If an operable RIF is outside the definition of "airsoft gun" does it require a defence?

[Rogerborg]

it can't be an imitation if it is a real...

Why can't it be both, for the purposes of different pieces of legislation which classify the same object in different ways?

For example, a wheeled thing that you pedal with your feet can be a bicycle, or it can be a vehicle, or it can even be a carriage, depending on whether you're reading RVLR, RTA, TSRGD or the Highways Act 1835 and Taylor v Goodwin 1879.  Matching the criteria for the purposes of one law doesn't stop it matching different criteria for the purposes of another law.

am done, if you don't get that then I can't explain it any simpler for you.

I believe that you've made an assertion, or a statement of belief phrased as fact, rather than an explanation.

An explanation would cite a statute, regulation, or case law.

Let's do a thought experiment.

Let's take that airgun, which we all agree is a firearm, and plug the barrel or otherwise gut it and render it inoperable.

At that point, it is a de-activated firearm, yes?

Now let's read S38 (1) (b) which explicitly says that being a de-activated firearm is one of the two explicit conditions that mean that it's not a realistic imitation firearm.  Are we on board?

Now wind the clock back 2 minutes to before it was plugged and read that section carefully.  Is it exempted by dint of being a (non de-activated) firearm? 

If it is, why doesn't S38 say so?  It goes to the trouble of exempting de-activated real firearms.  Why doesn't it just exempt all real firearms, de-activated or otherwise?  That would have required fewer words.

At that point, we're into looking in our crystal ball to speculate on what Parliament might have meant to say, but didn't.

 

[Tommikka]

Under firearms legislation the definition of ‘firearm’ is not restricted to only those that work with an explosive propellant (the fire part)

It includes many others, such as air weapons.

Airguns to the appropriate power levels are unlicensed (in most of the UK)

Back in the olden days when paintball arrived in the UK it ran on CO2 and didn’t fit into the right definition.  In England the police ignored that, but in Scotland the police stuck to the exact letter of the law and kept raiding Scottish Paintball sites and prosecuting for firearms

offences.

Subsequent action legalised CO2 powered air weapons

Under the VCRA a RIF is ‘realistic’ but does not have to be in the eyes of an expert. The definition does not mean a RIF looks like an existing firearm.

This is why firearms legislation allows air weapons to look like other ‘real’ guns, and the VCRAs RIF/IF definitions don’t apply as they are not imitations under the definitions

Firearms legislation also includes things that don’t look like firearms in any way - if they meet the definitions (the common example being tasers disguised as phones etc)

 

[PT247]

Jeez.... it isn't deactivated, therefore it is a firearm. It is an air rifle, therefore it is a firearm.... converting it to something different will change what it is, but then it becomes not what it is now, it becomes what it is converted to. What matters is that upping the power of an airsoft RIF is manufacturing a firearm. At the point it has the muzzle energy to be classed as a firearm it is no longer a RIF.

 

[Rogerborg]

The definition does not mean a RIF looks like an existing firearm.

That's almost exactly what it does say.

I quoted it (nearly) verbatim above, and linked to it so that we can discuss what it actually says.

This is why firearms legislation allows air weapons to look like other ‘real’ guns

Which firearms legislation explicitly says that?  Which case law clarifies it?

Or dare I assume that's an assumption?

and the VCRAs RIF/IF definitions don’t apply as they are not imitations under the definitions

That looks rather like a circular argument.

To be clear, I'm not saying that you're wrong.  Heck, I'd like it if you were right.  But I wouldn't want to be the first to have to argue it in front of a bench without some case law or persuasive judgements in my corner.

 

[Tommikka]

Firearms legislation doesn’t explicitly cover any look alike. It defines using the way that each ‘firearm’ works (e.g. a self contained round on the face of it is a classic bullet, but includes Brocock air pistols as they have a self contained  ‘air round’.   Legal air pistols became section 5 firearms overnight.  They are generally considered illegal in the UK today, but can be held on a licence if someone went through the process.

The VCRA isn’t particular to it looking like a ‘real gun’

Just that it looks real enough to an observer, and that if Joe Bloggs thinks it’s real then it is a RIF (which prevents calling in an expert in court who would say that it doesn’t look like a real gun)

Under the VCRA a “real firearm” is an actual real firearm and something that’s broadly like one.

