Offensive Weapons Bill

Written evidence submitted by BASC (OWB61)

THE OFFENSIVE AND DANGEROUS WEAPONS BILL

A SUBMISSION TO THE BILL COMMMITTEE BY THE BRITISH ASSOCIATION FOR SHOOTING AND CONSERVATION (BASC)

Introduction

With some 150,000 members, the British Association for Shooting and Conservation (BASC) is widely regarded as the major UK representative body for sporting shooting. BASC’s expertise on firearms matters is widely recognised and we are routinely consulted by a variety of government departments and agencies (including the Home Office & DEFRA,) and other statutory and non-statutory bodies, e.g. the National Police Chief’s Council.

BASC is unique amongst UK shooting associations in having a specialist, eight man team dedicated to dealing with firearms matters. It is made up from former gun trade practitioners, police firearms licensing personnel, a former firearms licensing manager, former service personnel and others. Its expertise is nationally recognised. The team deals with upwards of 10,000 member enquiries p.a.

Staff from BASC’s Firearms Team routinely give expert evidence in both criminal cases as well as in firearms licensing appeal cases heard under Section 44 of the Firearms Act 1968. All Firearms Team staff are constantly mentored to ensure that any advice they give is correct in law, scientifically sound, based on best practice and impartial. Stringent peer review is built into our operational procedures.

BASC wishes that the remarks made in this submission should be construed as applying to the legal jurisdiction of any devolved administration within the United Kingdom.

BASC holds itself ready to assist the Committee by providing oral evidence if necessary

Overview

Rifles are seldom used in crime in the UK. They are not attractive to criminals because of their length and bulk. Ammunition – especially large calibre - is very difficult to obtain. The weapon of choice for the armed criminal remains the pistol or sawn-off shotgun. This is ironic as pistols were banned from public possession in 1997. This strongly suggests that prohibition legislation remains ineffective; criminals find a way to evade it, meaning that only the law-abiding are affected by it.

This is plain from the comment made in the House of Commons Briefing paper CBP7654 of 2nd August, 2017 which states.

"Rifles have remained the least common non-air firearms type accounting for around 1% of all offences over the period".

1) Large target rifles.

1.1) The government seeks to place rifles from which any bullet can be discharged with a kinetic energy value at the muzzle of 13,600j (10,000 ft lb) in the prohibited weapons category of the Firearms Acts 1968 – 1977. This limit is entirely arbitrary and has no ballistic significance.

1.2) These rifles were described in the consultation as "anti-materiel weapons" (meaning anti-military equipment). That is misleading; a weapon’s anti-materiel capability is conferred not by its range or power but by the special nature ammunition e.g. explosive, armour-piercing or incendiary. All of these types of projectile are banned from civilian ownership. Target shooting is conducted with inert projectiles.

1.3) The Home Office Minister, the Rt. Hon Nick Hurd MP, acknowledged that this description was inaccurate in his response to PQ109587 laid by Daniel Kawczynski, MP.

"For avoidance of doubt I should have also made clear that all armour-piercing and explosive ammunition is subject to a general prohibition and can only be possessed with the authority of the Secretary of State under section 5 of the Firearms Act 1968. No such authority has been granted for the use of such ammunition by civilian target shooting clubs".

1.4) Anyone who wishes to possess one of these rifles for target shooting has to satisfy the Chief Constable of the area in which he resides that he has satisfied the "good reason" requirement at S27 of the Firearms Act 1968. This is a hard test and the fact that one of these rifles plus ancillary equipment costs about £18,000, ensures that such applications are substantial and not done on a whim. All persons who currently own such rifles have already satisfied the chief officer that they have ‘good reason’ to possess. Furthermore, they have satisfied the tests to prove that they are fit to possess such rifles and can be permitted to possess without danger to public safety or the peace.

2) Lack of Evidence base

2.1) The Home Office consultation document containing the proposal to impose this ban was based on the assertion that they posed a serious "threat to the public" due to "their range and penetrative power" and "would be uniquely difficult for the police to control".

2.2) No evidence was produced to sustain these assertions, therefore this is not an evidence-led provision. Rather it is based on a perception of vulnerability, albeit not a high level of vulnerability. At a meeting with BASC and the British Shooting Sports Council (BSSC) on 13th June, one police employee described the possession of such firearms as "uncomfortable from our perspective". Another officer predicated the proposed ban on a threat picture that was "dynamic and fluid", although he did not elaborate on this remark.

