HL Deb 29 June 1994 vol 556 cc843-50

6.54 p.m.

Lord Renton

My Lords, I beg to move that the Bill be now read a second time.

It amends the Firearms Act 1968 by filling some small gaps in its provisions. The Bill was introduced in another place by my honourable friend Mr. Michael Shersby, where it was unopposed and unamended, and indeed passed through its various stages on the nod. The Bill's simple main purpose is described in its Long Title, which states that it is, to create a new offence of possessing a firearm or imitation firearm with intent to cause fear of violence". That purpose is achieved by inserting into the 1968 Act a new Section 16A which is set out in subsection (1) of Clause 1. It states: It is an offence for a person to have in his possession any firearm or imitation firearm with intent (a) by means thereof to cause, or (b) to enable another person … to cause, any person to believe that unlawful violence will be used against him or another person", —against an intended victim. Putting it simply, there has to be an intent to threaten violence.

Subsection (2) of Clause 1 specifies the maximum sentence that could be awarded for such an offence. It is pretty high. It is 10 years' imprisonment or a fine; or both. But let no one imagine that that would be the usual sentence of the court. Whenever we specify a maximum sentence, it is only for the very worst kind of case which might come before the courts. I therefore hope that noble Lords will not think that that maximum sentence is too great. The offence could cause a great deal of trouble and could be committed by a persistent offender who has had many previous convictions. In those circumstances, perhaps, occasionally —rarely—that maximum sentence might have to be awarded.

Clause 2 makes it clear that the offence of trespassing with a firearm can be committed by using an imitation firearm. So another small gap in the Firearms Act—in this case it is Section 20—will be filled. It is necessary to have that small gap filled because it has been found that criminals sometimes use imitation firearms to threaten people and then hope to assure the court that they did not mean any harm by doing so. But of course the person threatened would not know whether it was a real firearm or an imitation one. Therefore we need to cover that point. Clause 2 makes that clear, and does so.

Clause 3 makes clear that Clauses 1 and 2 do not extend to Northern Ireland. I need only remind your Lordships that for some years now, since the Stormont Parliament was suspended and the Northern Ireland Government replaced by the Northern Ireland Office in this country, most Northern Ireland legislation has been done by Order in Council. We need to make that clear regarding Clauses 1 and 2.

I believe that that is all I need to say about the details of the Bill. However, perhaps I may briefly summarise its effect when it becomes law. Anyone would then be allowed to have in their possession any licensed firearm, shotgun, imitation firearm, toy gun, water pistol or anything like that, and they will not commit an offence unless they intend either to use one of those items to threaten violence against someone or to enable another person to do so. I beg to move.

Moved, That the Bill be now read a second time. —(Lord Renton.)

6.59 p.m.

Lord Kimball

My Lords, it is a great pleasure to have this opportunity to support my noble friend. I am conscious of the fact that some 36 years ago we had a certain difference of opinion in another place on the foot poundage of air weapons. When I saw that my noble friend was proposing the Bill, I thought how appropriate that was. All noble Lords who are interested in or involved with firearms are grateful for the magnificent work that is done at the forensic laboratory hidden away in his old constituency.

The research and advice that that laboratory gives us and has given my Firearms Consultative Committee over the past five years is tremendous. I must declare an interest, I am chairman of the Government's Firearms Consultative Committee. Our third report was submitted to Parliament on 14th July 1992. It dealt extensively with this problem.

I must delay your Lordships for a few moments because I do not believe that people as a whole realise the grave anxiety that exists about the very realistic imitation and also deactivated firearms. Such was the concern in 1991 that long before the third report was published the Firearms Consultative Committee had had to advise the then Home Secretary about the misuse of imitation firearms. There had been criticism directed at the police following incidents when individuals, subsequently found to be carrying imitation weapons, had been shot by the police. This criticism, in the opinion of the committee, was misconceived and wrong. If people are stupid and reckless enough to put themselves in a position necessitating police action, they cannot expect the police to give them the benefit of the doubt when assessing the risk to the public and themselves.

I hope that the House appreciates how realistic replica weapons are. A person threatened with an imitation firearm will suffer just as frightening an experience as someone threatened with a real one. The concern in October 1991 was over a case where a garage attendant had been threatened with an imitation weapon. The next day he died of a heart attack. At that time the committee was asked by the Home Secretary to examine non-legislative options to see what could be done without putting legislation on the statute book. I pay tribute to the co-operation we received from the British Toy and Hobby Association. It recommended a code of practice for those selling imitation weapons. It also agreed to put warnings about criminal misuse on the packaging.

