Flash eliminators are licensable components, rules British court

Flash eliminators are subject to licensing laws in the same way as complete working firearms and moderators, the Court of Appeal confirmed earlier this year.

The case, Yong v R [2015] EWCA Crim 852, hinged around Dr Matthew Yong’s appeal after he earlier pleaded guilty to possessing two flash eliminators, also known as flash hiders. Count 5 of the original indictment against Yong read as follows:

MATTHEW YONG on the 23rd day of November 2012 had in his possession a firearm, namely 2 flash eliminators, to which section 1 of the Firearms Act 1968 applied without holding a firearm certificate in force at the time.

In the original case against him, both prosecution and defence asked the judge to answer the following question:

Is a licence required to hold a flash eliminator on its own without a prohibited weapon within the meaning of the Firearms Act section 57(1)(a) and without any proof of any intention to own such a prohibited weapon?

The judge said yes, which led to Yong changing his intended plea from not guilty to guilty.

In his appeal against that conviction earlier this year, Yong said he should not have been pushed into changing his plea. As his barrister argued, “component parts” as defined in the Firearms Act 1968 should fall into three distinct categories which he described as follows:

(a) Items which are component parts or accessories to a firearm which cannot be used with any non-controlled item. One example would be a barrel for a firearm which in reality could have no other use than as a component part of a firearm and of which possession without a certificate is an offence irrespective of the attendant circumstances.

(b) Mixed use items, namely components and accessories which could be used with a controlled firearm but which have a legitimate use with non-controlled items. An example given is of a .22 sound moderator which can be fitted to a .22 air rifle or to a .22 rifle. The moderator is identical in every respect, but it is argued that in the first case no certification is required whereas in the second it is. It is submitted that a flash eliminator is an item in this category.

(c) Components and accessories which are not controlled in any circumstances. For example, it is widely accepted that screws fall into this category.

Yong’s barrister argued that if Yong possessed the flash eliminators without any intention of possessing a licensable firearm with them – that is to say, the flash eliminators fell into category b) above – then he had no case to answer.

The Court of Appeal dismissed these arguments on the grounds that in Yong’s original trial nobody had disputed whether or not the flash eliminators should have been licensed, referring to evidence where the defendant himself had freely admitted that he possessed the flash eliminators as part of an invention of his to be fitted to soldiers’ rifles.

In law, the three categories suggested above also now count for nothing.

In rejecting the application for appeal, Lord Justice Treacy said that if the argument about various categories of licensable/non-licensable component parts was to bear any fruit, “the issue would have to be determined as one of fact by a jury.”

The full Court of Appeal judgment can be read on the BAILII website.

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