2.3) It is difficult to see how this perspective has arisen, given that these firearms do not have any history of criminal misuse or attractiveness to terrorists. (Large calibre rifles were last used by the IRA in the early 1990s. They were not obtained by theft but illegally smuggled into Northern Ireland illegally.).

2.4) Large calibre rifles have not featured in any international single incident mass killings (SIMKs). They have not featured in crime in countries where they proliferate e.g. the US. In the UK there is no history of armed criminals using such rifles.

2.5) Only one of these rifles has ever been stolen from a Firearm Certificate holder in the UK (in North Wales). BASC has interviewed that person and from that conversation has concluded that the theft was not targeted and was completely opportunistic. This is sustained by the fact that the rifle has been recovered after being discarded by the criminals who stole it. Furthermore the rifle was drastically modified by having its barrel shortened. As it showed signs of having been fired, the thieves probably discarded it as being wholly unsuitable for their purposes. Although this rifle was in criminal hands for a short time, it was not used for criminal purposes. This strongly suggests that it was stolen by people who did not know what it was and then having ascertained that it was unsuitable for criminal purposes, discarded it.

3) Lack of proportionality

3.1) There are approximately 200 rifles (150 .50 cal target and 50 historic anti-tank) that would be caught by this ban. Given this single incident of theft which resulted in neither criminal nor terrorist use, BASC asserts that the Home Office proposal is totally lacking in proportionality.

4) Legal Problems Associated with Defining a Firearm by its Kinetic Energy

4.1) Defining a firearm by means of a kinetic energy (KE) limit is immediately problematic in law. KE is a mathematical function based on projectile mass and velocity (½MV²). It flows from this that a firearms KE limit can be varied by:-

• Altering the projectile weight.

• Changing the propellant charge either by type or weight.

• Altering the barrel length. (Shorter barrels tend to produce lower velocities and by

extension, lower KE limits).

Good evidence exists to show that a rifle with a 22" inch barrel firing a standard .50cal cartridge will produce a KE level under 10,000 ft lb.

4.2) In terms of any prosecution, testing a large target rifle to determine its KE level will be difficult as few (if any) ballistic laboratories have the facilities to accommodate it. Published ballistic data could not be used in such a case as the Defence would immediately put the Crown of strict liability to prove its case, i.e. was the rifle capable of exceeding the 10,000 ft lb KE limit at the time of any alleged offence and with any ammunition recovered with it. (Similar considerations with air weapons have caused prosecutions to fail or be withdrawn).

4.3) Consequently, defining a firearm by means of its KE level will inevitably lead to widespread avoidance as certificate holders simply buy rifles or modify existing ones so that they do not exceed any statutory limit, thus defeating the measure.

4.4) In any case, as all .50 cal rifle owners reload their ammunition, this makes such avoidance by the use of specially manufactured cartridges inevitable.

5) The Home Secretary’s letter to MPs

5.1) On 27th June 2018, the Home Secretary wrote to MPs about the Bill. Much of his letter dealt with these large rifles. BASC rebuts these points as follows. (NB the Home Secretary’s remarks are in inverted commas).

5.2) "These are very powerful firearms that could cause devastating public harm if they got into the wrong hands".

The same could readily be said of any firearm, even the smallest calibre sporting rifle. In any case, recent terrorist attacks have used motor vehicles, home-made explosives and kitchen knives to cause dreadful public harm. The UK’s gun legislation is already very rigorous which probably explains why terrorists turn to weapons other than firearms. UK terrorist attacks have favoured kitchen knives and vehicles, not rare, large and difficult to carry rifles.

5.3) "They are six times more powerful than the weapons used in the Charlie Hebdo terrorist attacks and are much more powerful than standard British Army rifles".

This statement is misleading as it does not compare like-with-like. The Charlie Hebdo terrorists used rapid firing assault rifles at massed targets at very close quarters. That scenario could not be replicated with these large target rifles which are heavy, cumbersome and single-shot. The terrorists used very poorly deactivated assault rifles which they were readily able to reactivate with DIY tools alone. The UK has very tough deactivation standards and laws making this illegal in the UK.

The comparison of "power" (kinetic energy levels) is irrelevant. The 5.56mm NATO cartridge used by the Army is designed for large volume fire at close ranges (<300m). (Coincidentally, this cartridge is used to control red foxes and other quarry species). Many widely used sporting rifles produce KE levels greater than British Army cartridges and those the Charlie Hebdo terrorists used. Such comparisons are meaningless and irrelevant.

