High Court rules dual-purpose items can be considered disguised firearms

The High Court of Justiciary has ruled that the incorporation of a firearm into a dual-purpose object does not mean that it cannot be regarded as “disguised as another object” under section 5(1A)(a) of the Firearms Act 1968.

The first Lord Advocate’s Reference of 2020 related to a trial in which the accused was charged with possession of a firearm both without a certificate and disguised as another object. The accused admitted that he did not have the requisite authority but denied that the firearm was disguised.

The reference was considered by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Glennie and Lord Turnbull.

Looked like a torch

The disputed firearm was a device that operated as both a stun gun and a torch. The item had the appearance of a black torch with no indication that it had a stun function. If a switch at the base of the item was turned on and another three-position switch moved to the lowest position, depression of a button would operate the stun function. The device could not operate as both a stun gun and a torch at the same time.

At trial, the Advocate Depute said to the jury: “So if it looked like a torch to you then I ask you to find that it is a disguised stun gun”, with most submissions based on the appearance of the item.

The defence focused on the fact that the item had two operational functions, and suggested that they were a sensible combination of functions in countries where stun guns were legal. A forensic scientist who had given evidence during the trial accepted this point in cross-examination.

Counsel for the defence said to the jury: “If things are grouped together and have a sensible coherent point to be combined into one object that, I suggest, mitigates against it being a disguise because you can see why they’re together.”

The trial judge directed the jury that the word “disguise” should be given its ordinary meaning, involving an element of concealment, covertness or pretending. He went on to say that counsel for the defence had “correctly” invited them to take a common sense approach to the distinction between what is a disguise and what is a dual purpose item. The jury duly acquitted the accused of the charge under section 5(1A)(a) of the 1968 Act.

The reference challenged the direction given by the trial judge that they should acquit if they viewed the item as a dual purpose weapon. It also questioned the impact of being a dual purpose item on any attempt to disguise a firearm, how a jury should be directed on the meaning of “disguised”, and whether it was a defence to a charge of possessing a disguised firearm that the weapon was a dual purpose item.

Sensibility of functions neither here nor there

The opinion of the court was delivered by Lady Dorrian. Regarding whether the trial judge erred in his directions to the jury, she said: “It is abundantly clear that trial judge presented the case as one where the jury either concluded that the weapon was disguised, in which case they could convict; or they concluded that it was an item where two functions were reasonably combined, in which case they would have to acquit of the second charge. The trial judge did therefore direct the jury in the way suggested in the first reference question. In so directing the jury he fell into error.”

She continued: “It is not a defence to a charge of possessing a disguised firearm that the firearm is a ‘dual purpose item or weapon’, nor does the fact that a firearm possessing the appearance of another item functions also as that other item necessarily deprive its appearance of any element of disguise.”

On the interpretation of “disguised”, she said: “The normal meanings of the word ‘disguise’ are to be adopted, and the matter must be determined from the perspective of the ordinary person in the street. Would the ordinary observer appreciate that the item was a weapon, whatever other function it may be capable of performing?”

She continued: “Whether the combination of functions is ‘sensible’ or otherwise is neither here nor there. In any event, if one of the functions is an illegal one, it is difficult to see how any combination which includes that function can be described as ‘sensible’. A firearm presented as a mobile phone and capable of operating as such may nevertheless be within the category of a firearm disguised as something else. The same applies where the dual function is torch and firearm, or anything else.”

On how a jury should be directed on whether a firearm is disguised Lady Dorrian, citing the approach of the sheriff in the unreported case McQuillan v HM Advocate, said: “It might be suggested to the jury that they could usefully ask themselves questions along these lines: Does the item look to you like a firearm, specifically a [stun gun or other firearm as appropriate]? Does the item look to you like something else, eg a torch or mobile phone? Has it been made to look like another object to prevent, or to attempt to prevent, it from being recognised as a firearm?”

Accordingly, the question of whether a firearm incorporated into a dual purpose item could be considered “disguised as another object” was answered in the positive. Lady Dorrian noted: “The dual purpose of the item may, in an appropriate case, be among the many factors to be considered by the jury in reaching their decision on whether it is a firearm disguised as another object.”