Challenging the Prosecution Expert Evidence in Firearms Related Cases

March 2013 – written by David W. Dyson

It has often been said that the classification of firearms is a mixed question of fact and law, with experts instructed both by the prosecution and defence applying legal classifications. But the vast majority of firearms experts have no legal qualifications.

Specific charges brought under the Firearms Acts can be particularly susceptible to the opinions of experts because they are often based completely on their classification in law of the exhibits. Increasingly though, and as a result of fiscal cut-backs Police Forces are relying more on in-house examiners rather than incurring the expense of specialised external forensic providers. Some Police Examiners are very good, but there have been many instances where David Dyson has been able to identify errors in classifications which have resulted in charges carrying a minimum mandatory 5 year custodial sentence being dropped. The prosecution examiner simply got it wrong.

When an examiner instructed by the defence approaches his task he will normally have the benefit of knowing how the prosecution classify the weapon, and will certainly address the conclusions of the prosecution report, but before looking at the precise detail, it is important not to forget the basics.

With the exception of weapons such as CS gas sprays, stun guns and a few specifically defined items, alleged firearms, whether they are rifles, pistols, shotguns or revolvers must be both “barrelled” and “lethal” before they can be said to be firearms for the purposes of the Firearms Acts. Section 57(1) of Firearms Act 1968 defines a firearm as “a lethal barrelled weapon of any description capable of discharging any shot, bullet or other missile…

Despite being capable of discharging a bullet, certain items which have the appearance of firearms, for instance crudely modified imitation firearms, may not possess a true barrel, and faults or poor design may allow dissipation of so much of the expanding gases which propel the bullet, that it cannot be said to have lethal potential when fired. In either case the item fails to be a firearm and a defence may arise whatever the specific classification applied.

The defence expert should also be expected to consider the test procedures and protocols adopted by the prosecution; was anything done to the weapon before it could be fired? was conventional ammunition used or were modifications made to allow discharge? If the gun was not capable of discharging any shot or bullet when seized did it conform to the definition of a firearm at that time?

The importance of this aspect was clearly highlighted in the Court of Appeal judgment in R v. William Bewley [2012] 2 Cr. App.R. 27, CA a case in which David Dyson was instructed. It is common practice for some firearms examiners employed by Forensic Providers instructed by the prosecution to use additional elements in order to get a gun to fire, or to use unconventional methods of loading. It could be that such techniques amount to conversion. The significance of this is that possession of a “firearm” is a strict liability offence, and even if the defendant had no intention of using it, and may not even have been aware that the gun was capable of being fired a conviction will result. If however the “firearm” is not capable of being fired without some form of intervention, the most appropriate classification may be as a “readily convertible imitation firearm.” Possession of such an item could still amount to an offence, but a defence is available to a defendant who did not know, and had no reason to suspect that the imitation firearm was so constructed or adapted so as to be readily convertible into a firearm. (Section 1(5) Firearms Act 1982)

If a firearm is not capable of firing, or if parts are missing the prosecution may define the exhibit as “component part(s)” of a firearm, which can sometimes amount to the same offence as having the complete weapon, but there is no statutory definition of a “component part”, and it is generally accepted that not all parts are “component parts” for the purposes of the Act, including the magazines of pistols or sub-machine guns. Further, and perhaps surprisingly, possession even of accepted “component parts” of shotguns does not amount to an offence. One rather bizarre consequence of this is that if the accused is in possession of the action, or firing mechanism of a sawn-off shotgun, a 5 year sentence is on the cards, if though the barrels are not present what is to say that the same action is not part of a fully barrelled weapon? In that case no offence has been committed. Arguments also exist with regard to parts of other weapons, for instance stun guns.

What is the age of the weapon? What might be termed a blanket defence is offered by section 58(2) of the 1968 Act if the firearm is an antique, kept as a curiosity or ornament. Although offensive weapons must be 100 years old to qualify as antiques, there is no statutory definition of an antique firearm and guns far less than 100 years old have benefited from antique status. Once there is some evidence that a firearm might be an antique, such as an expert report, the burden then shifts to the prosecution to prove that it is not.

Prosecution examiners frequently neglect to consider the issue of antiquity, particularly if the firearm is capable of discharging currently available ammunition, or is of a ‘modern’ design, but such factors do not feature in statute, and dismissal of the possibility that a firearm might be an antique may reflect the way the examiner would wish the law to be, rather than the way it is.

Adherence to these principles is perhaps changing, but solicitors should ensure that the expert they instruct has been consistent in his approach.

In summary, no-one is perfect and prosecution experts, whether employed by the police or by other forensic providers can get it wrong, or may apply what some might consider inappropriate principles. A robust expert instructed by the defence such as David Dyson will critically assess every aspect of the prosecution evidence.


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