All rifles (and indeed any other firearm) are lethal when in the wrong hands.

5.4) "These guns have a range of several miles. Their penetrative powers mean that with the right ammunition they can penetrate body armour worn by soldiers".

This assertion is manifestly incorrect. The longest confirmed effective shot by a military sniper is only just 2 miles. That was exceptional and achieved by a highly trained soldier with state of the art military equipment. In the right hands, a sporting rifle used for hunting deer is effective at 1000m. Target rifle shooters regularly shoot at 1000yards.

The notion that anybody can just pick up one of these large target rifles and kill someone at several miles distance is misleading. Effective shooting at long ranges requires intense training plus a detailed understanding of ballistics. As stated earlier, the terrorist method of engagement is close-quarter making the supposed range of these large target rifles irrelevant.

The body armour argument is emotive. Many widely used sporting rifle cartridges will defeat it as well. Any rifle bullet is difficult to stop due to its velocity and its pointed shape which makes it a good penetrator. Body armour is actually designed to stop lower velocity projectiles from pistols.

5.5) "Concerns have been raised by UK law enforcement about the civilian ownership of high muzzle energy rifles and rapid firing rifles and the risk they may pose to public safety".

Concerns that are not backed up by evidence are simply the expression of prejudice and have no validity as planning tools. They should not be used to formulate public policy or new legislation.

As stated earlier, the police have no evidence to sustain this proposal hence the use of the words "may pose" in the Home Secretary’s sentence.

5.6) "In another case a licensed firearms holder of weapons including a .50 Calibre rifle was also involved in supplying firearms and ammunition to Sundish Nazran, who was the chief armourer to a West Midlands organised crime gang".

It should not be forgotten that the licensed firearms holder, Dr Surdhar, had been fully vetted by the police before being issued a firearm certificate. The police had found him to be a suitable person to possess firearms and he had good reason to possess his .50 cal rifle. Surdhar worked with the English karate team and for the NHS. There was no suggestion at Surdhar’s trial that he had supplied any of these large target rifles to criminals. This is a case of sensationalism being used to bolster a weak case.

5.7) "In these circumstances, the Government has a duty to safeguard the public and take action. The Bill responds to public concerns and will provide the police with the powers to effectively tackle serious violence".

BASC in unaware of the expression of any concerns made by the public. 78% of the public responses to the Home Office Consultation were against the proposed ban. Equally, no evidence has been adduced to show that the public is in any real danger from those certificate holders who have submitted themselves to the licensing regime in order to possess these large target rifles.

BASC asserts that the case for banning these large target rifles on public safety grounds has not been made out.

6) A Potential Solution

6.1) The solution to minimising any perceived risk posed by the civilian ownership of .50 cal and other large rifles is to manage that risk effectively. Such rifles are already licenced by the police, meaning that authorities to possess them are only granted to persons of good character who have "good reason" for possessing them. A Chief Officer is entitled to add conditions to a Firearm Certificate. As it is a criminal offence to fail to comply with the terms of a condition, they have the force of law.

6.2) Consequently, BASC recommends that owners of these rifles should be subject to enhanced security requirements, at least to Level 3 as outlined in the Home Office Guide on Firearms Licensing Law 2016. Furthermore this should be tailored to individual circumstances and might involve separation of component parts and ammunition in secure containers covered by a signalling alarm.

7) Government proposal – rapid firing rifles

7.1) Rifles using the MARS and other systems to produce higher rates of fire are not used in live quarry shooting and thus fall outside of BASC’s area of core business. Nonetheless, BASC remains opposed to the proposal to prohibit them on the grounds that this is neither proportionate nor evidence-led. There is no history of these firearms being used in either armed crime or terrorism. BASC is aware that some disabled shooters find these rifles easier to operate than standard bolt action types.

7.2) BASC also draws the government’s attention to the fact that technology is constantly evolving and where a legal definition of a firearm type is put into statute, it is inevitable that firearms designers will produce a design that seeks not to breach the law, but to comply with it.

7.3) Those certificate holders who currently possess them have satisfied Chief Officers that they have "good reason " to do so as is required by law. If there is a perception that these types of firearm pose an additional risk to public safety, then management of that risk by requiring certificate holders to adopt enhanced safety measures is the proper course of action to take.

8) Government proposal – corrosive substances.

8.1) BASC supports the government’s proposals to reduce the misuse of these substances. In particular, the "good reason" (5(2) defence is welcome as it seeks to control behaviour by focussing on individuals rather than employing the blunt instrument on an outright ban. BASC commends this approach.

