Distinctions and definitions

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‘Firearms’ as in the pejorative phrase ‘the right to bear firearms’ is a generic name for guns of all descriptions.

No distinction is made in this phrase between firearms and shotguns. It is only UK law that distinguishes between those guns defined in Section 1 of the Firearms Act 1968, and smooth bore guns classified as shotguns in Section 2 of the same Act.

The definitions are, however, unfortunately rather more complicated than this and I have been surprised, disappointed even, at how few cases I have encountered on these aspects of the Firearms Acts while in practice in this niche area of law. I suspect the reason for this is that the picking over of these definitions has mainly been the task of criminal lawyers prosecuting and defending clients in the Crown Courts. Their concerns, under criminal jurisdiction, are different from those of people such as gamekeepers and firearms officers, who are involved in firearms certification.

Notwithstanding the smears of the anti-shooting brigade, gamekeepers and pest controllers are, as a profession, interested in keeping and working within the law and this is why I want to take a look at the law relating to air rifles. Although by no means a rifle for all seasons, the air rifle, particularly one that is capable of delivering a pellet with a muzzle energy exceeding 12ft/lb, is a useful tool in the professional’s armoury. If readers doubt this they might refer to the 10 December 2012 edition of The Shooting Show.

There is footage in this of a feral pigeon cull in Essex. The three air gunners involved in the cull are shown using the airgun to lethal effect on pigeon after pigeon within the confines of a large, high agricultural building. The job that they and the rifle do there is awesome!

Air gun users need to be very careful indeed to ensure they are not taking possession of a ‘specially dangerous’ air rifle or gun for which a Section 1 Firearm Certificate is required. This is particularly true when the rifle or gun is being sourced privately. In these circumstances, it is possible the capability may always have exceeded 12ft/lb or may have been adapted to do so.

Air rifle pellets are cheap, easy to source, and less subject to ricochet danger than cartridge ammunition

Air rifle pellets are cheap, easy to source, and less subject to ricochet danger than cartridge ammunition

The nightmare here for the genuine buyer is that neither the inherent capability or the enhanced performance, as the case may be, may be apparent or recorded (as it should be) on the transferor’s Firearms Certificate. An air rifle of or under the 12ft/lb limit may come to be owned or possessed by a person without a Firearms Certificate.

It’s worth adding here by way of warning that it is not possible to ascertain the power of an air rifle by firing it, unless a chronograph is deployed to measure the muzzle velocity. An R.F.D. can undertake this test and supply a certificate with the results. This could be very useful if the police were to check the power of the air rifle and find it exceeded the limit. In this scenario there could be a risk of prosecution for being in possession of a Section 1 Firearm which, in the event of conviction, carries a maximum sentence of an eye-watering term of five years’ imprisonment.

Imprisonment is encouraged for this offence under what is known as ‘sentencing guidelines,’ a copy of which all Crown Court judges will keep on their bench, and any such custodial sentence would obviously be disastrous for a gamekeeper. The R.F.D’s certificate (which will need updating from time to time in case of an unnoticed increase in the power of the relevant air rifle) would likely avoid this dire prospect, thus sparing the gamekeeper both a criminal trial and a possible sentence of imprisonment.

Returning now to the question of ownership, I would mention that there are two exceptions to this. First, a ‘prohibited person’ may not be in possession of any firearm, including an air rifle. For a person to be prohibited he must have been sentenced to a term of imprisonment. A person sentenced to between three months and three years is a prohibited person for five years from the date of his release. A person sentenced to more than three years is a prohibited person for life. In both cases, the prohibited person may apply to his local Crown Court for the removal of the prohibition. The prohibition extends to all air weapons regardless of whether or not they are classed as ‘specially dangerous.’

The second exception relates to young persons. Young persons under the age of 18 years are subject to fiendishly complicated firearms rules, which I do not have space to deal with here. Suffice perhaps to say, these rules are not likely to be relevant to the circumstances mentioned above in which the gamekeeper is acquiring an air rifle, because the rules are framed to prevent the acquisition of air rifles by young persons rather than the sale or other disposal of an air rifle by them.

A gamekeeper or pest controller with a Firearms Certificate, and there are few without one, should of course have no difficulty in adding a Section 1 air rifle to his tool kit. The necessary test will be applied by his firearms department and can be demonstrated by all gamekeepers. Certain branches of vermin and pest control, such as shooting feral pigeons or rats inside or in the vicinity of agricultural buildings, involve risks that the most cursory of risk assessments will flag up and point to the use of high powered air rifles as preferable to other methods on health and safety grounds.

If you’re in any doubt, you can check the certificate guidelines with your police service

If you’re in any doubt, you can check the certificate guidelines with your police service

Such air rifles have been described by the Home Office as ‘specially dangerous’ and classified as Part 1 firearms required to be held under a Firearms Certificate. Of course though they can be dangerous and even lethal, as one or two tragic incidents have shown, it is ironic that there is so much furore surrounding these when most Section 1 firearms are so much more potent.

The truth is that most Section 1 firearms applied for, owned, and used by gamekeepers are rifles designed to shoot small vermin, rabbits, foxes and deer. In the majority of cases these come in a box or off the shelf of the gun shop and the buyer knows precisely what he is getting in legal and technical terms. They, as prospective buyers, will all have had to apply to their firearms department for a slot for a specific calibre before acquiring a rifle, and they will be restricted to acquisitions authorised by their certificates.

In law, however, rifles (other than low powered air rifles) purchased in this way are caught by Section 1 of the 1968 Firearms Act by way of exception in that they are not shotguns. Shotguns are referred to in the statute as ‘smooth bore guns,’ which have barrels no less than 24 inches and either have no magazine or a non-detachable magazine incapable of holding more than two cartridges.

So there you have a legal eagle’s eye view of air rifles as firearms. If, before starting to read this, you thought you knew what a firearm was I suspect you will now likely be thinking what, in legal terms, a firearm is not. If that’s the case, you are thinking on the right lines.

David Barrington Barnes

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Posted in Countryside Law, Features

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