Firearms – Court of Appeal Maintains Tough Sentencing Approach

In a recent case, the Court of Appeal dealt with an appeal by the Attorney General against a sentence of 30 months imprisonment imposed following a guilty plea to various firearms offences.

The basis of plea, accepted in full by the prosecution read:

“[that] he converted weapons as a hobby, the weapons were not distributed, and he had no connection with violence or organised crime. He had never sold or given away any of the altered firearms and had no intention of doing so.”

The officer in the case (a Detective Constable and his supervisor, a Detective Sergeant) agreed that the offender’s working area (the garden shed) had the hallmarks of a hobby rather than a professional operation. The tools he used were available from DIY shops and were neither specialist nor extensive; and there was no evidence or intelligence to suggest that the offender sold, offered for sale, loaned or hired the firearms to others. There was also no link between the offender and organised crime, and no link between the firearms and any outstanding crime.

The offender was aged 54 and in long-term employment. He had however been convicted previously of a relatively minor firearms offence.

The issue, in this case, was whether there were exceptional circumstances not to impose a sentence of at least five years imprisonment (the mandatory minimum term).

At the sentencing hearing the prosecution relied on the factors identified in R v Avis [1998] 2 Cr App R(S) 178. First, the nature of the weapon: the firearms had been converted and were potentially lethal; there were four prohibited firearms; and ammunition was available that could have been used in at least three to them. Second, use: it was accepted the firearms had not been used. Third, intention: it was accepted the offender’s intention was to possess the weapons himself as a hobby. Fourth, previous convictions: the offender had a recent relevant conviction and, on his own admission, knew that his conduct was illegal. It was further submitted that there was a risk to the public as the weapons could have fallen into the hands of criminals. However, no authorities relating to exceptional circumstances were drawn to the court’s attention.

The judge found that exceptional circumstances meant that ‘not ordinary’ but not ‘extraordinary’ in the sense of wholly remarkable. The ‘ordinary type of case usually involves a criminal background’, with guns either being used or made available to criminals. The instant case was ‘quite different’, involving possession and a hobby with a background of fascination with guns. No specialised tools were used to convert the firearms. There was no known link to criminal gangs and no attempt to sell the converted firearms. The offender was not ‘the ordinary type of firearms offender’.

The judge held that there were exceptional circumstances, although the case remained a serious one bearing in mind the factors set out in Avis. The weapons were genuine and there were relevant previous conviction and the firearms were not securely stored. If they had been stolen they would have found a ready market. The judge identified a starting point of 5 years’ imprisonment. However, taking into account exceptional circumstances that he found, the basis of plea accepted by the prosecution and credit for the offender’s guilty pleas the sentence was reduced to two-and-a-half years’ imprisonment on counts 1 to 4 and 18 months on the remaining counts.

The Court of Appeal made the following observations:

“It is unfortunate that, although the judge was referred to the case of Avis, he was not referred to two recent cases which might have assisted him in deciding whether to impose a mandatory minimum sentence. In Nancarrow [2019] 2 Cr App R(S) 4, this court set out at paragraph 19 a number of points which were relevant to sentencing where section 51A(2) applied. First, the purpose of a mandatory minimum is to act as a deterrent. Second, circumstances are exceptional if the imposition of a 5-year sentence would be arbitrary and disproportionate. Third, such circumstances must be truly exceptional to avoid undermining the intention of Parliament. Fourth, the court should take a holistic approach and consider whether the collective impact of all the relevant circumstances make the case exceptional. Fifth, the court should always have regard to the four questions set out in Avis: what sort of weapon it was? What use was made of it? With what intention did the offender possess it? What was the offender’s record? Sixth, the circumstances of the offender are important. It would be relevant, for example, if an offender were unfit to serve a 5-year sentence or if such a sentence might have a significantly adverse effect on his health. Seventh, each case is fact specific and limited assistance will be gained from referring the court to decisions in cases materially identical. Eighth, unless the judge is clearly wrong in identifying exceptional circumstances where they do not exist or clearly wrong in identifying exceptional circumstances where they do exist the court will not readily interfere.”

The Court held that the sentencing Judge had wrongly applied the law, stating that:

“The statutory purpose which underlies the statutory minimum is deterrence: to prevent such weapons coming into the hands of criminals who will deploy them in the course of committing the most serious crimes: murder, robbery and supplying Class A drugs in large quantities. Although his interest in them was a hobby, the offender well understood what he was doing constituted serious criminality. He understood the danger which the guns posed in the wrong hands and the lack of security in relation to their storage. As the judge noted, if a burglary had taken place, the guns had a ready purchaser in the criminal marketplace, resulting in extreme danger to the public.”

“Ultimately the test would be whether the imposition of the minimum sentence would lead to a sentence that is arbitrary or disproportionate. However, the answer to that question must be considered in the light of the clear statutory intent that the offences to which section 51A apply must be met with strong deterrent sentences. This will mean that in some cases the sentence will be a harsh sentence and may appear particularly so where the offender has pleaded guilty.”

The sentence of 30 months was quashed, and a sentence of 5 years imprisonment substituted.

This case is another stark reminder that firearms cases almost always attract severe deterrent sentences, and even in cases where a Judge acts more mercifully, the prosecution may seek to appeal the sentence.

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