The firearms users’ community have a difficult relationship with policing generally, while often enjoying good relationships with those men and women on the ground that we deal with routinely.
The origins of this friction date from the First World War (1914-19) and as we pass through the centenaries of those great and terrible events, it’s timely to look back to the roots of the control of firearms in the UK, which we cover in ‘the history lesson’ elsewhere in this journal. Once the 1920 Act had settled down – and been amended in 1936 – matters ticked over until the great step-change that came in 1973 in the wake of the unpublished (and rejected by Parliament) McKay Report.
Since then, certificate holders and registered dealers have been treated as target criminals for policing to trawl in search of prosecutions that are intended to knock the individual out of his hobby or business, with the bonus possibility of creating case law that will catch still more law abiding taxpayers and make criminals of them. That’s how statutes are developed, of course, but it’s noticeable that in the case of firearms, only four cases reached the courts of record in the 20th century prior to 1973 and dozens since. The last quarter of the century contains ten times as many cases in which certificate holders, collectors, dealers and other taxpayers were prosecuted than the first three quarters. All of those of our acquaintance were trying to comply with the legislation, while policing was trying to catch them out by shifting policy boundaries.
This change of tack was purely administrative - it doesn’t relate to any change in the law. The 1968 Firearms Act was an act of consolidation, bringing together the 1937 Act, the Firearms Act 1965 and the shot gun certificate provisions enacted in the Criminal Justice Act 1967 – and – crucially – the criminal use of firearms clauses. After that, nothing happened legislatively until the Firearms (Amendment) Act in 1988. And the 1988 Act, followed by legislation in 1993, 1994, and two more Firearms Acts in 1997 did nothing to change the basic principles of the firearms controls laid down in 1920. The 1981 book ‘the law relating to firearms’ is still definitive. What the legislative changes did was juggle dates, ages, categories and sentences; adding confusion by using words that they didn’t define. One patch upon another, each trying to correct flaws in earlier patches until the whole legislative mess resembled a worn out bicycle inner tube: more patches than tube.
At the back of all this was the discredited and now defunct Forensic Science Service. They were seeking to extend the controls by way of prosecutions, manipulation of the evidence, opinion and on occasions by misleading the courts with their opinions. The Crown Prosecution Service was formed to serve as a buffer between the police and the courts. No longer would charges be levelled at citizens based on a policeman’s opinion: it had to go to a lawyer in the CPS and get past him as a viable case for prosecuting. Except, it seems, in firearms matters.
The legislation that followed the Dunblane murders in 1996 was followed by three Labour administrations, lasting until 2010. That period did a lot to damage relationships between the law-abiding taxpayers one meets at club shoots and competitions and their government. We had a Minister of Sport who refused to recognise the sporting use of guns as a sport at all. We had a Home Secretary whose immediate reaction to every reversal his department suffered in the courts was to say that it must be made easier to get convictions. The solution was too easy for him: just do away with the courts. That’s worked everywhere else where despots don’t like an independent judiciary holding government’s nose to the constitutional rights of the people.
We also had Charles Clarke being quoted when he was Home Secretary as ‘you can shoot a burglar’; which is what it said in his copy of Stones Justices Manual (see issue#59). He didn’t last long in office, as although a member of the broad left, the rest of the left have consistently been both anti-gun and quite inventive in finding ways to screw the law-abiding. One of his contemporaries wanted to conduct a dissolution of the shooting clubs and sequester the money to compensate the police for the time it would take them to outrage the constitution thus.
The Home Office has done virtually nothing to target real gun crime since 1973, besides messing about with sentencing policy. Their think tank came up with a proposal for a national firearms administration in 1992. The police administrators promptly howled that firearms management was core police business. We couldn’t see that ourselves. The utility of giving chief constables firearm certification in 1920 was two-fold. They had police stations in walking distance of 90% of homes, making it easy for applicants, and they had access to databases like the criminal records and electoral rolls that needed to be consulted to check the application. One office in Swansea has been handling driving licences since the 1970s, so in 1992 and prior to the internet it was viable to do away with the 56-odd police offices handling firearms applications in favour of one office staffed by properly trained people. Except for the ‘security inspection’, which is (apart from in Scotland post their air weapon law) extra-statutory and based on a police plan to map the location of every firearm ready for the day they can seize them all: nothing to do with security, per se and leaky enough to have been how some burglars have been able to find and steal some firearms.
