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

[Rogerborg]

33 minutes ago, Tommikka said:

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.

 

 

36 minutes ago, Tommikka said:

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 ?

[Guest PT247]

34 minutes ago, Rogerborg said:

 

 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]

9 hours ago, Tommikka said:

(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]

2 hours ago, Rogerborg said:

 

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]

53 minutes ago, Tommikka said:

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]

5 hours ago, Rogerborg said:

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]

41 minutes ago, BigAl said:

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?

 

 

Quote

 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]

4 minutes ago, BigAl said:

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?

 

 

4 minutes ago, BigAl said:

 An airgun can be a realistic imitation firearm

 

 

Sound like we're agreeing.

 

 

4 minutes ago, BigAl said:

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. 

[Tommikka]

5 hours ago, Rogerborg said:

 

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?

 

 

 

Section 38 still references ‘imitation’ so I still would assert that an air weapon is a firearm and therefore a firearm that looks like another firearm is still a firearm in its own right.  

 

I don’t claim that coverage in one act exempts from another, only that an air weapon firearm isn’t an imitation.  

I do believe that paintball guns can fall within both firearms and the VCRA - that was also the opinion of the Association of Chief Constables when they made a study enquiry with RAP4 UK.  They considered the RAP4 realistic range to be RIFs which was an obvious conclusion but also that any of the Black Paintball guns could be considered RIFs.  On the feedback advice they were given RAP4UK introduced their own free scheme and a two tone option.  This caused ripples across Paintball retailers and slowly was forgotten about until a few years ago and MagFed importing retailers asked the question again via  the UKPSF.

 

 

 

5 hours ago, Rogerborg said:

 

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?

 

....... is more dangerous.......

With one RIF airsoft gun and one airgun the prosecution of two counts under the VCRA would be wrong - guilty of one, not guilty of the other

 

The more dangerous element of an airgun isn’t a matter of the VCRA

 

The violent crime element is the act by the scallies, but the VCRA sections are there for the specifics of selling a RIF

[Tommikka]

3 hours ago, Rogerborg said:

 

.......

 

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?

 

 

Deactivated firearms look like an oddity in the VCRA as they appear to be a firearm in sections of an act about imitation firearms.

But the Firearms act also has the section that states a deactivated firearm is no longer a firearm.  That statement would then mean that by no longer being a firearm a deact it would meet the RIF definitions under the VCRA, so the included reference specifically excludes deacts from the VCRA.

4 hours ago, BigAl said:

 

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.

Prior firearms legislation doesn’t trump the VCRA due to timing, if there is a conflict then the newer legislation would take priority.

 

I consider that the VCRA doesn’t apply to airguns/air weapons that are valid firearms as they are real as opposed to imitation.

 

But the VCRA can and does apply to airguns that are not “firearms rated” - airsoft BBs are propelled by air.  

[Rogerborg]

 

11 hours ago, Tommikka said:

I consider that the VCRA doesn’t apply to airguns/air weapons that are valid firearms as they are real as opposed to imitation.

 

I appreciate you phrasing it as an opinion rather than a fact., but is there any basis for that consideration in statute or case law?

 

If it's speculation, that's fine, as it's all we've got to go on.  I'd just like us to be clear when we're stating an opinion (mea culpa), and when we can provide a citation.

 

 

12 hours ago, Tommikka said:

I don’t claim that coverage in one act exempts from another, only that an air weapon firearm isn’t an imitation

 

 

Why can't it be both?

[Tommikka]

4 hours ago, Rogerborg said:

 

 

I appreciate you phrasing it as an opinion rather than a fact., but is there any basis for that consideration in statute or case law?

 

If it's speculation, that's fine, as it's all we've got to go on.  I'd just like us to be clear when we're stating an opinion (mea culpa), and when we can provide a citation.

 

 

 

 

Why can't it be both?

My citations are as per my bigger post with quotes, but with the references are:

 

 

VCRA

Part 2 weapons

 

Section 28.3 Definition of “dangerous weapons”

 

Section 38.1 defines  “realistic Imitation firearm”

 

 

Section 38.7 a&b. Deactivated firearms

(On the basis that the firearms act states a deactivated firearm is not a firearm, which would render it as a RIF without these paragraphs- ensuring that it is a true deactivation rather than any other imitation

 

There is no definition of an “imitation firearm” within the VCRA, so I regret to the Firearms act

 

 

Firearms act 

section 57.1 definition of a “firearm”

Section 57.3 definition of an “imitation firearm”

 

 

 

I wouldn’t say it can’t be both, other parts of the VCRA covers different weapons which have existing legislation and ‘new’ ( now Over 10 years old) offences under the vcra, but with no definition of an imitation in the VCRA then I take the firearms acts definition and claim that a weapon under the firearms act is a firearm and therefore not subject to being an imitation or realistic imitation even though in the English language definition it could be a firearm that imitates another firearm 

 

PS the big writing isn’t shouting, just copy & paste!

[Rogerborg]

That's well reasoned, I have nothing to retort with.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[AshOnSnow]

On 25/05/2017 at 17:44, SeniorSpaz87 said:

Hmm... interesting point. I have gotten my VSR to shoot at around 720-730 FPS, which is approaching 22. caliber FPS (generally 900 FPS). I also know a guy here in the states who has the M200, and according to him the C02 bolt for it makes it shoot around 800 FPS...

Remember that the UK law defines by muzzle energy, not projectile speed.
 

So an airsoft gun shooting 720fps on .20g is roughly 3.5ft lbs.

A .22 calibre air gun will shoot up to 12 ft lbs in the UK before needing a firearms certificate.

A subsonic .22LR will shoot around the 100 ft lbs mark.

And a .22 Hornet will shoot around the 750 ft lbs mark.

[SeniorSpaz87]

On 08/11/2018 at 07:46, AshOnSnow said:

Remember that the UK law defines by muzzle energy, not projectile speed.
 

So an airsoft gun shooting 720fps on .20g is roughly 3.5ft lbs.

A .22 calibre air gun will shoot up to 12 ft lbs in the UK before needing a firearms certificate.

A subsonic .22LR will shoot around the 100 ft lbs mark.

And a .22 Hornet will shoot around the 750 ft lbs mark.

 

Yea thats all true, I was just referring to raw hitting power of the BB, not the joules as you are looking at. I was just stating that airsoft guns can get powerful enough to do some damage.

[AshOnSnow]

7 hours ago, SeniorSpaz87 said:

 

Yea thats all true, I was just referring to raw hitting power of the BB, not the joules as you are looking at. I was just stating that airsoft guns can get powerful enough to do some damage.

 

Sidenote, you can now get AR15s in the UK on standard firearms licenses chambered in the 350ft/lb .22WMR

[jcheeseright]

19 hours ago, SeniorSpaz87 said:

 

Yea thats all true, I was just referring to raw hitting power of the BB, not the joules as you are looking at. I was just stating that airsoft guns can get powerful enough to do some damage.

 

The joules ARE the hitting power, force = mass*acceleration.  FPS is largely irrelevant without the mass, a feather hitting you at 100fps will hurt a lot less than a brick hitting you at 100fps.  

 

An Airsoft gun shooting at 1000fps even with a .45 g BB won't be to do any real damage, short of hitting an eye.