R v Bartell [2020] EWCA Crim 625 – Exceptional circumstances test within the Firearms Act 1968

Wed 20th May 2020

Stephen Wood QC considers the recent case of R v Bartell [2020] EWCA Crim 625, where judgment was given on the 1st May 2020 in relation to the exceptional circumstances test set out within the Firearms Act 1968 and suggests that this case following R v Nancarrow [2019] 2 Cr. App. R. (S) marks a perceptible hardening of attitude of the Court of Appeal towards a finding of exceptional circumstances by the sentencing Judge.

The offender, who was 54 years of age, had been found in possession of four converted blank firing pistols; (each one being a prohibited weapon within the meaning of the FA 1968), a sawn-off shotgun, and ammunition, some of which was capable of use with the pistols. He was charged with possessing prohibited weapons and ammunition.

He attended voluntarily at the police station and admitted the offences in interview. He said that he knew what he was doing was illegal.

Having entered guilty pleas, the offender submitted a basis of plea asserting that: –

  1. he converted weapons as a hobby,
  2. the weapons were not distributed, and
  3. he had no connection with violence or organised crime.
  4. he had never sold or given away any of the altered firearms and had no intention of doing so.

It was submitted on his behalf that these factors, combined, amounted to exceptional circumstances such that the mandatory minimum sentence of five years’ imprisonment should not apply.

The prosecution accepted the basis of plea.

The officer in the case agreed that the offender’s working area (the garden shed) had the hallmarks of a hobby rather than a professional operation. The officer agreed that none of the offender’s tools were any other than what might be legitimately purchased at any DIY store.

Nevertheless, the prosecution submitted to the sentencing judge that the mandatory minimum sentence should apply, owing to the aggravating factors in the case and the background of earlier firearms convictions. (He had convictions for possessing firearms without a valid certificate).

A pre-sentence report described the offender’s interest in guns as “verging on an obsession”.

The judge however, found that the offender was not “the ordinary type of firearms offender” which usually involved a criminal background, with guns either being used or made available to criminals.

The offender had no known link to criminal gangs and had made no attempt to sell the converted firearms.

Thus, in these circumstances, the judge found that there were “exceptional circumstances” for the purposes of section 51A of the Firearms Act 1968, although the case remained a serious one because the weapons were genuine firearms and were not securely stored and there were relevant previous convictions.

Taking into account those exceptional circumstances the judge sentenced the offender to a total of 2½ years’ imprisonment.

At the invitation of the Crown, the Solicitor General applied for leave to refer the sentence to the Court of Appeal (Criminal Division) on the basis that it was unduly lenient.

On behalf of the SG it was submitted that five of the counts were subject to the mandatory minimum term under section 51A, unless the court was of the opinion that there were exceptional circumstances relating either to the offence or the offender and that, where the mandatory sentence applied, the plea of guilty would not reduce the sentence below the mandatory minimum.

It was submitted that there was nothing truly ‘exceptional’ in either the offence or the offender.

For the offender it was submitted that the judge’s finding of exceptional circumstances was the equivalent of the reasonable exercise of a judicial discretion, which was open to him on the unusual facts as he found them.

The Court of Appeal granted the SG’s permission to appeal.

The Court commented that the difficulty with an exceptionality test was that it did not provide any clear standard from which the exceptional case would differ.

The judge described the case as neither ordinary nor wholly remarkable but the Court said that this was not a helpful way of looking at the test to be applied under section 51A(2) FA 1968.

Four firearms had been converted by the offender and ammunition was available for use in three of them.

Each of the four firearms were potentially lethal weapons.

The Court went on the make the key statement of general principle that the statutory purpose which underlay the statutory minimum term of imprisonment was deterrence: to prevent such weapons coming into the hands of criminals who would deploy them in the course of committing the most serious crimes: murder, robbery and supplying Class A drugs in large quantities.

Although it seems that the Court accepted that the offender’s interest in them was a hobby, he well understood that what he was doing constituted serious criminality. He understood the danger which the guns posed in the wrong hands and the lack of security in relation to their storage.

Furthermore, the offender had been convicted of firearms offences in relation to some of the guns he had bought earlier and which he had sold in order to acquire the guns that he intended to convert into deadly weapons.

From the wealth of previously reported cases dealing with the ‘exceptional’ test, the Court observed that it was clear that the interests of an amateur in a criminal hobby were not to be regarded as amounting to exceptional circumstances.

Looking at the circumstances of the present case as a whole, the Court of Appeal concluded that they were not exceptional either in relation to the offence or the offender and that the judge had been “clearly wrong” to have found exceptional circumstances on the basis that it was not, in his view, the “ordinary type of case”.

The Court reminded itself that ultimately the test would be whether the imposition of the minimum sentence would lead to a sentence that was arbitrary or disproportionate. However, the answer to that question had to be considered in the light of the clear statutory intent that the offences to which section 51A applied had to be met with strong deterrent sentences. That would mean that in some cases the sentence would be a harsh sentence and might appear particularly so where the offender had pleaded guilty.

The sentences in relation to the firearms offences would be quashed and sentences of five years’ imprisonment on each count to be served concurrently would be substituted; the other sentences would remain unaffected.

Stephen Wood QC

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