Journal

Do our gun laws leave us open to a US-style shooting?

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A critical look at UK firearms law and why it’s still lagging behind

GUns

Sadly, no law can ever truly prevent a killer obtaining a firearm, avoid detection by law enforcement, and murder people. It is simply not possible for law to do this.
However, tough firearms legislation certainly limits these incidents from occurring.

The UK law on access to guns is tough, and sensibly so. The approach here is that owning a firearm is a privilege, not a right. There is no US style-second amendment provision to enforce a right to bear arms in the UK. The application process to get a firearm is carried out by a local chief officer of police, because of the local information that police need to inform their judgment.

A potential owner must be a “fit person” to use a firearm and demonstrate a “good reason” to own one, which could be for shooting game, or historical re-enactment. There is no justification for a good reason being the applicant’s personal protection — a welcome contrast with the USA.

The Chief Officer must also be satisfied the applicant poses no danger to “public safety, or to the peace”. Some interesting legal cases help explain this a little better.

In Dabek v Chief Constable of Devon and Cornwall, the court stated that someone with a criminal record is likely to have a firearms application denied. Alcohol or drug abuse, evidence of aggressive or anti-social behaviour and hospitalisation due to mental illness will result in no licence being awarded. Ultimately, a chief officer has the final say on an application, and — as in ex parte Buckland — there is no appeal of new conditions imposed by the chief officer.

As for the application itself, a home visit including detailed interview and review of security arrangements is held. Continual review of criminal record databases takes place to ensure future criminal activity is picked up and reviewed, and no applicant can withhold a previous criminal record. The calibre and type of firearm must be recorded. Passport photos and references from character referees are needed, with the referees interviewed on the suitability of the candidate for a firearms licence. Medical records from a local GP must be shared, and police then share the decision to award a firearms licence with the GP — this means a lapse in certification can be monitored and the GP can give input over their concerns.

Once awarded, a licence must be renewed every five years, and a potential addition of a new firearm to the licence means a modification, essentially another review of the applicant, even for an identical weapon to the one currently on the licence.

Phew. And we all thought that magic circle application was hard.

It is simply very tough to get a gun legally in the UK. Justifiably, legal access means firearms offences continue to make up a small proportion (less than 0.2%) of recorded crime. In fact, whether legally obtained or not, the UK has suffered only three multiple casualty shooting incidents since 1987 — Hungerford, Dunblane and Cumbria. It is difficult to even begin to compare this record with that of the US. The law on access to firearms clearly works, considering it is nigh impossible to prevent all firearms tragedies.

The problem – however — is while access to firearms is well provisioned, the law as a whole governing this area is a mess.

Firstly, there are 34 different acts on the statute book, meaning understanding the law here is complex and requires lengthy and frustrating research. The main statute referred to in practice, the Firearms Act 1968, has never proved itself as the codifying act necessary to maintain consistency.

This confusing picture means there are loopholes that are actively exploited by criminals, with defendants sometimes walking away from charges on technicalities. What constitutes a “component part” of a firearm has not been defined by statute. There is widespread concern that there remains no set legal requirement to not reactivate deactivated (unusable) firearms to an approved standard.

Other key terms within the legislation are defined very poorly. The 1968 act defines a firearm as a “lethal barrelled weapon”, and in R v Thorpe an unhelpful test for lethality was developed to “assist” in determining it.

A firearm must be “capable of causing injury from which death might result if… misused.” This direction, Court of Appeal approved, has proved unsatisfactory. “Lethality” is a cause of endless courtroom debate.

There are further issues regarding terminology, as poor definition in the 1968 act means antique firearms are exempted from offences if they are held as a “curiosity or ornament”.

Although the Home Office Firearms Guide describes antique firearms as those which require ammunition on the “obsolete cartridge list”, this guide is complex and crucially, it isn’t the law. Courts don’t rely on it, and again, those acting illegally benefit as a result. It is strongly rumoured Thomas Mair, the suspect arrested for the murder of Jo Cox, used a modified homemade weapon of ‘antique’ appearance.

