The Scottish Government

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Dates Issued: 19 January 2004 Topic: Firearms

Implementation: 20 January 2004

Impact:

Contact(s) for more information: Sharon Macpherson (Tel: 0131 244 2367)
(At the above address)

Dear Colleague

Purpose of the circular

1. To provide information about the provisions of the firearms provisions contained in the Anti-social Behaviour Act 2003, which received Royal Assent on 20 November 2003. It gives details of the arrangements for bringing the provisions into effect and offers advice and guidance on some of the issues raised.

Action

2. Recipients of this circular are asked to make it available to their operational colleagues immediately upon receipt to take forward the actions required at paragraph 19.

Background

3. For a number of years there has been a steady rise in the misuse of air weapons and imitation firearms. Much of this is criminal damage and nuisance, often involving young people, but it also includes people who carry imitation firearms in order to intimidate others. The firearms provisions in the Anti-social Behaviour Act are intended to tackle these problems. They also deal with a specific problem concerning air weapons that use a self-contained gas cartridge system, which are particularly vulnerable to conversion to fire live ammunition and have become popular with criminals.

Section 37: Possession of air weapon or imitation firearm in public place

4. This section will come into effect on 20 January 2004. It adds to the list of firearms covered by the offence in section 19 of the Firearms Act 1968 (the "1968 Act") of carrying a firearm in a public place without lawful authority or reasonable excuse. That offence currently applies to loaded shotguns, loaded air weapons or any other firearm (whether loaded or not) together with its ammunition. Subsection 1 of section 37 adds to this unloaded air weapons and imitation firearms.

5. An imitation firearm is already defined in section 57(4) of the 1968 Act and covers anything which has the appearance of being a firearm whether or not it is capable of discharging a shot, bullet or other missile.

6. A public place is also defined in section 57(4) of the 1968 Act. It includes any road and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise.

7. There is no statutory definition of a reasonable excuse. This will depend on the facts and circumstances prevailing at the time. However, it should be borne in mind that the intention of the offence is to protect the public from the misuse of firearms and there is no intention of preventing legitimate activities such as actors using imitations for film or theatrical work or historical re-enactment.

Section 38: Air weapons - age limits

8. This section also comes into effect on 20 January 2004. It makes a number of amendments to sections 22, 23 and 24 of the 1968 Act in order to change the age at which a young person may have an air weapon and to tighten up on the supervision requirements.

9 Subsection 2 raises from 14 to 17 the age limit under section 22(4) of the 1968 Act for a young person to have with him an air weapon or ammunition for an air weapon. This means that no-one under 17 will be able to have with them an air weapon at any time unless supervised by someone who is aged at least 21 or as part of an approved target shooting club or shooting gallery. The redundant section 22(5) is omitted.

10. Subsection 3 adds to section 23 of the 1968 Act a new exception to the section 22(4) offence. No offence will be committed under that section if a young person aged 14 to 16 inclusive is on private premises and has the consent of the occupier to have an air weapon with him. However, it has been made an offence for anyone benefiting from this exception to fire any missile beyond the premises. Subsection 5 sets the maximum penalty for this offence at a level 3 fine (currently £1,000).

11. Subsection 4 raises from 14 to 17 the age limit in section 24(4) of the 1968 Act. It therefore becomes an offence to make a gift of an air weapon, or ammunition for it, to a person under 17 or to part with possession of an air weapon or ammunition to a person under 17, unless the young person benefits from an exception under section 23 of the 1968 Act.

Section 39: Prohibition of certain air weapons

12. This section contains a ban on air weapons that use a self-contained gas cartridge system. Subsection 3 adds to section 5(1) of the 1968 Act "any air rifle, air gun or air pistol that uses, or is designed or adapted for use with, a self-contained gas cartridge system" ("SCGC"). SCGC weapons are often known as "Brococks" after the main UK importer of the weapons (although it must be remembered that not all weapons manufactured or sold by Brocock Limited are SCGC weapons). Weapons that use a CO2 bulb system are not affected because CO2 bulbs do not contain a projectile and are not therefore self-contained. The effect of adding SCGC weapons to section 5(1) is to make them prohibited weapons which cannot be possessed, purchased, acquired, manufactured, sold or transferred without the authority of the Scottish Ministers. With the exception of the offence of possessing an SCGC weapon, section 39 will come into effect on 20 January 2004.

