HL Deb 13 July 1994 vol 556 cc1876-82

7.10 p.m.

Lord Renton

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Renton.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Possession of firearm or imitation firearm with intent to cause fear of violence]:

Lord Monson moved Amendment No. 1:

Page 1, line 8, leave out ("imitation") and insert ("replica").

The noble Lord said: I beg to move Amendment No. 1 which seeks to substitute the word "replica" for the word "imitation". At the same time, I shall take the opportunity to dispose briefly of Amendment No. 3. At the time that I tabled my amendments, I had assumed that Amendment No. 3 was consequential on Amendment No. 1. However, on re-reading the Second Reading debate and on examining carefully the 1968 Act, I realise that that is not necessarily the case.

Section 20 of the 1968 Act, to which Amendment No. 3 refers, deals with trespass. By definition, trespassers are up to no good and they should not be carrying even the most unconvincing imitation weapons when they are on someone else's property. Therefore, I am wholly content to allow the present wording in Clause 2 to stand and I have no intention whatever of moving Amendment No. 3.

However, Amendment No. 1 is a different matter. I am unhappy about the present wording for two reasons. On Second Reading I tried to establish the precise meaning of the word "imitation" as opposed to the word "replica", which is fairly unambiguous. By definition, a replica implies a fairly exact copy.

The noble Lord, Lord Williams of Mostyn, speaking for the Opposition, suggested that a flimsy toy gun would not be judged by the courts to be an imitation. However, the noble Lord, Lord Renton, took a somewhat different view. He said that a water pistol could constitute an imitation gun, and you cannot get anything much flimsier than the average water pistol.

Subsequent to the debate, I met somebody who appeared to have considerable expertise in this field. He went even further than the noble Lord, Lord Renton. That individual who, for various reasons, I cannot name, claimed that what constituted "imitation" depended entirely on the circumstances; that in the dark, for example, even the most improbable objects could be held by the courts to constitute imitation firearms. Indeed, how many dozens of films has one seen over the years in which people carrying sticks under folded raincoats successfully frighten bank tellers and thus get away with large sums of money from banks; or where the hero, temporarily deprived of his actual firearm, sticks a fountain pen into the villain's ribs saying, "One move and you're dead"?

In answer to the noble Lord, Lord Swansea, on Second Reading, both the noble Lord, Lord Renton, and the noble Lord, Lord Williams of Mostyn, expressed the opinion that under the Bill as it stands, a householder could lawfully use an imitation firearm to frighten off a burglar. That is certainly reassuring; but there must still be grey areas.

Let us take the case of a householder who has no garage and therefore has to park his car nearby on the public highway. In the middle of the night he hears somebody breaking into his car, obviously with the intention of stealing the car radio. The householder grabs a length of broken broom handle or brass curtain rod, dashes outside, sticks it into the thief's ribs—it is a dark night—and says, "This gun is loaded. Don't move a muscle while I call the police". Would that be legal under the Bill as it stands? I await the answer with interest.

Perhaps I may now take the rather more fanciful case of a teenager who is being driven by his father to an evening sports function. The father's car is "cut up" by an aggressive driver in a hot hatchback who keeps on overtaking and then braking, having become irritated with the father for some reason. Exasperated, the teenager grabs his father's telescopic Taiwanese umbrella, which you can buy in most department stores for about £7.95, winds down the window and sticks the umbrella out of the window. Of course, in the dusk it may look like a single-barrelled sawn-off shot gun. The teenager shouts, "Lay off or I will shoot up your rear tyres".

I admit that the second scenario is somewhat far fetched, although not impossible. The first scenario is all too likely in the era in which we live. But either of the people concerned could be caught by virtue of the use of the word "imitation" rather than "replica". I await with interest the noble Lord's reply.

7.15 p.m.

Lord Morris of Castle Morris

My Lords, perhaps I may offer a little assistance in this fascinating but small problem from a somewhat different angle—not as a lawyer but as a former professor of English Literature.

When considering this amendment, I was driven to consult that invaluable work of reference—The Oxford English Dictionary in its complete form, some 20 volumes. I was intrigued to know precisely what the difference between a replica and an imitation might have been held to be over the centuries. I find, and I offer to your Lordships without prejudice in case it may be of any use, the fact that the word "replica", coming as it does from the Latin replicare, originally and etymologically means no more than a reply. It first appeared in the English language as late as 1824 in reference to: A copy, duplicate, or reproduction of a work of art; properly, one made by the original artist". It is only by transference, form b, that it becomes: A copy, reproduction, facsimile". That does not appear until 1865 in a work of fiction by Ouida.

On the other hand, an imitation is a word of much greater antiquity. In its noun form, substantive 2 in The Oxford English Dictionary, it is described as: 'The result or product of imitating; a copy; an artificial likeness, a thing made to look like something else which it is not; a counterfeit". And to my surprise and delight, the first recorded version in English was in 1601 in Shakespeare's Julius Caesar, Act IV, Scene 1, line 37. The first reference to the word itself in a slightly different form goes back to 1502.

