Missile could only be discharged from the barrel by using vice and mallet
A modified starting pistol was not a prohibited firearm for the purposes of section 5 of the Firearms Act 1968, appeal judges have ruled.
The court heard that convicted murderer William Bewley escaped from prison in March 2001 and had been at large for nine years when he was arrested in Kent.
Bewley reached towards a cabinet and picked up the pistol, but told police it was not a working firearm. Part of the pistol’s barrel had been removed by drilling and the top part of the hammer was broken off.
He was later convicted of possessing a prohibited firearm under the Act and of escaping from lawful custody at Snaresbrook Crown Court.
A forensic scientist at the Metropolitan Police forensic firearms unit managed to fire the pistol, but only by mounting it in a vice and using a mallet and ‘punch’.
Giving the leading judgment in Bewley v R  EWCA Crim 1457, Lord Justice Moses said: “Both experts accepted that the starting pistol was lethal because it could penetrate that which was commonly accepted to simulate human skin.
“The essential question was whether any shot, bullet or other missile could be discharged from the starting pistol when the only means of such a discharge was the elaborate technique deployed by the expert which we have already described.
“The Crown’s essential argument was that the pistol was capable of discharging a missile. The test was not whether the weapon could be fired easily or effectively but was merely whether it had the capacity to discharge a missile. The fact that it required expertise to discharge that missile was nothing to the point.”
Moses LJ said that since the Firearms Act 1968, the Firearms Act 1982 had widened the scope of the earlier Act to embrace imitation firearms readily convertible into firearms.
However, he said that parliament intended to widen the scope of the meaning only to cases where conversion could be achieved “without any special skill and without the use of equipment or tools other than those in common use”.
Moses LJ went on: “We reject the prosecution contention that the use of the vice to clamp the pistol and the mallet and punch to ram the pellet home did not constitute conversion of the starting pistol.
“Once we exclude consideration of any conversion, we must acknowledge that the starting pistol itself had no capacity to discharge any shot, bullet or other missile.
“A missile could only be discharged from the barrel in combination with other pieces of equipment, namely, the vice with which the pistol could be clamped, the punch and the mallet.”
As a result, the judge said the pistol fell outside section 57(1) of the 1968 Act and was not a “lethal-barrelled weapon from which any shot, bullet or other missile can be discharged”.
Instead, he said the pistol was an imitation firearm within the meaning of section 57(4).
He concluded: “It is clearly highly undesirable that starting pistols such as these should be used by someone, such as this accused, on the run from the police. But such considerations should not override the true construction of the 1968 Act when read with the 1982 Act.”
Moses LJ said there were specific sections in the earlier act which created an offence to attempt to “make any use whatever of an imitation firearm with the intent to resist or prevent lawful arrest or detention”.
He said that if this had been the charge, it would have avoided the complicated issues raised by the appeal. He quashed Bewley’s sentence of five years for possessing a firearm and reduced his sentence of two years for escape from lawful custody to 18 months.
Mr Justice Underhill and Judge Inman QC contributed to the judgment.