Customs and Excise said that it would display warnings at ports of entry into this country, similar to those relating to rabies, on the misuse of imitation firearms. I have not seen those warnings at any port of entry through which I have passed. I hope that my noble friend and his department will re-open negotiations with Customs and Excise about the warnings.

So much for the non-legislative actions we considered. The only legislative option we concluded that we would be able to recommend to the Home Secretary was exactly in line with my noble and learned friend's Bill. We stated: A person is guilty of an offence if he has with him an imitation firearm without reasonable excuse where if it was a real firearm an offence would have been committed: carrying a firearm in a public place; trespassing with a firearm". That is what the Bill so neatly gives effect to. I am grateful to my noble and learned friend for finding such a neat legislative way through the problem.

Deactivated are in exactly the same category as replica firearms. They are real firearms which are not held on any form of certificate because they are thought to be totally deactivated. Anxiety will be expressed in detail in the fifth report of the Firearms Consultative Committee which will be laid before your Lordships on 14th July. The concern is that so much of the deactivation that has been carried out on the Continent is not in fact deactivation. It is all too easy to take out the deactivated part, go to a dealer in Derby or where you will, buy the same part and fit it. The proof master from the London proof house is doing his best to persuade our continental colleagues in the European Community about the need for a proper scale of deactivating those weapons. With that warning about another grey area developing in the firearms area, may I say how grateful I am to my noble and learned friend for having taken up our recommendations.

Lord Renton

My Lords, before my noble friend sits down may I respectfully remind him that in your Lordships' House I am not entitled to be called "learned", although he was in order in calling me "learned" in another place.

Lord Monson

My Lords, again before the noble Lord, Lord Kimball, sits down, does he agree that at the end of his introductory speech the noble Lord, Lord Renton, made it clear that he intended the word "imitation" to apply not only to clever imitations—

Viscount Long

My Lords, we are expecting the noble Earl, Lord Attlee, to speak.

Lord Monson

My Lords, I did say "before the noble Lord sits down". The noble Lord, Lord Renton, made clear that he intended the word "imitation" to apply not only to clever imitations, which an intelligent person might mistake for the genuine article, but also to toy guns, water pistols and so on. Does that not put a rather different complexion on the matter?

7.7 p.m.

Earl Attlee

My Lords, I too offer my support for this very simple and clear Bill. I should perhaps declare; my interest. I have a firearms certificate and a blank firing imitation pistol. However, I do not intend to use the blank firing pistol to facilitate making a withdrawal from the Post Office. I also fire on a miniature rifle range which is not a million miles away from your Lordships' House. I am looking forward to playing my part next month in retaining the Visianagram Trophy against the sharp shooters from another place.

Lord Graham of Edmonton

Good luck!

Earl Attlee

I have done some research on this matter. It was the noble Lord, Lord Renton, who presented the 1982 firearms amendment Bill, which also covered imitation firearms, to this House. It was piloted through the other place by Mr. Eldon Griffiths. I am surprised that this problem was not addressed at the time. At Second Reading the noble Lord, Lord Renton, said: Indeed, a toy firearm, completely innocuous and incapable of being fired in any way, is sometimes used by criminals in pursuit of é crime".—[Official Report, 11/6/82; col. 412.] The 1982 Bill seems so very mild and it does not really remedy a mischief which was known at the time. However, I appreciate how difficult it: is to get any Private Member's Bill through another place. It is also dangerous to amend such Bills as no time may be found for the other place to consider any amendments. Therefore, I hope that the Bill will pass all its stages in this House without amendment.

Even a child's toy gun can be extremely realistic when it is pointed at you. So for someone in that unfortunate position, it makes no difference at the time whether the weapon is real or imitation. The noble Lord, Lord Kimball, referred to the tragic event involving the petrol pump cashier. He also referred to the difficult situation in which the police and security forces can find themselves. I support his views on that matter. There should be no sympathy for any criminal who is shot in such circumstances. In the Second Reading debate on the 1982 Act, the noble Lord, Lord Swansea, referred to an incident in the Indian High Commission when two men armed with imitation firearms were indeed shot by the police.

There have been suggestions that imitation firearms should be banned. Especially targeted are those that have an action that can be stripped and cleaned. That suggestion should be resisted, as those who feel no need to have a real firearm may be tempted to have one, legally or illegally, if imitation firearms are not available.

The noble Lord, Lord Kimball, referred to the de-activation of weapons. Presumably the noble Lord was referring to removing the breech and putting in a dummy bolt. Why do not the specifications require welding up the breech so that a live cartridge cannot be inserted into it?