That said, crime prevention advice is useful and worthy, but would be more favourably received from a trusted source, such as one’s club secretary. Prior to 1920, when the Firearms Act handed chief constables responsibility for issuing firearm certificates, such ‘controls’ as there were amounted to taxes, which were paid at the Post Office. The Gun Licence was a ten-shilling tax from 1870 until 1966. You didn’t have to buy one if you had a Game Licence and when the Pistols Licence was introduced in 1903, you only had to buy that if you had neither of the other two. That simple tax put legitimate gun ownership beyond the means of a lot of the population.
The new firearm certificate cost five shillings, and the Act creating them repealed the 1903 Pistols Act. From that day to this, the fee for the certificate has been payable on grant, to defray those additional costs that the decision to issue would bring upon the chief constable: the printed document itself, someone’s time to fill it in and make a record file for the headquarters to keep; the envelope and stamp etc.: so Parliament intended chief constables to fund the costs of processing the application from existing funds.
That was easy. To process the application means checking the details on the form, checking that the person lives where he says he does and checking other records, such as the criminal records. Investigating the application and the applicant is a criminal investigation and only when that fails to detect a crime is the certificate going to be issued and the fees fund dipped into. A significant court case in 1966 supposedly changed all that – Joy v chief constable of Dumfries and Galloway – which says that the police should consider the application from the point of view of the applicant and not from that of a possible objector. It also says that wanting a certificate is not a ground for refusing one.
The Home Office continue to pay lip service to that landmark decision by mentioning it (in part) in their guidance to police – first published in 1989. In the real world it didn’t seem to last past 1973 as a lesson learned by police; as when one looks at Kavanagh v chief constable of Devon and Cornwall (1974) we find a man who had need of an RFD and a shot gun certificate because while he was developing an innovative shotgun action, shotguns came into the controls. That passed him by until James Edmiston told him and then he was in the same position as Major Joy – had guns, needed a certificate and like Major Joy was refused because he’d had the (home-made) guns without a certificate prior to his application.
He was one of many people who applied for a shot gun certificate between 1968 and 1988 who found out about the requirement belatedly. I knew it was coming because a small notice appeared in my local Post Office in Landkey, Devon, announcing their availability from the chief constable with effect from 1st May 1968. Aside from that I saw no other publicity. It created so little a ripple in the national press that it passed me by in the days when, as a newspaper delivery boy, I’d read all Fleet Street’s offerings before breakfast.
History tells us that the shot gun certificate was introduced because the Labour Home Secretary in 1966 wobbly Roy Jenkins – was in the hot seat when Harry Roberts shot three Metropolitan Police Officers dead in August that year. This was less than a year after Roy had ‘abolished’ the death penalty for an experimental five years. In 1965 the rope was only an option where the murder was by firearms or explosives; of a policeman or prison officer or there was more than one murder, so Harry was eligible for the drop on three out of five and Roy didn’t want the death penalty back. He opted instead to divert the press onto shot gun certificates. The plan for these certificates had been drawn up as part of the plan to abolish gun licenses – which took effect via the Local Government Act 1966 – as they cost more to issue than they raised in revenue. The shot gun certificate plan was shelved for the same reason – and there wasn’t a crime wave or any other relevant social necessity involving shotguns that the certificates would solve.
As an aside, what the newspapers were full of in 1966 was cases that would have resulted in the death penalty the year before, but for Roy Jenkins. Fleet Street was generally in favour of the rope and in the course of saying so made several murderers who came to trial in that period more famous and memorable than they would otherwise have been: Ian Brady, Myra Hindley, Reginald Kray, Ronnie Kray and Harry Roberts. The moors murderers would have got it on multiple killings. Ronnie Kray and Harry Roberts for using firearms (and Harry shot policemen) and Reggie for two murders.
