Attorney-Generals Reference No 48 and 49 of 2010

Factual and Procedural Background

This opinion concerns an application by HM Attorney General seeking leave to refer sentences passed on two defendants for firearms offences under section 36 of the Criminal Justice Act 1988. The two young men, both in their 20s and of largely previous good character, pleaded guilty to conspiracy to possess and distribute prohibited firearms and ammunition, and conspiracy to convert items into firearms. The substantive offences are possession of a prohibited weapon contrary to section 5(1) of the Firearms Act 1968 and conversion of firearms contrary to section 4(3) of the same Act.

In December 2009, the defendants purchased four starting pistols and blank firing ammunition with the intent to convert them into working handguns by drilling out barrel blockages and respraying the pistols. They also attempted to convert blank ammunition by inserting bullets. The weapons, when recovered by police intervention, were not yet operational. One defendant was in debt to a cannabis dealer and was offered payment for supplying converted weapons, while the other provided the shed used for conversion. Both defendants admitted their involvement, and the judge differentiated between their roles, though the court considered their involvement similar.

Both defendants had minimal or no previous convictions, had settled personal lives or aspirations, and made frank admissions. The operation was amateurish, lacking proper equipment or a production line. The intended purpose was to produce lethal weapons likely for use in serious violent crime, particularly linked to the drug trade.

Legal Issues Presented

1. Whether the statutory minimum sentence under section 51A of the Firearms Act 1968, which applies to possession of prohibited weapons, influences sentencing for conspiracy to possess or convert such weapons.
2. Whether the sentences imposed on the defendants were unduly lenient given the public risk posed by their offences.
3. The extent to which the personal circumstances of the defendants should mitigate the sentence in light of the gravity of the offences.

Arguments of the Parties

Attorney General's Arguments

• Section 51A of the Firearms Act 1968, which mandates a minimum five-year sentence for possession of prohibited weapons, should be considered as an important indication of Parliament’s intent in sentencing conspiracy offences, even though it does not directly apply to conspiracy.
• The sentences passed were too lenient given the serious public protection concerns associated with firearms offences.

Court's Position

• Section 51A does not apply directly to conspiracy or attempt offences, and the court declined to extend its mandatory minimum sentence to such offences.
• Nevertheless, the public protection concerns underlying section 51A carry significant weight in sentencing decisions for offences of this nature.
• The personal circumstances of the defendants were relevant but did not outweigh the gravity and public risk of their conduct.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the statutory framework, noting that the maximum sentence for possession of a prohibited weapon is ten years, with a statutory minimum of five years under section 51A of the Firearms Act 1968. However, section 51A does not apply directly to conspiracy offences, and the court declined to impose its mandatory minimum on the conspiracy charges before it.

The court acknowledged the defendants’ previous good character and personal circumstances but found a significant mismatch between these mitigating factors and the seriousness of the offence, which involved an attempt to create working handguns intended for criminal use. The court noted the amateurish nature of the operation and the defendants’ frank admissions, which warranted some leniency.

Drawing on the precedent in Attorney General's Reference No 43 of 2009, the court emphasized that public protection is paramount in firearms cases, and sentences must reflect the serious risk posed by the availability of guns to criminals, especially in the context of the drug trade. Despite this, the court found the sentences imposed—30 months and 25 months after credit for guilty pleas—were lenient but not so unduly lenient as to require increase at this stage.

Holding and Implications

The court granted leave to refer the sentences but ultimately decided not to increase the sentences imposed on the defendants. It held that while the sentences were lenient and the public risk significant, the balance between public protection and the defendants’ personal circumstances did not warrant an increase after the sentences were well underway.

The direct effect is that the sentences of 30 months and 25 months remain in place. The court did not set new precedent regarding the application of section 51A to conspiracy offences but clarified that public protection considerations reflected in that section heavily influence sentencing in related cases.