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Inconsistently, the main firearms offences depart from general principles of English criminal law — the principle of mens rea and the presumption of innocence, with an abundance of strict liability approaches (where proving intent to commit a crime is not necessary). Andrew Ashworth QC, an expert in this area, has stated:

A law that requires courts to imprison people who have no mens rea and who have failed to discharge a reverse burden of proof is highly questionable.

It appears more likely under the current law for a bumbling gun owner to be punished on firearms offences than organised criminal operations.

Enter the Law Commission.

Appropriately concerned with the state of the law, the Commission published report number 363, Firearms Law: Reforms to address pressing problems, in December 2015, with recommendations to address the criticism being incorporated into the Policing and Crime Bill for royal assent later this year.

To combat the complexity of the current framework, the Law Commission stated that reforms published in the report should be accessible, comprehensible, and consistent, giving certainty to citizens.

However, not choosing to codify the law of firearms into a new Firearms Act mean that these aims and recommendations are diluted, essentially producing a 35th piece of legislation which, ironically, further muddies the waters.

The component parts/reactivation issue is partly addressed by accurately defining key parts like barrels, breech blocks and cylinders. Clause 106 of the new bill reads that using “readily available tools” to convert firearms is prohibited and should address the previous poor wording of the Firearms Act 1982.

Problematically though, new standards on reactivation adopt the new EU measures to amend Directive 2008/51, which may wrongly assume a higher reactivation standard than that is currently applied under UK law. In fact, although the EU regulation intends to control acquisition of firearms and their components, it says precious little about how this is realistically to be achieved. And who can even tell if this regulation will mean anything now we’ve voted the leave the EU?

Antique weapons terminology is improved by properly defining what an antique firearm is, by reference to cartridge type and ignition system. The 1968 Firearms Act is also amended to include the offence of misuse of antique firearms as to catch criminals who exploit the confusion in the law. The lethality definition problem is tackled by moving to a scientific threshold of one joule of propulsive force test for lethality, so anything below one joule is not lethal; anything above would be.

But drawing a definitive line means that there is the possibility that firearms are not considered lethal if they are have fractionally less propulsive force than one joule. It is possible that such firearms could still kill.

Tasers and stun guns are not included in the Law Commission’s recommendations which is, in my opinion, surely an oversight, and a healthy understanding of physics is needed to work out what propulsive strength the Law Commission refers to when it says:

…a weapon above the lethality threshold but below 6 ft lb or 12 ft lb (as appropriate) would be a firearm.

As for the lack of mens rea requirements for firearms offences, the Law Commission’s inclusion of these in most new offences is welcome. Conspicuously, strict liability is retained for the new offence of reactivating deactivated firearms, ensuring the law’s characteristic inconsistency remains.

Absent too are linked offences not included in the Commission report but likely to increase in importance in the future. Thomas Mair likely obtained a handbook on producing homemade firearms on the internet, and there are literally thousands of videos explaining how to recommission firearms available on YouTube and Liveleak.

Similarly the advent of 3D printing of firearms — while clearly illegal under the current law — is something not addressed at all by the Law Commission proposals.

While gaining access to guns in the UK is tough for the law-abiding citizen, the legal framework needed when crimes occur, although somewhat improved, is still far from the accessible, comprehensible, consistent and certain ideal the Law Commission aimed for. In analysing whether our gun laws are fit for purpose, the answer is, in dissuading the criminal element in society, probably not. It’s still highly unlikely we will suffer a gun crime epidemic similar to the USA here in Britain, but as criminals adapt, sadly the law lags behind.

Tom English is an incoming LPC student at Swansea University.

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19 Comments

crashcourse4theravers

There should be more guns available to non-criminals because Britain is becoming so unsafe. We need guns to protect ourselves. If I was allowed, I’d go out and buy the biggest, loudest Mofo I could afford…. later biaatches.