Much of the ‘increase’ in shot gun certificate numbers after the initial 600,000 applicants is believed to be people taking on the requirement when they found out about it. Aside from creating criminals of several million shotgun users behind their backs, the new legislation also created a new vein of crimes to trawl – people who forgot to renew them. One such was Douglas Hurd MP, who was fined £2 for this dastardly failure in the 1970s.
Prosecutions of people who fall foul of the administration serve police purposes, since they appear in the statistics as ‘gun crime’ and the ‘increase’ in gun crime is largely driven by the police constantly trawling firearm certificate holder records in search of new cases to add to the statistics.
There was a brief shaft of light in 2010 when the new Prime Minister David Cameron signalled that the war on motorists was over and then a few weeks later when a spree killer shot people in Whitehaven, Cumbria, he said you couldn’t legislate for a switch flicking in someone’s head. That shut the Home Office knee-jerk department off from doing anything, so it was left to the Home Affairs Select Committee to ‘do something’. Which they did: its chairman Keith Vaz had another look at the 10% of firearms owners in the UK who do it on certificates. We reminded him at the time of the common law rights we all enjoy and he ignores and we responded to his report with our book ‘does the trigger pull the finger?’ (2011) in which we dredged up the Home Office’s own 1992 proposal for a national licensing body.
Policing is, of course, too keen on generating ‘gun crime’ statistics to let go of the database in which they find them, so the proposal fell on deaf ears and David Cameron was ‘turned’ by the police wanting a new crackdown on certificate holders in the wake of the Atherton Murders in 2012. He didn’t notice that what the police wanted was a second chance to run over people they’d already failed to find fault with. It started with the coroner who heard the case being told by Durham that there was no training for firearms managers.
So let’s get this right: the people sitting in chief constable’s offices doing a job that chief constables have had responsibility for since 1920 don’t get trained to do the job? And instead of training them to do it, we’re going to screw all the certificate holders around on the off-chance of finding someone with a certificate who shouldn’t have one according to the wet paint on their barn door – the revisions of the Home Office guidance to police that aren’t supported by case law.
Res ipsa loquitur. As if to rub it in, police firearms departments all seemed to recruit retired police officers to senior positions, without training them. So in Warwick Crown Court we heard the manager in Kevin Hunter’s case state that he agreed with everything the police had done in the earlier case in which Mr Hunter lost his certificates: including failing to use first identification procedures and changing the date of the alleged incident to get around Mr Hunter’s alibi without checking the new date with him before springing that one on the court.: as poor a review as those reviews in the Stephen Lawrence case. Mr Hunter won his appeal and bought a rifle on his new certificate. The manager promptly tried to make a crime out of that and when caught out said he’d made a mistake.
In Gwent, the Mark Holmes bundle for his section 44 appeal includes a ‘for and against’ evaluation of his 2016 application that bears no resemblance to the criteria set out in law, decided cases or even Home Office guidance to police: the published version anyway. Another untrained clerk? Or someone with access to restricted documents. Then the Assistant Chief Constable relied on a dodgy dossier for his evidence, including a drink-drive conviction that does not exist.
Devon/Cornwall responded to a prohibited person’s application for relief by fitting him up with a raft of fraud convictions and the name they were in as an alias and when caught out by an irate SRA secretary looking for a perjury prosecution, all objections to the application fell away and the police barrister described the episode as a ‘mistake’.
So there’s a lot of bad feeling on both sides, not made any easier when an untrained firearms manager leads 100 plus police officers to raid a section 5 dealer’s home in the presence of his young children in search of some crime or other and the resulting charge – possession of antiques without a section 5! Er, we don’t know how that one will pan out. Then there’s the protracted police investigation into straight-pull SA80 rifles imported from Canada in the 1990s that police are trying to link to un-numbered parts supposedly stolen from Warminster in the 2000s.
The desperate need for firearms crime statistics to make it look as though the police are doing something about real gun crime continues apace. Elsewhere, the Met have been too busy buying motorbikes, guns and ninja outfits to tackle the problem of knife-wielding sociopaths who also use cars as weapons to get much of a grip on the drugs gangs who actually do commit gun crimes from time to time. Back in the 1970s, armed robberies went through the statistical roof because, according to the late Colin Greenwood, the Met was looking the other way – at motorists. The same thing seems to be happening now, so we can look forward to a new gun and knife crime epidemic in London. And more criticism of policing by the SRA secretary.
