Matthew Yong v R

Where accessories to prohibited weapons have a ‘mixed use,’ in that they can be used with prohibited or non-prohibited weapons, then whether or not they are intended to be used with a prohibited weapon in the individual case will be central to liability. This is a jury question with an evidential burden on the defence.

On 14 January 2014 in the Crown Court at Peterborough the appellant pleaded guilty to possessing a firearm without a firearm certificate contrary to section 1(1)(a) of the Firearms Act 1968.

The firearm in question was two flash eliminators, alleged to be a component or part of a lethal or prohibited weapon as described by section 5(1) of the Act.

On the first day of the hearing, the parties invited the judge to rule on the following question:

"Is a licence required to hold a flash eliminator on its own without a prohibited weapon within the meaning of the Firearms Act section 57(1)(a) and without any proof of any intention to own such a prohibited weapon?"

The judge answered that question in the affirmative and the appellant as a result pleaded guilty.

On appeal, Mr Doherty (who was not trial counsel) submitted that the items defined in section 57 as component parts or accessories to a firearm can be placed into 3 groups:

(a) Items which are component parts or accessories to a firearm which cannot be used with any non-controlled item.

(b) Mixed use items, namely components and accessories which could be used with a controlled firearm but which have a legitimate use with non-controlled items.

(c) Components and accessories which are not controlled in any circumstances. For example, it is widely accepted that screws fall into this category.

The eliminators were argued to fall into category (b) on the above analysis.

The appellant argued that where an item in group (b) is not intended for use with a section 1 firearm they are not accessories to it and therefore do not require certification. It was submitted that on the evidence before the Crown Court there was insufficient evidence for a jury to have reached the conclusion that the flash eliminators required certification, had the case been left to them and had they been properly directed.

Held:

1 The judge ruled properly on the evidence and arguments before him when making his initial ruling. Trial counsel conceded when posing the question that the items recovered were solely for use with either a section 1 or section 5 firearm

2 Had the issue that these accessories were mixed-use items been raised at trial, the issue as to whether they were intended to be accessories to a section 1 or section 5 controlled weapon or a non-controlled item would have to have been determined as a matter of fact by a jury.

3 If the Crown has shown a prima facie case that an article is an accessory to a weapon requiring certification under section 1, then an evidential burden arises if the defence wishes to rely on the "mixed-use" exception provided by section 1(3) and the latter part of section 57.