Dual-Purpose Firearms and the Definition of 'Disguise' Under the Firearms Act 1968: Commentary on LORD ADVOCATES REFERENCE No.1 of 2020

Introduction

The case of LORD ADVOCATES REFERENCE No.1 of 2020 ([2020] HCJAC 25) addressed a pivotal issue in the interpretation of the Firearms Act 1968, specifically focusing on the definition of a firearm being "disguised" as another object under section 5(1A)(a). The Scottish High Court of Justiciary deliberated on whether a dual-purpose device, which functions both as a stun gun and a torch, constituted a "disguised firearm." The parties involved included the Lord Advocate, representing the Crown, and the accused, who faced charges of possessing a firearm without the requisite certificate and possessing a disguised firearm. This commentary delves into the intricacies of the judgment, exploring its implications for future legal interpretations and applications within firearm-related offenses.

Summary of the Judgment

In this case, the accused was charged under two sections of the Firearms Act 1968: section 1(1)(a) for possessing a stun gun without a firearms certificate, and section 5(1A)(a) for possessing a firearm disguised as another object—in this instance, a stun gun disguised as a torch. The primary contention revolved around whether the dual functionality of the device negated its status as a "disguised" firearm. During the trial, the jury acquitted the accused of the disguise charge, leading the Lord Advocate to challenge the trial judge's instructions.

The High Court scrutinized the trial judge's directions, which had suggested a binary choice: either the device was disguised, warranting conviction under section 5, or it was a dual-purpose item, necessitating acquittal on that charge. The Court of Criminal Appeal (HCA) found that this approach was erroneous. It clarified that the mere existence of dual functions does not inherently negate the element of disguise as defined by the law. The judgment emphasized that whether a firearm is disguised should be determined based on whether its appearance conceals its true nature as a firearm, regardless of any additional legitimate functions it may serve.

Analysis

Precedents Cited

The judgment references the unreported case of McQuillan v HMA (HCA/2019/000564/XC), where the sheriff defined a disguised firearm as an item that has been altered in appearance to conceal its true identity or character. In that case, the sheriff guided the jury to consider whether the item's appearance was intentionally modified to prevent recognition as a firearm. This precedent was upheld in the current judgment, reinforcing the principle that the intention to conceal is central to the definition of a disguise, irrespective of the item's dual functionality.

Legal Reasoning

The Court of Criminal Appeal undertook a detailed examination of the trial judge's instructions to the jury. It concluded that the trial judge had improperly directed the jury to view the device solely through the lens of its dual-purpose nature, thereby excluding the possibility that the dual functions could coexist with a disguised appearance. The Court clarified that the presence of multiple functions does not inherently negate the element of disguise. Instead, the jury must assess whether the item's appearance was altered with the specific intent to conceal its nature as a firearm.

The Court emphasized that "disguise" involves an element of deception—altering the item's appearance to mislead an ordinary observer about its true purpose. Whether the item serves additional legitimate functions (such as lighting) does not automatically negate its status as a disguise. Therefore, even if a firearm operates as another object, if its appearance is crafted to conceal its true nature, it falls within the purview of section 5(1A)(a).

Impact

This judgment sets a significant precedent in the interpretation of what constitutes a "disguised firearm" under UK law. By affirming that dual-purpose functionality does not preclude an item from being considered disguised, the Court provides clearer guidance for both prosecutors and defense attorneys in future cases involving firearm disguises. It underscores the necessity for juries to focus on the intent behind the item's appearance rather than being swayed by its legitimate functions. This clarification enhances the enforceability of firearm regulations, ensuring that individuals cannot circumvent the law by merely incorporating additional, lawful functionalities into firearm devices.

Moreover, the judgment aids in delineating the boundaries between lawful and unlawful modifications to firearms. Law enforcement agencies can utilize this clarification to better identify and prosecute disguised firearms, thereby contributing to public safety. The decision also serves as a deterrent against the creation and possession of firearms that are purposefully altered in appearance to evade detection.

Complex Concepts Simplified

Understanding the legal nuances of "disguise" within firearm legislation can be challenging. This judgment clarifies several key concepts:

Disguised Firearm: An item qualifies as a disguised firearm if its appearance has been intentionally altered to conceal its true nature as a firearm, thereby misleading an ordinary person about its purpose.
Dual-Purpose Item: A device that serves two legitimate functions (e.g., torch and stun gun) does not automatically negate its status as a disguised firearm. The critical factor is whether the appearance is altered with the intent to conceal the firearm function.
Objective Assessment: Determining whether an item is disguised involves an objective evaluation of its appearance and the intention behind its design, rather than the subjective intentions of the possessor.
Jury's Role: The jury must assess whether the item's modified appearance was meant to deceive or conceal its firearm function, considering all factual circumstances without being constrained by the presence of additional legitimate functionalities.

Conclusion

The judgment in LORD ADVOCATES REFERENCE No.1 of 2020 provides a pivotal interpretation of the Firearms Act 1968, particularly concerning what constitutes a "disguised firearm." By establishing that dual-purpose functionality does not inherently exclude an item from being considered disguised, the Court has clarified the legal landscape surrounding firearm appearances. This decision reinforces the importance of intent and appearance in assessing firearm disguises, ensuring that individuals cannot circumvent firearm regulations through the incorporation of multiple functions. The clarification benefits legal practitioners, law enforcement, and the judiciary by providing a more precise framework for identifying and prosecuting disguised firearms, thereby enhancing the effectiveness of firearm legislation in maintaining public safety.