I need to head out and do some stuff, so I’ll have to check back in again for parts that would exclude air guns from the Imitation side of the VCRA

Deactivations are an oddity in my mind with their explicit element in the VCRA.  That’s not necessary as far as I’m concerned becuase they would be a real firearm and covered if the deactivation was compliant. I suspect that an interested party asked the question about deacts in the consultations (or the corridor chats that happen between politicians in the background)

In sections 36 and 37 “realistic imitation firearm” means an imitation firearm which—

(a)has an appearance that is so realistic as to make it indistinguishable, for all practical purposes, from a real firearm; and

(b)is neither a de-activated firearm nor itself an antique.

(2)For the purposes of this section, an imitation firearm is not (except by virtue of subsection (3)(b)) to be regarded as distinguishable from a real firearm for any practical purpose if it could be so distinguished only—

(a)by an expert;

(b)on a close examination; or

(c)as a result of an attempt to load or to fire it.

 

• “real firearm” means—
  
  
  
  
  
  (a)
  a firearm of an actual make or model of modern firearm (whether existing or discontinued); or
  
  
  
  
  (b)
  something falling within a description which could be used for identifying, by reference to their appearance, the firearms falling within a category of actual modern firearms which, even though they include firearms of different makes or models (whether existing or discontinued) or both, all have the same or a similar appearance.
  
  
  
  
  

 

[Rogerborg]

the VCRA isn’t particular to it looking like a ‘real gun’

Fair point, I snipped the "similar appearance" part for brevity, as the "actual make and model" covers that airgun MP5K that I used as an example of airgun sellers not giving two figs about jumping through any VCRA hoops, even though they're selling things that look identical to airsoft RIFs, but which shoot harder things at higher energies.

I’ll have to check back in again for parts that would exclude air guns from the Imitation side of the VCRA

Thanks, I'm genuinely interested to see if we can turn anything up.

 

[Nick G]

Well that has certainly started a debate ! While we are at it, what constitutes manufacturing ? If it is starting with raw materials and ending up with a working RIF that's one thing BUT could teching our guns be considered as manufacturing ? adding upgrade parts that alter the factory spec ? what about taking a generic M4 and turning it into an L119 ? or starting with a bunch of parts and doing the same ?

 

[PT247]

 airgun sellers not giving two figs about jumping through any VCRA hoops, even though they're selling things that look identical to airsoft RIFs, but which shoot harder things at higher energies.

Again, I think you are not getting the point.... you are getting your knickers in a twist about a firearm looking like an imitation firearm, your brain is on backwards today mate!

 

[Immortal]

If it looks like an apple, tastes like an apple and shoots like an apple - then it's a firearm.

 

[Tommikka]

Back on the case for firearms & imitations

If we pretend for a minute that the VCRA doesn’t exist (I would say let’s go back in time to pre-VCRA but those pesky politicians have slipped in subsequent parts for airsoft in the Firearms act as well)

https://www.legislation.gov.uk/ukpga/1968/27/section/57

Firearms are defined:

57
Interpretation
(1)In this Act, the expression " firearm " means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes—
(a)any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and
(b)any component part of such a lethal or prohibited weapon; and
(c)any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon;
and so much of section 1 of this Act as excludes any description of firearm from the category of firearms to which that section applies shall be construed as also excluding component parts of, and accessories to, firearms of that description. 

Disregarding ‘lethal barreled’ for the moment as lethality is a whole different matter, which doesn’t have to mean ‘lethal’ in the dictionary definition

Imitation firearms are:
* “imitation firearm” means any thing which has the appearance of being a firearm (other than such a weapon as is mentioned in section 5(1)(b) of this Act) whether or not it is capable of discharging any shot, bullet or other missile; 

It only needs the ‘appearance’ here, so doesn’t have to look like an existing firearm to be an imitation

So far airsoft could sit in either camp depending on where it sits on the lethality scale or if it gets detailed in any specific firearms definitions.  Air soft uses solid plastic BBs so you can’t try the paintball get out clause with frangibility.  But those pesky airsofters have been at it again, and had a section slipped in that turns airsoft guns into non firearms:

https://www.legislation.gov.uk/ukpga/1968/27/section/57A

F157A
Exception for airsoft guns
(1)An “airsoft gun” is not to be regarded as a firearm for the purposes of this Act.
(2)An “airsoft gun” is a barrelled weapon of any description which—
(a)is designed to discharge only a small plastic missile (whether or not it is also capable of discharging any other kind of missile), and
(b)is not capable of discharging a missile (of any kind) with kinetic energy at the muzzle of the weapon that exceeds the permitted level.
(3)”Small plastic missile” means a missile that—
(a)is made wholly or partly from plastics,
(b)is spherical, and
(c)does not exceed 8 millimetres in diameter.
(4)The permitted kinetic energy level is—
(a)in the case of a weapon which is capable of discharging two or more missiles successively without repeated pressure on the trigger, 1.3 joules;
(b)in any other case, 2.5 joules.]

