creating offence: Section 170 Customs and Excise Management Act 1979

      General nature of offence: Importation of Firearms

      Mode of Trial: Triable Either Way

      Punishment: Summary: 6 months or a fine of £20,000 or of three times the value of the goods, whichever is the greater. On indictment: 7 years or a fine; or both.

      Additional provisions: Where the offence relates to a firearm of a kind specified in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af), (ag), (ba) or (c) or (1A)(a) of the Firearms Act 1968, the maximum sentence is life imprisonment.

      Sentencing where firearms are used in other offences

      For offences in which firearms are used, this should be marked by a consecutive sentence, subject to regard being had to the totality of the sentence then passed: R v McGrath (Sean David) (1986) 8 Cr. App. R. (S.) 372.

      However, where the use of a firearm led on to the primary offence, which could not be separated from the firearms offence (for instance where the weapon actually seriously harms or kills another person, then separate and consecutive sentences can become artificial: R v Johnson [2005] EWCA Crim 2281.

      Forfeiture of firearms and cancelation of certificates

      Section 52 of the Firearms Act 1968 contains provisions as to the circumstances in which a sentencing court may order forfeiture or disposal of firearms and/or may cancel any firearm or shot gun certificate held by the offender.

      The weapon may be of use to Force Armourers and FSPs. Therefore, unless the Police specify otherwise, disposal of the weapon should not be routinely requested.

      The Code for Crown Prosecutors

      The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

      Prosecution guidance

      This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.

      The Crown Prosecution Service
      102 Petty France,
      London, SW1H 9EA

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