The Firearms Consultative Committee is provided for by Section 22 of the 1988 Act (the "knee-jerk" Act). The Act provided for an initial five-year term for the committee, which could be extended by the Secretary of State for a further period of three years. We know that the committee has done excellent work. I have enjoyed reading its reports. Can the Minister say whether it is intended to continue the work of the committee beyond the initial five-year period? In conclusion, I look forward to seeing this Bill on the statute book.

7.11 p.m.

Lord Swansea

My Lords, I apologise to the House for not having put my name on the list of speakers, and I was too late to do so this morning. I shall be very brief.

Broadly speaking, I approve of this Bill. But as it went through the other place on the nod, I feel that it is incumbent upon this House to take a more careful look at it than usual. The Bill is well-intentioned, but I think it contains what might be called a "Pooh-trap". It could be a two-edged weapon, and could apply as much to the law-abiding citizen as to the criminally disposed.

I invite noble Lords to consider a certain scenario. A householder has acquired, quite legally, an imitation firearm. He disturbs a burglar in his house and produces his imitation pistol, thereby putting the fear of violence into the burglar. Under this Bill, if it becomes law, that householder could be laying himself open to prosecution on a charge for which the penalty could be up to 10 years and an unlimited fine. That is a possible effect of this Bill.

We must be reminded of the wisdom of Lyndon B. Johnson, who said: You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered". The Bill seeks to create an entirely new offence of possessing an imitation firearm with intent to cause fear or violence. Given the current attitude of the police, the Crown Prosecution Service and the courts, the citizen seeking to protect himself or his property is likely to be penalised by this new offence. While the police now seek increased access to firearms to protect themselves, they are also determined that the law-abiding citizen should not have any form of protection.

The long-standing law of this land allows the householder to use such force as is reasonable in the circumstances, and we upset that ancient law at our peril. It may be that my fears are unfounded. I shall listen with interest to what my noble friend has to say. Nevertheless, I find the rest of the Bill quite unobjectionable, and I have no wish to delay its passage. I hope that my apprehensions may be put at rest by my noble friend.

7.14 p.m.

Lord Williams of Mostyn

My Lords, we on this side welcome the Bill, as indeed my Party did in the other House and offered it no impediment. As is well known, imitation guns are readily available and are extremely effective in their deceptive devices. They are extremely well made in terms of weight, size and colour. Even someone who is well used to firearms, when holding one, can be quite easily deceived.

The Bill has the extremely important safeguard, as we see it, that specific intent is required. If I may say so —because I think that my friend, the noble Lord, Lord Renton, might have said so—in answer to the noble Lord, Lord Swansea, the scenario of the householder and the burglar would not render the householder liable under this Bill if it becomes law because the requirement and the specific intent is that the person who is in a state of fear needs to fear unlawful violence. A householder in those circumstances is entitled to use reasonable self-defence, and if doing so he is not using unlawful violence. On that basis we support the Bill. It is a useful, clearly drafted Bill which attends to the gaps in the law which the noble Lord, Lord Renton, specified. If I may say so, with respect, he has demonstrated the value of his Bill and I cannot further add to it.

7.15 p.m.

Lord Annaly

My Lords, I have listened with great care to my noble friend Lord Renton. I am grateful to him for his clear explanation of the Bill that lies before us.

The Government are very conscious that there is understandably a good deal of anxiety and concern, both from the police and the public, about the criminal misuse of imitation firearms. To the victim, being threatened with an imitation firearm is just as frightening as if it were a real weapon.

We are determined to take whatever steps we can to reduce and eliminate the criminal use of imitation firearms. Under the Firearms Act 1968, the use of any imitation firearm in furtherance of crime or to resist arrest already carries the maximum penalty of life imprisonment, the same as if a real firearm had been used.

Under the 1968 Act an imitation firearm is defined as anything which has the appearance of being a firearm, whether or not it can fire any shot, bullet or other missile. This definition encompasses the whole range of imitations from the simplest toy gun to faithful replicas of real firearms. There are, therefore, many millions of items in private hands which fall within the description of an imitation firearm.

My noble friend Lord Kimball raised a point about Customs notices at ports and places of entry into this country. I will look into that and write to my noble friend with the answer.

The Government have, in the past, looked very carefully at measures which might be taken to reduce the criminal use of imitation firearms. In 1991 the Firearms Consultative Committee, which advises the Government on firearms matters, was asked to review existing controls. As my noble friend Lord Kimball said, the committee recommended that the range of offences which applied to the criminal use of real firearms should be extended to cover imitation firearms where this was not already the case. In 1992 the Government announced that they accepted the committee's recommendation in principle and would introduce appropriate legislation when a suitable opportunity arose. The Bill before us this evening seeks to implement that recommendation. It creates a new offence of possession of an imitation firearm, or real firearm, with intent to cause a person to believe that unlawful violence will be used against them. This is primarily aimed at the use of imitation firearms to frighten people who may fear that the weapon is real.

