Lord Advocate’s Reference Number 1 of 2020 [2020] HCJAC 25

Section 5(1A)(a) of the Firearms Act 1968:- The accused proceeded to trial in relation to two contraventions of the Firearms Act 1968:- (charge 1) possession of a firearm without a firearms certificate, contrary to section 1(1)(a); and (charge 2) possession of a firearm disguised as another object, contrary to section 5(1A)(a). At the trial the accused accepted not having a firearms certificate in relation to the item concerned, which was a stun gun. The accused’s position at trial was that the device, which operated as a stun gun and a torch, was not disguised in that the item had a dual purpose and that the accused should not be convicted of the section 5 offence. The accused was subsequently acquitted of the section 5 charge and convicted of the section 1(1)(a) charge. The issue at the trial was whether the stun gun was “disguised as another object”. At the trial the Advocate depute had relied on the fact that the stun gun looked like a torch and, as such, it was disguised. On behalf of the accused it was submitted that the item had a sensible and coherent reason for having the combined functions in countries where stun guns were legal. In his charge to the jury the trial judge directed the jury that “…if it was, on view of the facts, a dual-purpose item, you’ll require to acquit on charge 2.” The trial judge directed the jury that they should approach the issue of whether the item was disguised on a common sense basis. The accused was acquitted of charge 2. A number of the directions given by the trial judge were challenged by this reference by the Lord Advocate and the following questions were asked:- (1) Did the trial judge err in directing the jury to acquit the accused of charge 2 - possessing a stun gun disguised as another object, namely a torch - if Crown Label 16 was, on their view of the facts, a dual purpose item or weapon?; (2) Is it a defence to a charge of possessing a disguised firearm that the firearm is a "dual purpose item or weapon"?; (3) Where a firearm has the appearance of another object, does the fact that it functions as that other object as well as a firearm deprive its appearance of any element of disguise?; (4) How should a jury be directed on the meaning of "disguised", in the context of Section 5(1A)(a) of the Firearms Act 1968 as amended?; and (5) What is the relevance, if any, of dual purpose in determining whether a firearm is disguised? It was submitted here on behalf of the Lord Advocate that that trial judge erred in directing the jury that if the object had a dual function it could not be disguised and if they concluded it had a dual purpose they ought to acquit. The first reference should be answered in the affirmative, the second and third questions should be answered in the negative, question 4 should be answered by directing the jury that the question of whether the firearm is “disguised as another object” is a matter of fact for them to determine and should be asked to consider are:- (i) does the object look like a firearm? (ii) does it look like another object? (iii) has it been made to look like another object to prevent, or to attempt to prevent, it from being recognised as a firearm? In relation to question 5 the fact that a firearm has a dual purpose does not mean that it cannot be regarded as “disguised as another object”. It was further submitted on behalf of the Lord Advocate that the approach taken in Morag McQuillan v HMA HCA/2019/000564/XC should be followed where the sheriff described disguise as meaning that something had been done to the appearance to deceive the viewer about the item’s true identity or character. On behalf of the accused it was submitted that it had not been suggested, either by the trial judge or defence counsel at trial, that the mere existence of the item being dual/multiple purpose had any impact on the question of disguise. It was submitted that the approach in McQuillan should be followed. Here the court noted that it appeared that the case had been presented by the defence on the basis that the item was either dual purpose or disguised. The court here considered that the trial judge in directing the jury in the manner he did, namely, that if the jury concluded that it was an item where two functions were reasonably combined, they would have to acquit of the second charge, amounted to a misdirection. The court stated that it is not a defence to a section 5(1A)(a) charge that the firearm is a "dual purpose item or weapon”. The offence requires:- “…a straightforward objective assessment of whether the item is presented in such a way as to conceal that amongst its functions is that of a firearm. Whether a firearm is “disguised” as another item is critically a question of fact for the jury to determine on all the facts of the case…”. The court stated that the normal meaning of the word “disguise” should be used, for example, would the ordinary observer appreciate that the item was a weapon, whatever other function it may be capable of performing and that disguise implies deception. The court made clear that the question to be asked is whether the item is presented in such a way as to disguise or conceal its function as a firearm. Appropriate directions to a jury would be:- (a) Does the item look to you like a firearm, specifically a [stun gun or other firearm as appropriate]?; (b) Does the item look to you like something else, eg a torch or mobile phone?; and (c) Has it been made to look like another object to prevent, or to attempt to prevent, it from being recognised as a firearm? The court answered the questions posed in the following:- 1-yes, 2-no, 3-no, 4-juries should be directed as per paras 23-27 of this opinion; and 5-the fact a firearm is a dual purpose item does not mean that it cannot be regarded as a firearm “disguised as another object” albeit that fact may be one of many factors which is relevant in a jury deciding whether it is a firearm disguised as another object.