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Disguised weapons – new prosecution guidance

disguised weapons
Torch and stun gun

We have previously posted articles about our clients who have been unfortunate enough to be charged with allegations of possession of disguised weapons that, on conviction, will attract a minimum 5 year sentence.  This is often a surprise to the client, and we have had to work particularly hard to avoid an immediate prison sentence.

Examples involving disguised weapons can be found here and here.

New guidance has been issued by the prosecution as to when it is appropriate to charge the offence that attracts the minimum 5 year sentence.

It had been hoped that this change would have assisted those found in possession of a combination torch and stun gun.  Unfortunately, this is not the case.  The charging standards have only been relaxed where, for example, as stun gun has been disguised as another weapon.

The charging guidance now contains the following:

Note on Disguised Weapons

“Firearms which are disguised as another object (such as stun guns disguised as torches or mobile phones or other innocent objects) are prohibited weapons contrary to section 5(1)(b) and 5(1A)(a).  The latter attracts a mandatory minimum sentence; the former does not.

Where a stun gun is disguised as another weapon, prosecutors should always charge section 5(1)(b) unless any significant aggravating feature, as identified by R v Avis [1988] 1 Cr App R 420 CA is present.  The factors in Avis are:

• What (if any) use has been made of the firearm?
• With what intention (if any) did the defendant possess or use the firearm?
• What is the defendant’s record?

Unless a significant aggravating feature is present, the mandatory minimum sentence may be arbitrary and disproportionate.  Where section 5(1)(b) is charged, the Court may still pass a significant sentence.  However, it can exercise its discretion at sentence where there is an absence of aggravating features which do not merit charging an offence attracting a mandatory minimum sentence.

[Additionally] Prosecutors should note that where a stun gun is disguised as another weapon, section 5(1)(b) should be charged, absent 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’”.

“…The fact that the disguised stun gun in question is of limited power is not a reason for charging the lesser offence – R v McCarthy [2013] EWCA Crim. 2500.”

Note on dual purpose objects

disguised weaponsProsecutors should be alert to the 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 an object contains a firearm, then it is a disguised weapon and should be charged as such, (section 5(1A) Firearms Act 1968). Failure to do so would deprive the judge of all available sentencing options, including the minimum sentence.

Prosecutors should liaise with the officer in connection with a defendant’s basis of plea in all cases involving objects described as ‘dual purpose’. 

The full CPS guidance in relation to firearms can be found here.

Instruct a criminal law specialist

disguised weaponsThe charging standards make clear that there can be flexibility in whether a charge attracting a minimum sentence is brought by the prosecution.  Experience of negotiating on offence and plea is an important skill that we are able to bring to your case.

As a result it is best to take advantage of our free and independent legal advice in police interview as it is easier for us to make a difference in your case if instructed at an early stage.

You can read more about the benefits of early legal advice here.

Even in cases where you haven’t instructed us in the police station, we will still be happy to receive your instructions after interview or if the case proceeds to court.

Again, legal aid is likely to be available for your court case and we will advise you fully about all of your funding options.

You can read more about legal aid here.

We provide nationwide legal advice and representation from our offices across the East Midlands.

disguised weapons
VHS Fletchers offices

You can find your most convenient office here.

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News

Minimum sentence for disguised firearm avoided

Nottingham solicitor advocate Jon Hullis recently represented a client who was facing a prison sentence for a minimum of 5 years for possession of a disguised firearm.

It was alleged that he was in possession of a stun gun or taser disguised as a torch.  In the event he ended up with a lesser charge and a much better result following his guilty plea.

In Possession of a Stun Gun

Jon’s client was an HGV driver employed by a Polish haulage company.  He made regular journeys through the channel tunnel.

Whilst he was at a service station on the M1  his vehicle was subject to a routine check by the police and DVSA officers. Although his tachograph and other driver’s records were in order the police found an item in his cab.  This had the appearance of a torch but the police soon realised that as well as being a torch the item was a stun gun capable of delivering a shock of 8000 volts.

Free and independent legal advice

As a result our client was arrested.  Although he chose to seek free and independent legal advice at the police station he asked for the duty solicitor rather than VHS Fletchers.  As a result a different firm represented him in the police station.

In interview he answered questions and told the police that he had bought the item from a market stall in Poland for 20 zloty or approximately four pounds.  Our client admitted knowing that it was both a torch and a stun gun. He explained that he had it with him due to the threat he faced from people trying to hide in his lorry when he passed through Calais.

As he was  regularly frightened of being attacked so hoped that the stun gun would keep attackers away from him if need be.  It was kept inside his cab.  He had no intention of using it in this country as by the time he entered this country the danger would have passed.  He stated that as items such as this were so freely available in his home country he did not realise that it was illegal to have the item in the United Kingdom.

Disguised firearm charge carried a minimum five year sentence

Our client was charged with being in possession of a firearm disguised as another object. At the initial hearing in the Magistrates Court his case had to be sent to the Crown Court.  This was because the charge as it stood could only be dealt with at the Crown Court.

He had continued with the same firm of solicitors who had represented him in the police station.  When the case had been sent to the Crown Court that firm had told the court that the defendant would be pleading guilty to the charge as it was currently drafted.

As a result, he ran a very real risk of receiving a sentence of five years.  That sentence could only be avoided in exceptional circumstances.  The admissions made in interview that he knew the nature of the device and that he had it for protection were unhelpful in mitigating any such sentence.