Shooters’ Rights Guide to De-acs – It’s all change again
The gun trade have deactivated firearms for just about as long as they have existed. A firearm is a lethal barrelled weapon from which any shot, bullet or missile can be discharged. Deactivation (in Home Office newspeak) means rendering such a firearm incapable of discharging any shot, bullet or missile.
Students of the English language will be familiar with phrases around ‘spiking guns’, which was a simple and effective way of preventing muzzle loaded ordnance being fired – hammering an iron spike into the touch-hole. Another method, used by Santa Anna’s forces after the battle at the Alamo in 1836, was to smash the trunions off the guns. Gun barrels were cast with these protuberances on either side, by which the barrel was fixed to the carriage. In an 18th century English court case; the cocks were chiselled off the locks to make the pistols ‘safe’ for production in court.
Obviously, these methods of deactivation are all reversible. An iron spike can be drilled out and the touchhole bushed: double clamp hoops will replace trunions and new cocks can be made and fitted to locks. It remains thus: anything man makes, someone else can unmake and a third man can remake. Enid Blyton understood this and articulated it in the famous story of Big Ear’s bicycle bell. However, getting the Home Office to understand basic gunsmithing is more of a problem, as we shall see below.
The main reason for deactivating firearms: is alchemical – changing one product into another. Following America’s Civil War (1861-5) there were huge quantities of surplus smallarms at a time when they were not only redundant, but obsolete as well. The mainstay of both armies in that war were muzzle loaded muskets: Britain supplied both sides in the interests of fairness and neutrality. During the war breech loading designs proved themselves and took over afterwards, as the military both shrank and fanned out westwards for the Indian wars.
Scottish entrepreneur Francis Bannerman bought up surplus muskets to recycle the metal barrels. He fitted wooden broomsticks onto what was left and sold the resultant wallhangers as ‘quakers’. The British army took to converting worn out rifles so that they wouldn’t fire for drill practice purposes. Typical 19th century military deactivation amounts to a saw-cut through the breech, the firing pin cut off and the letters ‘DP’ stamped on the knox-form and quite often on both cheeks of the shoulder-stock.
Surplus to government requirements French model 1871 single-shot bolt action rifles were re-barrelled to 12 bore: auctioneers catalogue them as ‘Zulus’. Other – and often cruder – deactivations turn up. We encountered a batch of Martini Metford carbines, which had their cleaning rods hammered into the bores and firing pins shortened.
The political shift in Britain came in 1981 when blank shots were fired near HM the Queen during the trooping of the colours ceremony. The (then) police federation’s spokesman MP (Sir) Eldon Griffiths immediately proposed draconian restrictions on blank firers and the Home Office, as is their want, shelved his proposals (for later use) and handed him what they already had awaiting a ‘suitable legislative opportunity’.
Their problem, in 1981, was Major Noel Corry. A registered firearms dealer in Steeple Bumpstead on the Suffolk/Essex border; he was importing Spanish made flint and percussion rifles and pistols, correct in every detail except the touch-holes were not drilled: so you can work out for yourself that these were ‘readily-convertible’ to live firing with a hand drill and making that modification would be a criminal act unless one obtained a firearm certificate first.
Hence the 1982 Firearms Act: this legislation made possession of a readily convertible firearm an offence the same as if it were already adapted to live firing, but only if the crown could prove that the defendant knew how. In effect, if one tried to make the conversion, successfully or otherwise, that exposed guilty knowledge. The Home Office issued guidance to the gun trade as to how to make imitation firearms that were not readily convertible to live firing, most recently updated in 2011.
Enterprising registered firearms dealers used these guidelines to render live firearms inoperable. That had been going on for some years anyway, hence cases such as R v Jobling and R v Pannell in the 1970s. Robin Pannell was a registered firearms dealer in Devon/Cornwall who pioneered both deactivation and smooth-boring rifled barrels to make shotguns out of redundant military kit.