Therefore, it seems to me from a purely linguistic standpoint that a replica must be an imitation but an imitation need not necessarily be confined to replication —to being a replica. It may be that your Lordships will have to consider whether the Bill should contain the wider or very, very much narrower form because a replica must be the reproduction of something which actually exists. I offer that with my best regards.

Lord Annaly

It is the Government's view that to introduce a further category of replica firearms would only serve to create confusion and misunderstanding. An imitation firearm is defined in the Firearms Act 1968, and its definition has not caused any problem in the past. For the benefit of Members of the Committee I shall read out the definition. An imitation firearm is defined in Section 57(4) of that Act as, any thing which has the appearance of being a firearm… whether or not it is capable of discharging any shot, bullet or other missile".

Lord Renton

If I may say so, I rather rejoice that the noble Lord, Lord Monson, has moved the amendment —although one could not possibly accept it—if only because it has given us the pleasure of hearing the erudition of the noble Lord, Lord Morris of Castle Morris. By much deeper methods than I was prepared to deploy, the noble Lord has reached the same conclusion as I have regarding the difference in meaning between an imitation and a replica.

However, I return now to the speech made by the noble Lord, Lord Monson, when moving the amendment. I shall come shortly to the three reasons why, in my opinion, Amendment No. 1. is unacceptable. But before I do so, perhaps I may set the noble Lord's mind at rest. The answer to all the potential circumstances that he described is the same answer to be given in each case. In every case the court will have to decide two things: first, whether an imitation firearm has been used; and, secondly, whether it was used with the intent,

  1. "(a)by means thereof to cause, or
  2. (b)to enable another person by means thereof to cause, any person to believe that unlawful violence will be used against him or another person".
In other words, there has to be proof that something that looked like any kind of firearm—not a flimsy imitation or a little bit of pink plastic—was used. That is the first thing that the prosecution must prove and the court must decide. It must then be decided whether or not it was used with the "intent" described in Clause 1 of the Bill.

Having said that, I turn to the three reasons why I suggest that the amendments cannot be accepted. I must point out that it will involve my repeating, to some extent, the two excellent speeches that we have already heard. The first reason is the clear difference so vividly described by the noble Lord, Lord Morris, between the meaning of the words "replica" and "imitation". A replica would have to be an exact copy—the noble Lord mentioned a reproduction—of a particular weapon. That might be very difficult to prove; indeed, it would not necessarily be the sort of thing that had been used.

The second reason has also already been mentioned. It refers to the fact that, whereas all replicas are imitations, not all imitations are replicas. However, the third—and, I believe, the most conclusive—reason is that in this branch of the law the word "imitation" is already to be found in the statutes; it is understood; and it has proved the test of time as regards its usage. But, on the other hand, the word "replica" has not so far been used in the context of firearms legislation. If I may say so with respect to the noble Lord, I believe that it would be unwise for us to introduce it now.

Lord Monson

I thank all noble Lords who have spoken. I, too, looked up the OED as it happens, but I consulted the two-volume copy rather than the full version which the noble Lord, Lord Morris, perused. I came to the same conclusion. Indeed, we all agree that the meaning of replica is very much narrower than that which applies to the word "imitation". There is no doubting that fact. However, my amendment is a probing amendment. It was really designed to ascertain whether the use in the dark of objects which have no connection with a gun, such as piping, doweling or whatever, could be taken as using imitation guns.

I am still a little unclear on the latter, but I suppose that there is a let-out in that in the cases that I described there was no intention to cause serious harm to anyone. Indeed, it could be argued that the individuals were merely protecting themselves, even though it was not within the four walls of their own homes where they have rather more right to engage in self-defence than they have out in the streets or on the open road. I am still a little worried about this point, but I suppose one can rely on the Crown Prosecution Service not to launch any frivolous prosecutions. With that hope, rather than total assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Monson moved Amendment No. 2:

Page 1, line 17, leave out ("10") and insert ("5").

The noble Lord said: Although I fully appreciate that the 10-year maximum sentence proposed by the Bill as it stands would rarely be used—indeed, the noble Lord, Lord Renton, explained that to us on Second Reading —it still worries me because it seems to be disproportionate. I shall no doubt be corrected if I am wrong, but, as I understand it, in the Bill we are not talking about using an imitation firearm in furtherance of a robbery or similar crime. That offence is already rightly covered by other legislation. We are talking about merely using the imitation gun to frighten people, for whatever reason, as an end in itself. That is a fairly serious business, but does it really merit a maximum of 10 years' imprisonment?

Further, one reads in press reports that Mr. Michael Howard, the Home Secretary, proposes to introduce legislation which would impose a seven-year maximum sentence for possessing a sawn-off shotgun. A sawn-off shotgun is an extremely lethal weapon; but an imitation gun, for all the worry that it may cause people, is not lethal. Therefore, can the noble Lord who is speaking for the Government or, indeed, the noble Lord, Lord Renton, explain the discrepancy in the maximum sentence? I beg to move.

