The fact that a firearm is incorporated into a dual purpose item does not prevent it from being a firearm “disguised as another object”, the Criminal Appeal Court has ruled.
Lord Justice Clerk Lady Dorrian, Lord Glennie and Lord Turnbull gave the ruling on a reference by the Lord Advocate regarding a torch that could also operate as a stun gun.
It followed a trial in which the accused was convicted of possession of a firearm, namely a stun gun, without a firearm certificate, but acquitted of having in his possession, without authority, "a firearm which was disguised as another object, namely a stun gun disguised as a torch", contrary to the Firearms Act 1968, s 5(1A)(a).
The item in question looked like a black torch and had the words "police" and "flashlight" on opposite sides. It operated as a torch and there were no indications of it also being a stun gun, but a certain combination of switches allowed it to operate as such, though not when also working as a torch.
At trial the defence suggested to the jury that the combination of a stun gun and a torch was a sensible combination of functions, at least in countries where a stun gun was legal, in the same way that the combination of a rape alarm and a torch might be. It was different from a fake item: something that looked like, but not capable of operating as, another object, or that was an absurd combination, like a weapon that looked like a bunch of flowers.
The judge directed the jury that the key question was whether the item was disguised as a torch or whether it was instead a dual purpose item or weapon, in which latter case they would require to acquit and convict instead on the possession charge. Counsel for the defence had "correctly in my view" invited them to take a commonsense approach to the issue of disguise, "asking yourselves what is a disguise and what is a dual purpose item or weapon".
This, the Appeal Court held, was a misdirection. "It is not a defence to a charge of possessing a disguised firearm that the firearm is a 'dual purpose item or weapon', nor does the fact that a firearm possessing the appearance of another item functions also as that other item necessarily deprive its appearance of any element of disguise", said Lady Dorrian, delivering the opinion of the court.
"The offence is committed by being in possession of a firearm which 'is disguised' as another object. This requires a straightforward objective assessment of whether the item is presented in such a way as to conceal that amongst its functions is that of a firearm."
That was a question of fact for the jury to determine. "The normal meanings of the word 'disguise' are to be adopted, and the matter must be determined from the perspective of the ordinary person in the street. Would the ordinary observer appreciate that the item was a weapon, whatever other function it may be capable of performing?"
She concluded: "The fact that a firearm is incorporated into a dual purpose item does not mean that it cannot be regarded as a firearm 'disguised as another object'. The dual purpose of the item may, in an appropriate case, be among the many factors to be considered by the jury in reaching their decision on whether it is a firearm disguised as another object".