13. The offence of possession is being brought into effect separately in order to cater for subsection 4, which makes provision for existing owners to keep and continue to use their weapons, provided they have them entered onto a firearm certificate. Existing owners are those people who possess a SCGC weapon on 20 January 2004. They will not require the authority of the Scottish Ministers to continue to possess their weapon and by virtue of subsection 4 will not need to show good reason when applying to the police for a firearm certificate. However, chief constables will still need to satisfy themselves that applicants are fit to be entrusted with the gun, are not a prohibited person, and will not represent a danger to public safety or to the peace. Subsection 4 also removes good reason considerations when renewing, revoking or partially revoking a certificate for a SCGC weapon.

14. Applicants will be required to put in place appropriate security measures to prevent unauthorised access to their weapon. The level of security required will be the same as for section 1 weapons held on a firearm certificate, as set out in Chapter 19 of Firearms Law: Guidance to the Police. The precise arrangements are for the police to determine based on the level of risk involved in each case, taking account of factors such as local crime rates and location of the property.

15. Given that applicants will not need to show good reason, only the standard certificate conditions are likely to apply.

16. The possession offence will come into effect on 30 April 2004. Existing owners have until that date to apply for a firearm certificate. The commencement order for section 39 provides that no offence will be committed where someone has applied for a firearm certificate before 30 April 2004 and their application remains outstanding or is the subject of an outstanding appeal. It has been agreed that existing owners who do not wish to apply for a certificate can hand their weapon into the police for disposal (no compensation is payable for weapons handed in). Again, this must be done before 30 April 2004.

17. Subsection 5 makes clear that the arrangements for existing owners do not apply to registered firearms dealers. This is to avoid dealers retaining stocks of SCGC weapons that they are unable to sell. However, a dealer could apply in an individual capacity to retain SCGC weapons on a firearm certificate for personal use.

18. Retailers will not be able to trade in SCGC weapons from 20 January 2004 although they may continue to possess their existing stock until 30 April 2004. If they wish to sell the weapons abroad or to provide a repair service, they must apply to the Scottish Executive Justice Department for the Scottish Ministers' authority and, where necessary, to register with the police as a firearms dealer. Applications must be submitted before 30 April 2004.

19. To help the Scottish Executive monitor implementation of these provisions, police forces are requested to keep records of:

a) the number of SCGC weapons handed-in;

b) the number of SCGC weapons which are the subject of applications for firearm certificates (both new applications and variations); and

c) the number of SCGC weapons in (b) where the application is refused,

up to 30 April 2004.

20. Subsection 6 amends the order-making power under section 1 of the Firearms (Amendment) Act 1988 to enable the Secretary of State to prohibit or introduce other controls in respect of any air weapon which appears to him to be especially dangerous.

21. The detailed provisions of the Anti-social Behaviour Act 2003 that apply to Scotland are set out in Annex A attached.

Yours sincerely

Catherine Brown
Police Division

ANNEX A

37 Possession of air weapon or imitation firearm in public place

(1) In section 19 of the Firearms Act 1968 (c. 27) (offence to carry firearm in public place) for the words from "a loaded shot gun" to the end of the section substitute-

"(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."

(2) In Part I of Schedule 6 to that Act (punishment) in the entry relating to section 19-

(a) in the second column (general nature of offence) for "loaded firearm" substitute "firearm or imitation firearm", and

(b) in the third column (mode of prosecution) after "not" insert "in the case of an imitation firearm or".