Lord Annaly

The Government support the view that the maximum penalty of 10 years, as opposed to the five years proposed by the noble Lord's amendment, is appropriate for the offence which is created by Clause 1. We are talking about a very serious offence. In the Government's view, the offence should carry a penalty which will act as a substantial deterrent to those who seek to misuse firearms or imitation firearms in that way.

The noble Lord made particular mention of the increase in the sentence from five to seven years for shortening the barrel of a shotgun to less then 24 inches under the Criminal Justice and Public Order Bill. The noble Lord is quite right to say that that is a most serious offence. However, just to put the matter into context, perhaps I may tell Members of the Committee what other offences would attract a sentence of seven to 10 years. For example, there is the offence of reconverting a deactivated firearm to fire live ammunition without being a registered firearms dealer for which one would receive a sentence of five to seven years. For possessing a sawn-off shotgun or a reactivated firearm, one could expect to receive the same sentence. Finally, for the offence of carrying a loaded firearm in a public place or that of trespassing with a firearm in a building, a sentence of five to seven years would be imposed. The seven-year sentence in relation to a sawn-off shotgun is for simple possession. Here we are talking about threatening behaviour. The purpose of the Bill is to deal with threatening behaviour. I think that that probably answers the noble Lord's question.

Lord Renton

I am grateful to my noble friend Lord Annaly for giving the Government's reasons for sticking to the maximum penalty of 10 years. I would remind the Committee, and especially the noble Lord, Lord Monson, that a maximum penalty is not to be regarded as the usual penalty. It is the maximum penalty for the worst example to come before the courts from the nature of the offence, which is of course described in the statute.

However, each offence can have varying degrees of severity in its application. Also, we have to consider that we are dealing sometimes with the worst type of offender. I hope I may give an example. Let us suppose that a man who has been imprisoned several times already for offences of violence uses an imitation firearm in order to perform a bank robbery and succeeds in getting a large amount of money that way. Let us suppose that he has already been sentenced for that —he may be sentenced to seven or eight years, although a maximum penalty may be much more—and the police happen to find that he has in his possession an imitation firearm with intent to cause another person to believe that unlawful violence will be used. The police would be justified in saying, "This is pretty bad. We will have to bring him before the court", in spite of all the warnings that he has been given in the past and the attempts to redeem his character in prison. In order to protect the public we need to have for this particular kind of offence the possibility of a high deterrent sentence for the worst type of case.

I do not need to repeat what my noble friend Lord Annaly has said about other cases, but I shall just mention one or two points. We need to bear in mind that the various degrees of maximum sentence that we impose by statute for somewhat similar cases bear some relation to each other. Already under the Criminal Damage Act 1971, for example, merely threatening to damage property carries a maximum penalty of 10 years' imprisonment. Under the Criminal Justice and Public Order Bill which completed its Report stage last night, simple possession of a prohibited weapon also now carries a sentence of 10 years. If we did not make the maximum penalty 10 years under this Bill, it would not give the right message to those to whom it should be conveyed. Therefore I hope that on reflection the noble Lord, Lord Monson, who was fully justified in putting this amendment down, will feel that there are good reasons for retaining the maximum sentence in the Bill for the very worst type of offence.

Lord Monson

First of all, I thank the noble Lord, Lord Annaly, for his explanation of the various maxima applicable to various firearms offences. I must say it still seems to me, looking at the whole gamut of the offences he read out, that a suitable maximum for this particular offence would be nearer seven years—possibly five may be too low—than 10. However, I agree that this is perhaps a matter of fine judgment.

As I said in my opening remarks, I appreciate that the maximum is only rarely used. Nonetheless it sets a marker for the trial judge as to what the right sentence ought to be. If 10 years is the maximum for this particular offence, it seems to me, logically speaking, that it should be in line with that for the possession of a sawn-off shotgun. However, I agree that this is a matter of judgment and no doubt the department has thought the matter through clearly and arrived at what will prove to be the right decision.

Any Private Member's Bill, as opposed to a government Bill, which proposes a maximum sentence for anything—whatever it may be—of as much as 10 years ought not to go through both Houses on the nod. It went through the other place on the nod but I hope it will be agreed that it is right that this should not go through this House on the nod. Some questions ought to be asked, and they have been asked. They have been answered, if not to my total satisfaction, then to my reasonable satisfaction. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Application of sections 20 and 46 of 1968 Act to imitation firearms):

[Amendment No. 3 not moved.]

Lord Monson had given notice of his intention to move Amendment No. 4:

Page 1, line 25, leave out ("imitation") and insert ("replica").

The noble Lord said: Amendment No. 4 deals with Section 46 of the 1968 Act which gives JPs, and sheriffs in Scotland, the power to issue search warrants for guns, and by extension imitation guns, and to seize and detain them. On reflection, there is not much danger that warrants will be issued for the seizure and detention of broom handles, curtain rods or telescopic umbrellas. I do not therefore propose to move this amendment.

[Amendment No. 4 not moved.]

Clause 2 agreed to.

Remaining clauses agreed to.

House resumed: Bill reported without amendment; Report received.