Lachlan Nisbet and his expert legal team at Brabners look into the essential compliance requirements under the Firearms Act 1968 for Registered Firearms Dealers and auctioneers, dispelling common misconceptions and outlining best practices to avoid serious penalties.
When it comes to the sale and transfer of firearms and shotguns, it is important for Registered Firearms Dealers (RFDs) and auctioneers to understand their obligations under the Firearms Act 1968.The legislation makes it clear that it is an offence for a buyer to possess, purchase, or acquire a shotgun or firearm without a valid certificate. Furthermore, it is an offence for a seller to sell or transfer a shotgun, firearm or ammunition unless the buyer produces a shotgun or firearms certificate authorising them to possess, purchase or acquire the same, as the case may be.
Neglecting these legal duties will expose both sellers and buyers to criminal offences, which can include significant fines or in some cases a custodial sentence, so it is extremely important that you are familiar with your obligations.
Common misconceptions about indirect handling
It’s a widespread misconception we see all too often in the industry, where many believe that only physical possession triggers an offence, and that no offence is committed unless and until an unauthorised buyer collects the shotgun or firearm and has it in their possession. However, the act of handing over money to complete a sale or transfer, even if the firearms or shotguns have not been physically touched or seen by the buyer, is enough to constitute an offence. This is because the financial transaction is caught by the reference to ‘purchase’ and ‘sell’ under sections 1 to 3 of the Firearms Act 1968.
An example of this is being asked to collect shotguns or firearms on behalf of someone without a certificate, for example where a buyer without a shotgun or firearms certificate has transferred funds to a seller, such as an auctioneer, and has arranged for an RFD or another certificate holder to collect the firearms or shotguns from an auction house on his or her behalf. Sometimes this happens whilst an application for the grant of a certificate or a variation is being made with applicants perhaps being a little too eager to progress matters in the absence of a certificate. The handing over of money by any means to complete the ‘purchase’ is sufficient to trigger the offences contained in sections 1 and 2 of the Firearms Act 1968 for the buyer, even though the buyer may not have had the items in his or her possession at any time. The RFD should of course carry out the standard checks before transferring the shotguns or firearms to the buyer to avoid the commission of an offence.
It should be noted that transactions made overseas can also be caught by the Firearms Act 1968 and UK legislation. In the event that a shotgun or firearm is purchased from outside the UK, the courts may still have jurisdiction to deal with such matters. We have acted in cases, for example, where weapons ordered from overseas suppliers have been held by Customs at Heathrow and have triggered an investigation, leading to prosecution. To that extent it is possible to commit purchase offences under the Firearms Act outside the jurisdiction of the UK.
Can anything be done to secure a sale without a certificate?
To avoid the commission of an offence, the only mechanism that a seller is permitted to use to secure a sale is that of taking a deposit from a buyer. When taking a deposit, it is not necessary to have had sight of the buyer’s certificate as a deposit is not sufficient to complete a purchase, and so the offences under sections 1 to 3 of the Firearms Act 1968 are not engaged. A deposit is a commitment to a potential purchase, rather than completion of the actual purchase.
There seems to be quite a bit of debate on the topic of deposits on online forums and the like and there seems to be no clear guidance on exactly what level of deposit is permitted. As a rule of thumb, deposits tend to be around 10% of the final sale price. An amount up to just below half of the value of the sale I suppose could be arguably acceptable on the basis that the purchaser at no point gained the greater financial interest in the item. Better probably to err on the side of caution and to keep deposits at a low but commercial level in order to avoid any ambiguity and any argument that the parties are attempting to circumvent the ‘purchase’ offence.
What are the penalties for purchasing or selling a firearm or shotgun without a certificate?
The offences of possessing, purchasing or acquiring a shotgun or firearm and selling a firearm or shotgun to a person without a certificate are ‘either way’ offences, meaning that they can be tried in either the Magistrates’ Court or the Crown Court. The maximum sentence that can be imposed by the court is a custodial sentence of 5 years, or 7 years for an ‘aggravated offence’. The court can also impose an unlimited fine, the amount of which is based on the offender’s income, and so it is extremely important to take these obligations seriously and to ensure that they are exercised in each and every transaction.
Get in touch
0151 600 3420
07955 200 607
Lachlan.nisbet@brabners.com
www.brabners.com