(3) The following shall be inserted after paragraph 5 of Schedule 1A to the Police and Criminal Evidence Act 1984 (c. 60) (arrestable offences)-

" 5A Firearms Act 1968

An offence under section 19 of the Firearms Act 1968 (carrying firearm or imitation firearm in public place) in respect of an air weapon or imitation firearm."

38 Air weapons: age limits

(1) The Firearms Act 1968 shall be amended as follows.

(2) In section 22 (acquisition and possession of firearms by minors)-

(a) in subsection (4) for "fourteen" substitute "seventeen", and

(b) omit subsection (5).

(3) In section 23 (the heading to which becomes "Exceptions from s. 22(4)")-

(a) in subsection (2) omit "or (5)", and

(b) after subsection (2) insert-

"(3) It is not an offence under section 22(4) of this Act for a person of or over the age of fourteen to have with him an air weapon or ammunition on private premises with the consent of the occupier.

(4) But where a person has with him an air weapon on premises in circumstances where he would be prohibited from having it with him but for subsection (3), it is an offence for him to use it for firing any missile beyond those premises."

(4) In section 24(4) (offence to give air weapon or ammunition to person under fourteen)-

(a) in paragraph (a) for "fourteen" substitute "seventeen", and

(b) in paragraph (b) for "that age" substitute "the age of seventeen".

(5) In Part I of Schedule 6 (punishment)-

(a) in the entry relating to section 22(4) in the second column (general nature of offence) for "14" substitute "17",

(b) omit the entry relating to section 22(5),

(c) in the entry relating to section 23(1) in the second column for "14" substitute "17",

(d) after that entry insert-

"Section 23(4)

Person under 17 making improper use of air weapon on private premises.

Summary

A fine of level 3 on the standard scale.

Paragraphs 7 and 8 of Part II of this Schedule apply."

, and

(e) in the entry relating to section 24(4) in the second column for "14" substitute "17".

(6) In Part II of that Schedule (supplementary)-

(a) in paragraph 7 for "22(4) or (5), 23(1)" substitute "22(4), 23(1) or (4)", and

(b) in paragraph 8 for "22(3), (4) or (5), 23(1)" substitute "22(3) or (4), 23(1) or (4)".

39 Prohibition of certain air weapons

(1) The Firearms Act 1968 (c. 27) shall be amended as follows.

(2) In section 1(3)(b) after "air pistol" insert "which does not fall within section 5(1) and which is".

(3) In section 5 (weapons subject to general prohibition) after subsection (1)(ae) insert-

"(af) any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self-contained gas cartridge system;".

(4) If at the time when subsection (3) comes into force a person has in his possession an air rifle, air gun or air pistol of the kind described in section 5(1)(af) of the Firearms Act 1968 (inserted by subsection (3) above)-

(a) section 5(1) of that Act shall not prevent the person's continued possession of the air rifle, air gun or air pistol,

(b) section 1 of that Act shall apply, and

(c) a chief officer of police may not refuse to grant or renew, and may not revoke or partially revoke, a firearm certificate under Part II of that Act on the ground that the person does not have a good reason for having the air rifle, air gun or air pistol in his possession.

(5) But subsection (4)(a) to (c) shall not apply to possession in the circumstances described in section 8 of that Act (authorised dealing).

(6) In section 1 of the Firearms (Amendment) Act 1988 (c. 45)-

(a) in subsection (4), omit the word "or" at the end of paragraph (a) and after paragraph (b) insert- "; or

(c) any air rifle, air gun or air pistol which is not for the time being specified in that subsection but appears to him to be specially dangerous,", and

(b) after subsection (4) insert-

"(4A) An order under subsection (4)-

(a) may provide for a provision of the principal Act to apply with or without modification or exception in relation to anything added to subsection (1) of section 5 by the order,

(b) may impose conditions in respect of any application, modification or exception provided for by the order (which may, in particular, include provision requiring a person to obtain a certificate in accordance with an enactment referred to or applied by the order),

(c) may make provision generally or by reference to a particular purpose or circumstance,

(d) may confer a function on the Secretary of State or another specified person, and

(e) may make transitional, consequential or incidental provision."