The new offence, though, also extends to real firearms since it is quite possible for a person to have a real firearm purely with the intention to frighten rather than to injure. The possession of a firearm with intent to injure is, of course, already an offence under Section 16 of the Firearms Act 1968.

The Government think that the new offence, which carries a maximum penalty of 10 years' imprisonment, will be a deterrent to those seeking to misuse imitation or real firearms in this way. The Government also consider that the measures which the Bill contains will prove a useful addition to the existing controls to combat the misuse of imitation firearms.

The noble Earl, Lord Attlee, raised the point about the continuation of the Firearms Consultative Committee. That committee was extended by order of my right honourable friend the Home Secretary for another three years from 1st February 1994. The order was made in November 1993.

Lord Monson

My Lords, before the noble Lord sits down, can he say whether it will be a defence to prove that the imitation firearm in question was so obviously an imitation that no intelligent person could believe it to be the genuine article?

Lord Annaly

My Lords, I wonder whether I may ask the noble Lord to repeat the question?

Lord Monson

My Lords, can the noble Lord say whether it will be a defence, when somebody is charged with the offence, to prove that the so-called "imitation" firearm in question is so obviously an imitation—for example, a toy gun painted in primary colours—that no intelligent person could believe that it was the genuine article, even though the occasional unintelligent person might do so?

Lord Renton

My Lords, perhaps I may be of some help on this point because I have naturally considered the matter before the debate. I can assure the noble Lord, Lord Monson, who is quite right to raise the matter, that a toy gun, a water pistol or any kind of imitation gun can be regarded by the courts as an imitation firearm.

Lord Williams of Mostyn

My Lords, perhaps I may also assist. Because of the carefully defined nature of the intent which the noble Lord, Lord Renton, has put into the Bill, if the imitation firearm was of a flimsy nature and quality, a conviction would be exceptionally unlikely because the prosecution would not be able to prove, in the case of a toy firearm of such a. flimsy sort, that the requisite intent was capable of being proved.

Lord Annaly

My Lords, I thank the noble Lord for answering the question.

7.20 p.m.

Lord Renton

My Lords, I am grateful to all noble Lords who have supported the Bill. I am even grateful to my noble friend Lord Swansea, who was the only one who did not support it. Perhaps I may just reassure him, because I feel that one could quite easily do so, if he is not reassured already as a result of hearing some of the other speeches. The noble Lord, Lord Williams of Mostyn, answered him very effectively. I am glad to see my noble friend nods in agreement.

In addition to the words of the noble Lord, Lord Williams, perhaps I may invite the attention of my noble friend Lord Swansea, without going into too much detail, to Section 19 of the 1968 Act, which provides that, if there is a reasonable excuse, one may have even a loaded weapon in one's possession in public. Even more strongly, one could have a purely imitation weapon. I do not feel that my noble friend Lord Swansea need have any fears about the effect of this Bill. There is also the point that, under the common law, anyone threatened directly or indirectly with violence has a right to defend himself by reasonable means.

Perhaps I may briefly answer the other noble Lords who have spoken in this debate. First, I am grateful to my noble friend Lord Kimball, who, with the great expertise that he has acquired over the years, finds himself in a better position to support this legislation than he was some 36 years ago in another place. I am glad that he referred to the forensic laboratory in my former constituency. I must now go and call on it. I think he made a useful point in clarifying the attitude of the police in regard to the carrying of imitation firearms. It was the experience—the sometimes unfortunate experience—of the police which partly inspired this Bill.

The noble Earl, Lord Attlee, referred to the fact, which I had entirely forgotten, that I introduced the 1982 Firearms Act into your Lordships' House. It was a very short Bill—a one-clause Bill. It dealt with the narrow point of the conversion of imitation firearms into the reality of the firearm. Let nobody imagine that the law on imitation firearms has been just a void. There are a number of circumstances already under our statute law in which the use of an imitation firearm is discouraged. I mentioned Clause 20 of the 1968 Act, which deals with trespassing with firearms. That is now completed by inserting the words: "or imitation firearm".

Finally, I am especially grateful to the noble Lords on the Front Benches, the noble Lord, Lord Williams of Mostyn and my noble friend Lord Annaly, for their valuable support. No doubt my noble friend Lord Annaly was briefed by the Home Office and therefore spoke with the backing of the Home Office, which is a great reassurance. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.