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