So as long as it meets the criteria an airsoft gun is not a firearm, which makes it an imitation (unless it has no resemblance at all)
The OP then if cranking up the power can cease compliance as an airsoft gun and could find himself with a firearm
Then the VCRA also turns up and brings in the new definition of a RIF
Air guns remain in the firearm category and being firearms they aren’t imitations

Annoyingly they also now define a “deactivated firearm” as ceasing to be a firearm ... and that would bring it to imitation territory 

https://www.legislation.gov.uk/ukpga/1988/45/section/8

8 De-activated weapons.
For the purposes of the principal Act and this Act it shall be presumed, unless the contrary is shown, that a firearm has been rendered incapable of discharging any shot, bullet or other missile, and has consequently ceased to be a firearm within the meaning of those Acts, if— ........

Then CPS guidance states that deactivated firearms are not imitations
And to be sure to be sure the VCRA slips in its own deactivated section 

https://www.cps.gov.uk/legal-guidance/firearms

De-activated Weapons
If a weapon bears an approved house mark and has been certified in writing as de-activated, the item is presumed to be incapable of discharging bullets or shot. De-activated firearms are expressly excluded from the definition of realistic imitation firearm and are therefore not affected by the new realistic imitation offence: Section 8 Firearms (Amendment) Act 1988.

The CPS and the Home Office also come to a bit of a differing opinion on Paintball with regard to the VCRA

On the CPS guidance page they state that paintball ‘could’ fall into the VCRA (which I agree with) 

The Home Office have stated to the UKPSF in at least one letter that Paintball is in the firearms act, without lethality due to paintball frangibility, and slipped in a line that they are still air weapons which equals firearms and not imitations .   

 

[Rogerborg]

(1) In this Act, the expression " firearm " means

Emphasised.  The point that I'm trying to convey is we tend to talk about our "statute book" in the singular, while it's really nothing of the sort. It's a dog eared and somewhat mildewed library of books and pamphlets, many with scribbled changes or annotations, some of which refer to each other, some of which don't, some define or re-define terms, some rely on I-know-it-when-I-see-it.

Trying to apply a consistent lexicon of definitions across our body of law is like trying to find a black cat in a dark room, when the cat isn't there.

Each act and regulation can introduce new definitions, and the very same object or action can be one thing for the purposes of one law, and a different thing for the purposes of another law, without any contradiction or mutual exclusion.  A bicycle and a vehicle and a carriage.  Cycling and riding and driving.

Likewise, there is nothing specifically preventing an object from being considered both as a firearm and as a realistic imitation of a firearm.  The Firearms Act doesn't say so.  VCRA 2006 doesn't say so.  Common sense might say otherwise, but statute law is not much concerned with that - if common sense were sufficient, we'd only need and have common law.  Each Act and each definition can be considered in isolation.  The CPS / Fiscal can and will choose whatever Act is most convenient to them, and use it in isolation when they decide that our jibs are not cut to their liking.

If you (AF-UK, generally) disagree, I'd really like to know why, and on what factual basis.  Not liking having a contradictory body of law which can be prosecuted selectively is not a refutation of the reality of it.

The firearm MP5K that I referenced - or for the sake of our argument, an airsoft RIF that's been powered up to exceed the airsoft limits, making it a firearm - does on a plain reading meet the explicit criteria given for being considered to be a realistic imitation firearm under S38.  It is - by design and intent, even - a realistic imitation of an actual make and model of real firearm. That's sufficient to meet the definition under S38.  Is not excluded by the explicit exceptions, one of which is being a de-activated (and only a de-activated) firearm.

If you were prosecuted for selling that item under VCRA S36, using the definition in S38, and without an S37 defence, what would your defence be?  What specific wording in VCRA, or the Firearms Act, or in any other piece of legislation, or in case law, would you point at which trumps the S38 definition?