8.2) The "at work" defence (5(3) is particularly welcome to the gun trade which uses some corrosive substances.

9) Government proposals – knives

9.1) BASC understands the government’s concerns about young people obtaining knives illegally through the post without wishing to prohibit postal sales entirely. The exemption for bespoke cutlery and the permitted delivery to business premises assist in this aim.

9.2) Heritage bladed objects.

BASC has detected an anomaly in Clause 16(3). This will disadvantage heritage bladed objects. Someone who orders a bayonet for an American Civil War musket because he is a collector will have to have it delivered to business premises. Another person ordering it because he intends to use it for the purpose of historical re-enactment can have it delivered to his home. That is unfair and disproportionate. The defence needs to be extended to cover bladed items ordered because they are heritage items. As it currently stands, dealers in such material are disadvantaged despite no evidence having been adduced that these items are acquired by young people for use in crime.

9.3) Threatening with a knife

BASC supports any change in legislation that tackles criminal behaviour with knives. However, any new legislation which facilitates prosecution must contain sufficient checks and balances to make sure that those carrying a knife for legitimate purposes are not caught up in it.

9.4) Consequently, any new legislation must be subject to detailed scrutiny to prevent any unintended consequences arising from it. Knives have many legitimate uses in field sports and this must not become a catch-all offence that encourages lazy prosecutions. The CPS must continue to satisfy the current tests under which it operates.

9.5) Updated legislation for flick-knives

Flick-knives have been effectively prohibited in the UK since 1959 (Restriction of Offensive Weapons Act 1959, Section 1). Consequently, they are rare in the UK. Those that exist are illegal imports or were owned pre-1959. Plenty of good legislation exists to deal with them if carried in a public place as they are offensive weapons, per se. BASC suggests that an absolute prohibition (as has been suggested), extending to their possession on private premises will not make any significant impact on knife crime and thus fails the proportionality test.

9.6) In recent years, assisted opening or automatic knives have been designed which deploy their blades by spring pressure but which do not satisfy the legal definition of a flick knife. These have legitimate uses where a person has the immediate need of a knife but cannot let go of what he is doing with his other hand to open it, e.g. holding a sheep entangled in bailer twine prior to cutting it loose. Some rescue knives are made with self-opening blades.

9.7) In any case, no evidence has been adduced by the Home Office to show that either type of knife has been the subject of increased use in knife crime. Any change in legislation that is neither evidence-led nor targeted against a specific problem will inevitably be ineffective and consequently disreputable.

10) Offensive Weapons Order 1988.

10.1) Reference is made to the Offensive Weapons Order 1988. This piece of legislation is nearly 30 years old. BASC asserts that it is conceptually flawed, as its basis was simply the wholesale adoption of the sales catalogue of a now defunct company from Sussex, called "Battle Orders". No regard was given to the actual capability or potential for criminal use of the weapons in that catalogue.

10.2) many items were simply prohibited because somebody did not like the idea of them, i.e. no evidence base. Some examples follow.

· Some of the prohibited martial arts weapons – the kusari gama - are not only obscure but unless used by a highly proficient person, more dangerous to the user than any potential victim.

· Push daggers are no more dangerous than any other fixed-blade knife. The definition of one has the potential to catch a game dressing tool such as the Outdoor Edge Skinner, simply because it looks like a push dagger.

· The balisong or butterfly knife is also no more dangerous than any other knife. The fact that its blade folds into a handle is simply a safety feature.

· The blowpipe definition as written, catches a child’s pea-shooter.

· The foot claw is not practicable to use and is likely to injure the user.

10.3) Simple possession of any item included in the Order outside of a public place should not be an offence. No evidence has been adduced to show that this presents any problem or makes any significant contribution to the misuse of prohibited items. This proposal undermines the statutory defence that the item is an antique.

10.4) The statutory defence that if something is excluded from the Order because it is over 100 years old and is thus an antique, is conceptually sound and should be retained. However to give it parity with similar regulation regimes, albeit Home Office guidance [1] , the date should be moved to 1939 or later.

10.5) BASC recommends that the Order be subject to the detailed review by a working group of both lawyers and weapons experts, who should make recommendations for its revision and modernization. In its current from BASC does not believe that the Order is fit for purpose.

July 2018


[1] The Home Office Guide on Firearms Licensing Law 2016, Chapter 8.

 

Prepared 17th July 2018