When is an air weapon an imitation firearm?

05 October 2020

Not reviewed after the date of publication

Question: 

When is an air weapon an imitation firearm, and in what situation is it more appropriate to charge for possession of one over the other?

Answer:

Air Weapon

Section 1 of the Firearms Act creates offences in relation to possession of a 'firearm' without a certificate. Section 1(3)(b) provides an exception for an 'air weapon' and states:

'an air weapon (that is to say, an air rifle, air gun or air pistol which does not fall within section 5(1) and which is not of a type declared by rules made by the Secretary of State under section 53 of this Act to be specially dangerous).'

Rules 2 and 3 of the Firearms (Dangerous Air Weapons) Rules 1969 specify what constitutes a 'dangerous air weapon'. Such a weapon is deemed a section 1 firearm, therefore a certificate is required to possess one.

Imitation Firearm

The definition of 'imitation firearm' is provided in section 57(4) of the Firearms Act 1968:

'imitation firearm means any thing which has the appearance of being a firearm (other than such a weapon as is mentioned in section 5(1)(b) (weapon designed or adapted to discharge any noxious liquid gas or other thing) of this Act) whether or not it is capable of discharging any shot, bullet or other missile'

For an air weapon to be classed as an imitation firearm, it will need to fall under this definition. D48 on PNLD explores the meaning of imitation firearm in more detail. Possible offences to consider for possession of an imitation firearm are:

Section 16A of the Firearms Act 1968 - possess an imitation firearm with intent to cause fear of violence.

Section 19 of the Firearms Act 1968 - possess an imitation firearm in a public place .

Section 19 of the Firearms Act 1968 provides:

'A person commits an offence if, without lawful authority or reasonable excuse (the proof whereof lies on him) he has with him in a public place -

(a) a loaded shot gun,
(b) an air weapon (whether loaded or not),
(c) any other firearm (whether loaded or not) together with ammunition suitable for use in that firearm, or
(d) an imitation firearm.'

It may be that an overlap could occur and we believe that the CPS would choose to charge with that which reflects the overall gravity and nature of the offence. Prosecutors should select charges that reflect the seriousness and extent of the offending behaviour and give the court adequate sentencing powers.

We would advise officers to liaise with CPS at the earliest opportunity, providing them with the full facts of the case in order to seek guidance.

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