Transfer of representation

Our client was not happy with advice that he had received in both the police station and then at the Magistrates’ Court.  The apparent inevitability of a guilty plea had been accepted and this fact had been communicated to the court.  It appeared that no consideration had been given to alternative and lesser charges.

As a result, the client made contact with us following a recommendation from a prominent member of the local Polish community

The Law on Stun Guns

Under Section 5 Firearms Act 1968 stun guns are classified as firearms.  They are always illegal to possess.  This is remains true even in a private place such as your home.  Possession of a stun gun alone can be punished by a prison sentence of up to ten years.

disguised firearm
A flashlight stun gun

The situation for any client is more serious where a stun gun is disguised as another object.  These are often mobile phones or torches.  In those cases the court must impose a sentence of at least five years in prison.  This remains the case even where someone has no previous convictions and pleads guilty at the earliest opportunity.  The usual rules as to a reduction in sentence for credit for a guilty plea does not apply.

A judge will only be able to impose a lesser sentence where there are “exceptional circumstances”.  The very wording indicates that such cases will be very rare.

In some cases it will take a close inspection to reveal that an item is in reality a stun gun.  In the case of this particular client the item had “50,000 KV” clearly printed on the body of the item.  The metal electrodes were also visible.  Although the item was also a working torch, there was nothing specifically done to conceal the fact that it was a stun gun.

Representations to the Prosecutor

After carefully considering the law and the circumstances of this case, Jon spoke with the prosecutor.  He made representations that this was not a stun gun disguised as a torch.  It was actually a stun gun that also had a torch function. Jon’s research had shown that this was argument was supported by reference to it being widely for sale across Europe as a stun gun.  It was used by both the police and military as a stun gun with a torch function so not a disguised firearm.

Jon was able to persuade the prosecutor of his view of the item.  As a result the prosecutor accepted a guilty plea to an offence possession of a stun gun.  The fact that it was no longer a disguised firearm meant that the judge would have greater flexibility on sentence.

Sentence

Understandably our client was desperate to be able to return to Poland.  He lived there with his wife who was pregnant with their first child. Jon mitigated on his behalf with the aim of securing the most lenient sentence possible to allow him to return home.

The Judge agreed that this was an unusual case because it was plain that our client did not realise it was an offence to possess this item.  He had no intention of using it in this country. He said this case should act as a warning to other drivers who may consider carrying these items.

In the event, however, our client received a two year conditional discharge. This is an order where no punishment is imposed. Providing our client commits no further offences during the period of the conditional discharge then this will be the end of the matter.  The conviction will be spent.

Our client was obviously immensely relieved with this outcome and was incredibly grateful for the advice and representation he received from Jon.  This was a particularly pleasing outcome bearing in mind where the likely sentence for the disguised firearm offence prior to VHS Fletchers becoming instructed solicitors.

Funding

Unfortunately, legal aid would not have been transferred in this case,  As a result, our client felt it necessary to fund our representation privately.  Where you have the benefit of legal aid it will usually be best to remain with that provider.  In this case, however, our client clearly felt that it was not.

Contact a criminal defence expert to prepare your case

If you require advice from an experienced criminal solicitor in Nottingham about a disguised firearm then please contact Jon on 0115 9599550.  Alternatively, we have similarly experienced solicitors across our offices in the east midlands.

Contact details can be found here.

Alternatively you can use the contact form below.

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News

Firearm Minimum Sentence Avoided

Nottingham based senior Crown Court litigator Laura Clarson worked with counsel Dean Kershaw of No 5 Chambers to avoid a firearm minimum sentence of five years.

The Allegation

Laura’s client was stopped in customs at Birmingham airport.  He had arrived from Turkey where he had been working for a period of a few months.   His luggage was searched and he was found to be in possession of 3 tasers or stun guns.  These were disguised as torches.

As a result he was charged with possession of three disguised firearm under Section 5(1A)(a) of the Firearms Act 1968.   This meant that he was liable for a minimum sentence of five years custody.  This sentence could only be avoided if ‘exceptional circumstances’ applied.

Our client maintained throughout that he bought them from a market in Istanbul believing them to be torches.  He intended to keep one and give the others as gifts. He did not appreciate they also operated as stun guns.  Click here to see the items:

Disguised Stun Gun

Laura gave the difficult advice to the client, that as he knew that he had the items he was guilty of the offence.  His lack of knowledge as to how the items operated did not provide a defence.  He sought a second opinion from another firm of solicitors – in their rush to be optimistic, and perhaps tell him what he wanted to hear, the advice was legally incorrect.

Exceptional Circumstances

firearm minimum sentence
Birmingham Crown COurt

At the first Crown Court hearing our client pleaded guilty but on the basis set out to the police in interview.  The case was adjourned for a hearing as to whether he could be sentenced on that basis.  Counsel provided continuity of representation, despite being involved in a trial at the time.

Evidence was given by the client and submissions were made by Counsel.  Having heard from our client, the Judge was able to sentence him on a basis favourable to him.  Exceptional circumstances were said to apply, and in combination with extensive mitigation the Judge was able to impose a free-standing suspended sentence rather than the firearm minimum sentence of five years.

Laura’s client was relieved, being able to keep his employment and a roof over his head!

Contact Laura

Sometimes we have to give you difficult advice.  Even when we do that, you can be confident that we will continue to fight for the best outcome possible in your case.  If you wish to discuss a case involving a firearm minimum sentence or any other case with Laura please telephone 0115 9599550 or email her here.

She will provide you with advice on every aspect of your case, from funding, through to evidence, and likely outcome so that you can make the best choices.