 

[Tommikka]

Emphasised.  The point that I'm trying to convey is we tend to talk about our "statute book" in the singular, while it's really nothing of the sort. It's a dog eared and somewhat mildewed library of books and pamphlets, many with scribbled changes or annotations, some of which refer to each other, some of which don't, some define or re-define terms, some rely on I-know-it-when-I-see-it.

Trying to apply a consistent lexicon of definitions across our body of law is like trying to find a black cat in a dark room, when the cat isn't there.

Each act and regulation can introduce new definitions, and the very same object or action can be one thing for the purposes of one law, and a different thing for the purposes of another law, without any contradiction or mutual exclusion.  A bicycle and a vehicle and a carriage.  Cycling and riding and driving.

Likewise, there is nothing specifically preventing an object from being considered both as a firearm and as a realistic imitation of a firearm.  The Firearms Act doesn't say so.  VCRA 2006 doesn't say so.  Common sense might say otherwise, but statute law is not much concerned with that - if common sense were sufficient, we'd only need and have common law.  Each Act and each definition can be considered in isolation.  The CPS / Fiscal can and will choose whatever Act is most convenient to them, and use it in isolation when they decide that our jibs are not cut to their liking.

If you (AF-UK, generally) disagree, I'd really like to know why, and on what factual basis.  Not liking having a contradictory body of law which can be prosecuted selectively is not a refutation of the reality of it.

The firearm MP5K that I referenced - or for the sake of our argument, an airsoft RIF that's been powered up to exceed the airsoft limits, making it a firearm - does on a plain reading meet the explicit criteria given for being considered to be a realistic imitation firearm under S38.  It is - by design and intent, even - a realistic imitation of an actual make and model of real firearm. That's sufficient to meet the definition under S38.  Is not excluded by the explicit exceptions, one of which is being a de-activated (and only a de-activated) firearm.

If you were prosecuted for selling that item under VCRA S36, using the definition in S38, and without an S37 defence, what would your defence be?  What specific wording in VCRA, or the Firearms Act, or in any other piece of legislation, or in case law, would you point at which trumps the S38 definition?

I would go by the VCRA defining what a RIF is in comparison to an IF, but having no definition of what an “Imitation Firearm” is,   (Other than the greater than 50% of specified bright colours/transparency), and argue my case with the Firearms definitions of firearm and imitation firearm.

The modified airsoft RIF example would initially not be a firearm under the Firearms airsoft paragraph and would be a realistic imitation under the VCRA definition.

Once modified to exceed the power etc it would no longer be an imitation and would fall outside of the VCRA.

To the amateur eye there would be no distinction, to the expert eye it would appear to be a RIF on sight, but turn out not to be so when chrinographed.

Should there be a case against a seller then their argument would be that it was unmodified and sold as a RIF to a valid buyer if they took reasonable steps to validate the sale of a RIF.  If it were sold already modified then it would depend on the legal status of its postion as a firearm on any licencing.

A conflict that I can think of is a Hello Kitty M4.

A real Hello Kitty firearm (of the applicable legal specifications) would be UK legal for someone who justified the use and had the right certificate etc

An airsoft Hello Kitty could be both a RIF and an IF.

To be pedantic to the letter of the law I would veer to a Hello Kitty airsoft gun being a RIF as pink is not an IF colour unless it is bright pink 

I don’t want to be the guy testing the line in court.

Paintball is far more blurred and as far as anyone is concerned my Chinese army AK47 paintball gun was bought in Lidl’s carpark in 2007 just before the act came into force, thus possession is pre VCRA.

My SLR and other possible RIFs came later., I don’t like to sell but I have references to UKPSF/ Home Office correspondence and UKPSF membership to fall back on, but ideally am never going to need to.

Terrorism could be a different matter for some of the other things we have designed and built 

 

[Rogerborg]

Once modified to exceed the power etc it would no longer be an imitation and would fall outside of the VCRA.

Why?  it still meets all the criteria of S38, it doesn't meet either of the exclusions.

I'm stymied as to how I can ask this in a different way without repeating myself, but what is it that makes you believe that falling under one act means that it can't also fall under another?

Scenario: you sell a scally an airsoft gun that looks like an MP5K, and an airgun that looks like an MP5K.  They use them for intimidation in a robbery - dual wielding, bruv - and are caught.  You are fingered for selling them those two objects.