The smooth-boring of Bren guns etc. generated various court cases, as registered firearms dealers sold them to shot gun certificate holders and the police tried to find ways of preventing lawful trade and possession. In one case it was argued that the Bren gun barrel was less than 24 inches long. It isn’t, of course, it’s 25 inches, but that includes the flash hider and the discredited and now defunct Forensic Science Service argued (unsuccessfully) that it was the length of the bore that defined barrel length. That is true at the rear end, as the Act says to measure from where the charge is exploded on firing, which means the cartridge rim or, in the case of a muzzleloader, the nipple or priming pan touch-hole. That would mean all the metal behind that point – base plug and tang or locking lug – doesn’t count, despite being firmly attached.
In one case, a chap was prosecuted for owning two bored out Lee Enfields on his shot gun certificate. One was .303” smooth for blank firing and the other was in .410” musket. The jury acquitted him of the .410” and convicted him of the .303” in the time-honoured style juries have of trying to give each side something. This fetched up at the Court of Appeal before Lord Lane as Attorney General’s Reference no 3 of 1980 – R v Hucklebridge. That case solved the two problems put to the court by the Attorney General. Lord Lane said that firstly if the barrel was smooth bored and more than 24 inches long, it was a shotgun and secondly he said that all the parts of the gun to which said barrel was affixed were parts of what it is. The AG had suggested that conversion of the barrel only took that component out of section 1, leaving Mr Hucklebridge in possession of a section 1 receiver and bolt.
The shotgun point was largely over-written by the 1988 Act, which took smooth bored Bren Guns back into section 5 (prohibited weapons) controls by stating that conversion did not affect classification. These days you can ‘lift’ a section 2 shotgun into section 1 or 5 by modifications, but can’t take it the other way. The Lee Enfields went back into section 1 by virtue of having detachable magazines, although the Act did permit further modifications to keep them in section 2.
The guidance that accompanied the 1982 Act served the trade to process live weapons into de-acs without spending time in the dock the way Robin Pannell had – and would again in 1983 in a now discredited case in which the above-mentioned Forensic Science Service managed, by expert manipulation, to make a semiautomatic gun fire a burst. Following that case being discredited the FSS cast around for a new one and achieved it with exactly the same manipulation of a MAC 10.
Meanwhile, the Birmingham Proof House inspected firearms thus processed and issued certificates of unprovability stating that the weapon was deactivated and could not be fired. The London Proof House didn’t and two dealers in the MPD fell foul of London’s finest in consequence of not bothering to fag up to Birmingham. Peregrine Arms was prosecuted for transferring revolvers he said he’d deactivated to a person or persons unknown. The other wasn’t prosecuted, but his RFD was withdrawn, as had also happened to Peregrine.
The 1988 Act adopted deactivation as a principle. The Home Office minister at the time said it would enable self-loading rifle owners to keep their rifles, but in practice it opened the armouries to releasing thousands of obsolete military weapons onto the collector market. The Forensic Science Service was always uncomfortable with anyone but them having firearms of any type and seemed to spend most of their time after 1988 searching for ways of prosecuting people for trying to act lawfully. A case at Luton crown court in the late 1990s involved a chap with a de-ac collection. The crown claimed that his MG42 was a section 5 weapon because the barrel wasn’t welded in: his MG34 ditto (both had proof house certificates) and his Bren gun was said to be section 5 because the weld holding the barrel to the receiver had failed. This prosecution ignored the obvious – that they were not lethal barrelled weapons from which any shot, bullet or missile could be discharged. The case left the jury to decide into what category such items belonged.
Reactivation attempts also occurred. The case above came about because the Pre-95 guidelines required MG34 and 42 barrels to be welded in. The proof house would have wanted them in for inspection before the barrels were welded in, so the anomaly that caused this case was a dealer not completing the deactivation after inspection and before marking. Neither side called the proofmaster in to explain why the guns had the deactivation proof mark on them without complying with the guidelines and whether that contradiction invalidated the proof mark, as claimed by the crown.
Nevertheless, the process of reactivation necessitated obtaining (or making from scratch) the essential parts. These are restricted in the UK but easier to obtain elsewhere, so an Irish republican sympathiser reactivated an AK rifle by stripping the deactivated parts off it and rebuilding it using parts sourced from America: then he shot a police officer with it.
