Hewlett v REGINA

Factual and Procedural Background

On 27 May 2015, the Appellant was convicted in the Crown Court at The City of possession of a prohibited firearm contrary to section 5(1)(aba) of the Firearms Act 1968 and sentenced to five years imprisonment. The Appellant, a director of Company A specializing in the sale of decommissioned weapons for the film and television industry, had a warrant executed at his home and business addresses on 14 August 2014. Authorities seized a replica WWII German MP40 sub-machine gun with a barrel less than 30 centimetres long, manufactured originally as a cap-firing replica by Company B in Japan, alongside other weapons not in contravention of firearms legislation.

The Crown alleged the replica had been converted to fire live ammunition, constituting a firearm under section 57 of the Firearms Act 1968, due to modifications including removal of a steel bolt disabling the firing mechanism. The Appellant contended the replica was incapable of firing live rounds as seized and was an imitation firearm readily convertible into a firearm, invoking the defence under the Firearms Act 1982 section 1(5) that he neither knew nor had reason to suspect the replica’s convertibility. The trial proceeded on these factual and legal disputes, with expert evidence presented by both sides.

The Appellant appeals against conviction with leave of a single judge, challenging the trial judge's rulings on the applicability of the 1982 Act and the directions given to the jury.

Legal Issues Presented

1. Whether the replica firearm as seized constituted a "firearm" under section 57(1) of the Firearms Act 1968 or was instead an "imitation firearm" within the meaning of section 57(4) and subject to the Firearms Act 1982.
2. Whether the trial judge erred in ruling that the Firearms Act 1982 did not apply to the case.
3. Whether the trial judge improperly withdrew from the jury the factual issue of the replica’s classification as a firearm or imitation firearm, potentially depriving the Appellant of the statutory defence under section 1(5) of the 1982 Act.
4. Whether the trial judge's directions to the jury were unbalanced, reflecting judicial bias towards the Crown’s position.
5. Whether the judge’s response to the jury’s question during deliberations caused confusion or misdirection.

Arguments of the Parties

Appellant's Arguments

• The replica was an imitation firearm incapable of firing live rounds as seized and readily convertible into a firearm, thus falling within the scope of the Firearms Act 1982.
• The trial judge wrongly ruled the 1982 Act inapplicable and withdrew the factual issue of convertibility from the jury, preventing the Appellant from relying on the statutory defence that he neither knew nor suspected the replica’s convertibility.
• The judge’s directions to the jury were biased in favor of the Crown’s case, undermining the Appellant’s right to a fair trial.
• The judge’s handling of the jury’s question during deliberations was potentially confusing and prejudicial.
• Relied on precedent from R v Bewley to support the argument that the 1982 Act modifies the interpretation of “firearm” in the 1968 Act and protects defendants from conviction where the item is readily convertible but not yet converted.

Crown's Arguments

• The replica had been converted into a lethal barrelled weapon capable of discharging live ammunition, thus constituting a firearm under section 57(1) of the 1968 Act.
• The Firearms Act 1982 applies only to imitation firearms, not to actual firearms; therefore, the 1982 Act was irrelevant once the item was converted.
• The removable steel bolt was analogous to a safety catch temporarily disabling the firearm, not a conversion requiring the 1982 Act’s protections.
• The question of whether the item was a firearm or imitation firearm was properly a factual issue for the jury, and the judge correctly left it to them.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the statutory definitions in the Firearms Acts 1968 and 1982, focusing on whether the replica was a firearm or an imitation firearm readily convertible into a firearm. It noted that the 1982 Act does not create offences but extends the 1968 Act to cover imitation firearms that are readily convertible without special skill or tools.

The court reviewed expert evidence: the Crown's expert testified the replica was converted into a firearm capable of firing live rounds with only minor removal of a disabling bolt, while the defence expert opined it was an imitation firearm requiring removal of the bolt to become a firearm.

The court considered the precedent in R v Bewley, which qualified earlier decisions by emphasizing that only items convertible without special skill or tools fall within the 1982 Act’s scope. The court observed that the trial judge correctly left the factual question of classification to the jury, providing balanced directions that highlighted the competing expert evidence and legal contentions.

The court rejected the Appellant’s contention that the judge improperly withdrew the issue from the jury or pre-judged the matter, noting that the judge’s comments in chambers did not translate into an improper direction to the jury. The judge also appropriately addressed the jury’s request for statutory definitions during deliberations.

Ultimately, the court concluded that the jury was properly instructed and that the Appellant was not deprived of any statutory defence under section 1(5) of the 1982 Act. The issue was rightly a matter for the jury’s determination based on evidence.

Holding and Implications

The court DISMISSED the appeal.

The direct effect of this decision is to uphold the conviction of the Appellant for possession of a prohibited firearm under the Firearms Act 1968. The court affirmed that the classification of an item as a firearm or imitation firearm, and the applicability of the Firearms Act 1982 defence, are questions of fact for the jury. No new legal precedent was established beyond the application and clarification of existing statutory provisions and case law.