Anonymous

The last thing the UK needs is more guns as that opens up the door to terror attacks, mass shootings and an up rise in gun crimes in general. We need strict laws to prevent mentally unstable people obtaining weapons and we need to carefully review each applicant so as to stop any crime like the 3 mentioned in the article again. I know it is only 3 major gun crimes we have had in a long time but that is 3 too many. We need to be a strong nation as a whole rather then dish out guns and open up the door for terrorists to cause major damage.

Professor

Firstly, there are already ‘very strict laws’ as you put it stopping mentally ill citizens from obtaining a firearms or shotgun certificate. The article refers to ‘legal’ ownership. There is NO link between legal firearm/shotgun ownership and terrorism, or serious crime. Instead of looking to the US, one should look closer. Many Member States in the EU have a more relaxed framework surrounding firearms laws, and they have little to no problems. It does not follow that a large amount of firearms within the population results in mass shooting/terrorism/crime. The US is extraordinarily unique in their approach to firearms law.

Anonymous

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Scouser of Counsel

Since when is the UK “becoming so unsafe”?

Statistics, please?

Anonymous

There is no such thing as a firearms/shot gun licence. The correct term is certificate.

Anonymous

I think this is a very well written piece and would commend Mr English on his work.

Gunsjustasubstituteforsmallpenis

The article also do not discuss issues such as Section 1 firearms shotguns and prohibited firearms, which are freely available in the US such automatic weapons. Tazer’s etc…

Sir Rooting of Tooting

I don’t think this is a good article. Some glaring inaccuracies and omissions. I’m a keen shooter with a first class LLB if that helps.

Anonymous

Not really.

Ciaran Goggins

What of the solicitor who was killed by plod? Then at the inquest they put song titles and lyrics in their evidence. Firearms are easily obtained abroad, getting them to Blighty is however a major problem.

Scouser of Counsel

United States of America:

Lax gun laws = Very high gun death rate.

United Kingdom:

Strict gun laws = Very low gun death rate.

It’s not a mere coincidence!

Chuckie Arlaw

I suppose it could be argued it is not causative either. Texas has the highest gun rate and I’m sure it has a pretty low gun death rate by US standards. UK has a marginally higher knife crime rate but pretty strong laws by comparison.

Lee Harvey Oswald

Correlation does not necessarily equal causation.

Lee Harvey Oswald again

Above poster got there before me.

Professor

The article is very descriptive and unfortunately the author has not provided evidence for his assertions. It is impossible to draw a comparison between US gun laws and the UK’s. The attitudes towards firearms is gargantuanly different, as is the law. US citizens (not all of course) fundamentally believe they have a right to own a gun for home protection for example, whereas the thought of this to UK citizens, and firearms holders is abhorrent.
You’re quite right however, when discussing the complexity and confusion the current law creates. It is as you say, more likely a law abiding firearms owner would find himself inadvertently on the wrong side, than it actually assist in stopping illegal gun ownership. This is a great area for further research, which is why next year I will be launching a rather large project, assessing the law further and attitudes etc. So watch this space. What I will undoubtedly show/evidence is there is no correlation between large firearms ownership and mass shootings/crime/terrorism etc, using other, more closer to home examples found within the European Union, and Europe. Another reason I can say that is because the new rules within the UK, from April this year, mean that GP’s are much more involved in the process. There is now a ‘code’ inserted into certificate holders medical files, that means should a holder be diagnosed with a mental health issue the police are immediately notified. I actually know a holder who had his firearms confiscated because his wife was diagnosed with depression! A rather starting development considering his wife would not have access to the firearms. She would not be allowed to know where the keys to his cabinet were, let alone hold one.

Rupert Both-Barrels

“There is no justification for a good reason being the applicant’s personal protection — a welcome contrast with the USA”. Really? As they say in the USA, when seconds count, the police are only minutes away.

Another Rupert

Oddly, it appears more difficult for the clients to obtain rifle and hand gun ammunition than to obtain the actual firearms (or so they tell me). Shotgun ammo is relatively easy to obtain as the police, certainly in my area, don’t impose any storage restrictions. In fact they actually discourage the storage of shotgun ammo in the same gun cabinet as the shotgun.

Robbie

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