The Forensic Science Service came up with new guidelines about how to deactivate firearms in 1995 – this was when submachine guns had to be welded solid and revolvers could no longer chamber dummy cartridges etc. The 1995 guidelines also called for deactivation of magazines, which to this day can still be bought on the open market.
There followed twenty years of dealers and collectors trying to act lawfully and law enforcement trying to prove otherwise: with the odd knee-jerk reaction, such as the ban on air cartridge revolvers in 2003 and then we get to 2015 when the incoming Conservative administration started work on the policing and crime bill. That took two years to grind through Parliament and so far as deactivated firearms are concerned, this is what it says in clause 128:
128. Controls on defectively deactivated weapons
After section 8 of the Firearms (Amendment) Act 1988 insert—
“8A Controls on defectively deactivated weapons
(1) It is an offence for a person who owns or claims to own a defectively deactivated weapon—
(a) to make the weapon available for sale or as a gift to another person, or
(b) to sell it or give it (as a gift) to another person.
(2) Subsection (1)(a) does not apply if—
(a) the weapon is made available for sale or as a gift only to a person who is outside the EU (or to persons all of whom are outside the EU), and
(b) it is made so available on the basis that, if a sale or gift were to take place, the weapon would be transferred to a place outside the EU.
(3) Subsection (1)(b) does not apply if—
(a) the weapon is sold or given to a person who is outside the EU (or to persons all of whom are outside the EU), and
(b) in consequence of the sale or gift, it is (or is to be) transferred to a place outside the EU.
(4) For the purpose of this section, something is a “defectively deactivated weapon” if—
(a) it was at any time a firearm,
(b) it has been rendered incapable of discharging any shot, bullet or other missile (and, accordingly, has either ceased to be a firearm or is a firearm only by virtue of the Firearms Act 1982), but
(c) it has not been rendered so incapable in a way that meets the technical specifications for the deactivation of the weapon that apply at the time when the weapon is made available for sale or as a gift or (as the case may be) when it is sold or given as a gift.
(5) The Secretary of State must publish a document setting out the technical specifications that apply for the purposes of subsection (4)(c) (“the technical specifications document”).
(6) The technical specifications document may set out different technical specifications for different kinds of weapon.
(7) The Secretary of State—
(a) may from time to time revise the technical specifications document, and
(b) where it is revised—
(i) must publish the document as revised, and
(ii) specify in it the date on which any changes to the technical specifications that apply for the purposes of subsection (4)(c) take effect.
(8) In the case of a weapon rendered incapable as mentioned in subsection (4)(b) before 8 April 2016, subsection (1)(a) or (b) does not apply if the weapon is made available for sale or as a gift, or (as the case may be) sold or given, by or on behalf of a museum in respect of which a museum firearms licence is in force to another museum in respect of which such a licence is in force.
(9) References in this section to “sale” include exchange or barter (and references to sell are to be construed accordingly).
(10) In this section, “museum firearms licence” means a licence granted under the Schedule to the Firearms (Amendment) Act 1988.
(11) A person guilty of an offence under this section is liable—
(a) on summary conviction—
(i) in England and Wales, to imprisonment for a term not exceeding 12 months (or, in relation to offences committed before section 154(1) of the Criminal Justice Act 2003 comes into force, 6 months) or to a fine, or to both;
(ii) in Scotland, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both.”
It’s a weird piece of writing directed at screwing law-abiding collectors around. In effect, everything deactivated by whatever system used in the last 500 years is a ‘defective’ de-ac. They aren’t firearms (lethal barrelled weapons from which any shot, bullet or missile can be discharged): in effect, they are out of proof, although many of them weren’t ‘proofed’ as de-acs in the first place.
If you have any de-acs from any period you can keep them as they are. Doing nothing will be no more dangerous than it has been in the past. The forces of law and order don’t respect firearm and shot gun certificates, firearms dealers registrations and deactivation certificates as anything more than loopholes you use to try to possess your property, thus seeking to prevent their restricting the possession of firearms in the UK (now that the Forensic Science Service is gone) to police only.