S57(4) describes an “imitation firearm” as being “anything which has the appearance of being a firearm whether or not it is capable of discharging any shot, bullet or other missiles”.
Frank was charged with one offence of having an imitation firearm in a public place contrary to s19 of the Firearms Act 1968 ‘Carrying firearm in a public place’. After a contested Crown Court trial, the jury returned a unanimous not guilty verdict. Our client’s case was that the item in question did not amount to a firearm and also, even if it did, he had a reasonable excuse for being in possession of it.
Circumstances of the Offence:
Frank was travelling on a crowded London Midland train service from Euston to Birmingham. He was with three friends, one male two females. They were sitting at a table seat in their carriage. The prosecution was aware that the group were travelling to Birmingham Reparatory Theatre to an event organised by Monologue Slam UK. All four were involved in filming the event. It was also not in dispute that the defendant had recently been attending self-defense classes called KRAV MAGA a martial art in which you learn to defend yourself in many different scenarios including weapons defence, such as knife threats, gun threats and other potential street robbery situations; nor was it disputed that the defendant had purchased a rubber gun/training aid as well as a rubber knife in order to practice independently of the class in question.
During the train journey, Frank took the rubber gun and knife from his rucksack in order to demonstrate to his travelling companions the various disarming moves that he had learned. This demonstration lasted approximately 5 minutes during which time the Frank and his companions came into contact with the ticket inspector. At that time, Frank held the rubber gun openly in his hand. He was neither advised or cautioned in regard to his behaviour. Further, there were approximately 50-70 other passengers in the same carriage and no-one either complained or appeared in any way alarmed. After the demonstration, Frank left the rubber gun and knife on the table as his rucksack was already very full and as he was sat next to the window with insufficient room in which to manoeuvre he decided not to return the items to his rucksack until he stood up later in the journey.
During the demonstration, a fellow passenger who had been in the Army for five years noticed what he believed to be a replica or training aid hunting knife and saw that one of the males was demonstrating disarming moves with it. He did not at that stage notice the gun. Approximately 40 minutes later he got off the train and as he did so he saw the rubber gun. He also noticed the rucksack which contained a tripod and believed that the group may have been part of a film crew. He decided in his mind that he was 99% sure that the gun was not genuine. Nevertheless, he thought the most sensible thing was to contact the police and let them make enquiries if it was felt to be appropriate.
The informant told the police that he was 99% sure that the gun was not genuine, and he mentioned that he thought they may have been part of a film crew. A decision was taken by the police to deploy a firearms unit and the train was stopped at the next station. Three firearms officers made their way to the group. As they did, the officer at the back of the group saw a black handgun which he believed to be a Beretta 92F pistol on the table in front of one of the females. He shouted out “gun” and the group were commanded to put their hands to their head. At this stage, the gun ended up on the floor although there were different versions as to how that happened and whether it was deliberate or not. All three officers had their guns containing live ammunition trained on the female in the group. The officer gave evidence that he was very close to discharging his firearm. He then discovered that the gun, in fact, was made from rubber.
In an interview, the Frank stated that it was a training gun, it had no barrel or trigger. He explained that he had taken it with him to the theatre to demonstrate his martial art skills. He would carry it with him when he thought he would have an opportunity to practice with others. He accepted that it had been a mistake to take it out on the train with the benefit of hindsight but stressed that other passengers did not seem to be alarmed in any way.
The Legal Issues:
It was argued on behalf of the defendant that the item in question did not have the appearance of being a firearm and even if it did the circumstances afforded the defendant the statutory defence of reasonable excuse. In regard to a reasonable excuse, the onus of proof shifts to the defendant and the test is the balance of probability.
S57(1) of the Firearms Act 1968 defines a “firearm” as “a lethal barrelled weapon of any description for which any shot, bullet or another missile can be discharged….”
S57(4) describes an “imitation firearm” as being “anything which has the appearance of being a firearm whether or not it is capable of discharging any shot, bullet or other missiles”. The prosecution case was that the item in question clearly had the appearance of being a firearm and the jury themselves were able to examine the exhibit in question. It was not conceded that it was necessary to have evidence of any prosecution witnesses stating that they believed it to be a real gun as the jury were entitled to reach their own conclusion. In any event, the prosecution was able to state that the informant had sufficient concerns that it may have been a real gun that was the reason for contacting the police. Additionally, one of the police officers reached the clear conclusion that it was a genuine firearm and was even able to describe and then name the type of gun he believed it to be.
The defence argued that it was a matter for the jury. It was argued that they would want to take into account the following factors:-
- Between 57 fellow passengers on the train did not raise any concerns at any stage. Passengers were sat in front, behind and adjacent to the group in question.
- The train inspector shared a joke with the group at a time that the defendant had the rubber gun in his hand. The group were not given any advice.
- The informant told the police he was 99% certain that it was not a real gun.
- There was no replication of the trigger; the barrel is solid at the muzzle; it is all one colour; it is made from rubber and there was nothing functional about the gun whatsoever. It is clearly designed for use as a training aid.
- The defendant argued in any event that the circumstances amounted to a reasonable excuse which he had been able to prove to the requisite standard of proof. Reasonable excuse is not something that is defined in law although it may be argued that “an innocent motive for carrying an offensive weapon can sometimes amount to a reasonable excuse”. It was argued that a relevant authority was Houghton v Chief Constable of Greater Manchester. In this case, the defendant was returning from a fancy dress party and he was carrying a truncheon as part of police uniform.
- The defence argued that along with the factors mentioned above, the jury may also wish to consider the following:-
- It was not in dispute that the defendant was attending KRAV MAGA classes in London.
- The rubber gun and knife had been purchased from Amazon less than two weeks before the alleged defence. There was no warning attached to the purchase of the same. On the knife, the words training aid are clearly displayed.
- The defendant intended to practice at Birmingham Reparatory Theatre but during the course of a conversation, he got the items in question out of his bag to demonstrate moves for a short period of time. They were then left on the table for approximately 40 minutes.
- If his fellow passengers or indeed the train inspector had asked for the items to be put away this would have been done immediately.
- The defendant’s fellow passengers appeared to be satisfied that the defendant had an innocent motive for being in possession of the items in question.
- As stated, the jury returned a not guilty verdict.