Part 8: Firearms
Section 108: New offence of possessing firearm for supply etc
252.Subsections (2) and (3) amend section 5 of the Firearms Act 1968 (“the 1968 Act”), subsections (1) and (1A) of which makes it an offence to possess, purchase, acquire, manufacture, sell or transfer, without the authority of the Secretary of State, or Scottish Ministers in Scotland, firearms or ammunition of particular types (such as handguns, sub-machine guns and assault rifles). The offence attracts a maximum sentence of 10 years. Subsections (2) and (3) separate the existing section 5(1) and (1A) offences into two component parts. One component part covers simple possession, purchase or acquisition of an unauthorised firearm or ammunition, which will carry the existing maximum penalty of 10 years. The other component part covers the manufacture, sale or transfer, or purchasing or acquiring for sale or transfer of an unauthorised firearm or ammunition, which will carry a maximum penalty of life imprisonment (see new section 5(2A)(a), (b) and (d) of the 1968 Act inserted by subsection (3) of the section). In addition, new section 5(2A)(c) of the 1968 Act creates a new offence of possession for sale or transfer of an unauthorised firearm or ammunition, which will similarly carry a maximum penalty of life imprisonment (as provided for by the amendment to Part 1 of Schedule 6 to the 1968 Act made by subsection (8)).
253.Subsection (4) amends section 5(3) of the 1968 Act to define “authority” as meaning an authority given in writing by the Secretary of State in or as regards England and Wales or by the Scottish Ministers in or as regards Scotland.
254.Subsection (5) makes consequential amendments to section 5A of the 1968 Act, to delete the references to section 5(1A). This is necessary to reflect the changes that subsections (2) and (3) of that section make to section 5 of the 1968 Act. For example, the requirement to have an authority to sell or transfer will be located in section 5(2A), not section 5(1A).
255.Subsection (6) amends section 51A of the 1968 Act so that the offences in new section 5(2A) of that Act attract the mandatory minimum sentences provided for in that section, namely five years imprisonment in the case of an offender aged 18 years or over when he or she committed the offence (21 years or over in Scotland) or three years imprisonment in the case of an offender under 18 years (21 years in Scotland).
Section 109: Functions of Scottish Ministers under Firearms Acts
256.Section 5 of the 1968 Act deals with the prohibition of certain weapons and, on devolution, the Secretary of State’s functions under section 5 were transferred to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (SI 1999/1750 - made under section 63 of the Scotland Act 1998). The new firearms offence of possession for sale or transfer of any prohibited weapon is to be inserted as section 5(2A) of the 1968 Act by virtue of section 108. The offence is committed where the conduct is undertaken without authority, which is defined as “an authority given in writing by the Secretary of State (in or as regards England and Wales), or the Scottish Ministers (in or as regards Scotland)”. This is similar to the formula used for the existing firearms offences in section 5 but the functions which were transferred to the Scottish Ministers under section 5 upon devolution only catch those that could be exercised in relation to the offences that existed at that time. Additional functions under section 5 need to be transferred to Scottish Ministers in relation to the new offences and the effect of subsections (1) and (4) is to revoke the entry in the 1999 Order in respect of section 5 of the 1968 Act and transfer afresh all the Secretary of State’s functions under this section, as amended, to the Scottish Ministers in or as regards Scotland. The amendments in subsection (2) to section 5A of the 1968 Act (exemptions from requirement of authority under section 5) and the amendments in subsection (3) to the Firearms (Amendment) Act 1997 (in relation to those sections which provide special exemptions from prohibition of small firearms) are consequential upon the amendments to section 5 of the 1968 Act as, in each case, they refer back to the functions of Ministers under that section.
Section 110: Possession of firearms by persons previously convicted of crime
257.Subsection (1) amends section 21 of the 1968 Act. Section 21 prohibits persons who have previously served custodial sentences of between three months and three years from possessing firearms for a period of five years. Persons who have served custodial sentences of more than three years are permanently prohibited. Section 110 extends the definition of a prohibited person to include persons with suspended sentences of three months or more. The period of five years will begin on the second day after the date on which sentence has been passed. A suspended sentence can only be for a maximum of two years so the permanent prohibition will not apply. Subsection (3) makes a transitional provision that enables a person with a suspended sentence to continue to possess firearms for the remainder of the period of a firearms certificate that was valid immediately before subsection (1) comes into force.
258.Subsection (2) amends section 58(2) of the 1968 Act. Section 58(2) allows antique firearms to be possessed without a certificate as a “curiosity or ornament”. It ensures that persons prohibited from possessing firearms under section 21 will also be unable to possess antique firearms under section 58(2).
Section 111: Increased penalty for improper importation of firearms etc
259.Subsections (2) and (3) amend section 50 of the Customs and Excise Management Act 1979 (“the 1979 Act”). Section 50 of that Act makes it an offence to import prohibited goods. The importation of firearms is restricted under the Import of Goods (Control) Order 1954 (SI 1954/23), made under section 1 of the Import, Export and Customs Powers (Defence) Act 1939. This prohibits importation other than in accordance with a licence issued by the Department for Business, Innovation and Skills. The maximum penalty for an offence under section 50 is normally seven years, but where it relates to prohibited firearms and certain other specified goods (including counterfeit currency notes and coins) it is 10 years. The amendments to section 50 increase the maximum penalty for the unlawful importation of firearms prohibited under section 5 of the 1968 Act from 10 years to life imprisonment. Subsection (3) makes consequential amendments to section 50 in order to preserve the existing maximum penalty of 10 years for the improper importation of counterfeit currency notes and coins.
260.Subsections (4) and (5) make similar amendments to section 170 of the 1979 Act. Section 170 of that Act makes it an offence knowingly to acquire possession of goods or knowingly to be concerned in carrying, removing, depositing, harbouring, keeping or concealing goods where the importation of the goods is restricted or prohibited under any enactment, and there is an intention to evade the restriction or prohibition. It is also an offence to be knowingly concerned in the fraudulent evasion of the restriction or prohibition on the importation of such goods. It is usual practice to deal with smuggling of prohibited goods by charging an offence under section 170, even when the conduct falls within the specific importation offence in section 50. The effect of the amendments to section 170 is that the maximum penalty for the importation of firearms prohibited under section 5 of the 1968 Act will be increased from 10 years to life imprisonment.
261.Subsections (6) and (7) make similar amendments to section 68 of the 1979 Act. Section 68 of that Act makes it an offence for a person to be knowingly concerned in the exportation of any goods with the intent to evade the prohibition or restriction on their exportation. The effect of the amendments to section 68 is that the maximum penalty for exportation of firearms prohibited under section 5 of the 1968 Act will be increased from 10 years to life imprisonment.
Section 112: British Transport Police: Crown status under Firearms Act 1968
262.Subsection (1) amends section 54(3) of the 1968 Act, which identifies those persons deemed to be in the service of the Crown and for whom the provisions of the Act relating to the possession, purchase or acquisition of firearms are modified, to include a member of the British Transport Police Force or a person employed by the British Transport Police Authority who is under the direction and control of the Chief Constable of the British Transport Police Force. The effect of bringing British Transport Police officers and employees of the British Transport Police Authority under the control of the Chief Constable of British Transport Police within the definition of a Crown servant is that such officers and employees are no longer required to obtain certificates for firearms under the 1968 Act in connection with the exercise of their duties. Consequent on that amendment, subsection (2) repeals subsections (3A) and (3B) of section 54 which currently provide a limited modification to those provisions relating to weapons of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing.