The police decide to charge you for two counts of supplying a realistic imitation firearm under S36, using the definition in S38.  CPS prosecute.  You're in the dock.  You have no S37 defence.  What do you say?

"Yeahbut, OK, so I grant you that they're both visually identical realistic imitations of an actual make and model of modern firearm. Sure, I'm banged to rights on the one on the right. Or maybe the left, I can't tell from here.  But, see, the one on the left ... or is it the one on the right?... is more dangerous, right?  I mean, left. So you don't get to count that one as a realistic imitation firearm.  And no, I can't point at any actual words in either VCRA or FA that says as much, not per se.  But, you know,  I reckon so, I'm sure that's what Parliament would have meant to have said if they were as smarter as me."

For an encore, try arguing that - surprise twist! - you put a stronger spring in the one on the right (or maybe the left), so, hah, that's actually a firearm as well!  You guessed wrong, copper, you can't do me under VCRA.  And no double jeopardy neither, so gibs compo.

What's that? The fuse is blown and it doesn't shoot at all?  So it's back to being a not-a-firearm, and it falls under S38 again despite not changing one iota in appearance?  Curses, you have me now.

I'd honestly love to see that played out in court.  I mean, from the gallery rather than the dock.

However, I rather doubt the efficacy of arguing that a fake realistic imitation of a real firearm is a realistic imitation firearm but a real realistic imitation of a real firearm isn't a realistic imitation firearm.  Is how I imagine the prosecution brief would incredulously drawl it, one eyebrow raised quizzically.

 

[BigAl]

if you were prosecuted for selling that item under VCRA S36, using the definition in S38, and without an S37 defence, what would your defence be?  What specific wording in VCRA, or the Firearms Act, or in any other piece of legislation, or in case law, would you point at which trumps the S38 definition?

You cannot, the VCRA came along after the firearms and airgun laws , as such the fact that an airgun is a replica of a real gunpowder propelled weapon is irrelevant as it it is in the eyes of the law an airgun.  The VCRA does not and cannot be made to apply to airguns, firearms rated or otherwise.

 

[Rogerborg]

the fact that an airgun is a replica of a real gunpowder propelled weapon is irrelevant as it it is in the eyes of the law an airgun.

I'm sorry, but I'll have to ask again: why does that mean that it can't also be a realistic imitation firearm?  Where is the wording in any statute that prevents it?

 The VCRA does not and cannot be made to apply to airguns, firearms rated or otherwise

Why not?

S38 does not apply to de-activated firearms.

If it doesn't apply to any other firearms (airguns or otherwise), why doesn't it say so?

Really, truly, if there's wording in any act that I'm missing, I'd love to have it pointed out.  Better yet would be clear case law.

Absent that, what I'm seeing is assumption and assertion.

 

[BigAl]

The VCRA does not affect any weapon already covered by other existing legislation.  An airgun can be a realistic imitation firearm but in the eyes of the law it will always be an Airgun, that the way it works.

 

[Rogerborg]

The VCRA does not affect any weapon already covered by other existing legislation.

Please excuse me if I'm missing the blindingly obvious, but where does it say that?

 An airgun can be a realistic imitation firearm

Sound like we're agreeing.

but in the eyes of the law it will always be an Airgun

As well.  It will be an airgun as well, for purposes of airgun legislation. And a firearm, for some purposes. And it can be a realistic imitation firearm, for purposes of the VCRA.

Acts of Parliament introduce new categories, and new offences, unless they specifically supersede or amend previous legislation.  I'm baffled as to where this idea is coming from that if an object or action is covered by one piece of legislation, that it can't be covered by another.

 

[Nick G]

Surely the fact that if you take your airgun out and wave it around in public for instance leaves you open to charges and penalties that are the same as 'conventional' firearms means that they are covered by both sets of legislation ?  

As an aside I have decided to down spring the L96 and aim for a consistent power level bang on the site limit . Thatll give me an interesting exercise without any risk of inadvertently breaking the law. Unless that counts as manufacturing ! 

 

[BigAl]

If you wav a RIF or Airgun  or react or a live firearm you face charges of assault with a firearm, if you live.

 

[Nick G]

That's my point, so more than one legislation applies. It's interesting to think how many 'hot' guns are supplied by retailers, you could genuinely quite innocently find yourself in possession of an illegal gun.