Notes from Presentation given by Assistant Chief Constable Adrian Whiting (Dorset Police) to NAReS AGM 19 November 2006

ACPO’s Firearms and Explosives Licensing Working Group

Mr Whiting is currently Chair of FELWEG (Firearms and Explosives Licensing Working Group) of ACPO. He also chairs the technical working group. He works with and to the Home Office and the Forensic Science Service. On behalf of ACPO, FELWEG deals with licensing policy issues and the examination of firearms, potential firearms and other kit and equipment to consider how dangerous they might be and the potential risk of conversion to a firearm.

Mr Whiting is a member of the Criminal Use of Firearms Committee (CUF), the purpose of which is to prevent the criminal misuse of firearms.

He started his address by commenting on future arrangements. Police force amalgamations now look like a dead duck. They failed because of Council Tax equalisation issues, which the Treasury refused to address. The structure of policing in England and Wales is therefore likely to stay much as it is at the moment, with forty three separate police forces, but the police are slowly taking on board issues of co-ordination of policy and co-operation between the forces.

Views on Re-enactment

Mr Whiting is actually a re-enactor in a red coat in the Diehards, and is therefore that rare thing, a policeman who understands ‘our side of the fence’. The police now recognise re-enactment as a legitimate interest and pursuit. Ministers are determined that future legislation will address public safety, and these issues are to be the thrust of present and future legislation. For example air weapons are now only to be sold by registered firearms dealers (RFD’s) but ‘banning guns’ stopped at re-enacting. If, however, it became necessary, because re-enactors were being criminals or posing a threat to public safety, then re-enactors weaponry would be banned. Accordingly the re-enactment movement must ensure that no criminal use or public safety issues arise as a result of the re-enacting hobby. As a result of recent campaigns, particularly the re-enactors response to the Violent Crime Reduction Bill and in keeping cap and ball black powder pistols from being banned when hand guns were abolished in private ownership, the Home Office is now aware of re-enacting and they acknowledge it.

The Home Office is paranoid about section 5 firearms (machine guns), and in the future holding any S5 weaponry in private hands will become virtually impossible. The Home Office is also concerned about ‘theatrical performance’ exceptions - S68 Firearms Act issues. Counsels opinion exists saying that re-enactment is a ‘theatrical performance’ in terms of the 1968 Act but the Home Office is looking into this, because it has concerns about the loan or issue of weaponry at re-enactment events. This particularly applies to RFD’s issuing to Second World War re-enactors, anything from a Garand rifle to M42 machine gun. The police have to ensure that a prohibited person does not gain access to a part 5 firearm, so the administration of the supply of weaponry in these circumstances will come under scrutiny in the future.

ACC Adrian Whiting stressed the need for re-enactors to ask any person joining them or guesting with a group at an event, that they are not ‘prohibited person’ i.e. no criminal record, and that if they applied for one they could have either a shotgun license or a firearm certificate. Mr Whiting felt this is something of a low risk situation but it still needs to be covered because the police and Home Office do not want a theft of a weapon or its misuse, especially an S5 weapon. Again on the public safety/anti-terrorism paranoia, S5 type weaponry are shortly to be subject to further regulation, and it is likely that for this type of weapon only blank firers will be permitted soon. If re-enacting does not keep it’s own house in order, so that nothing untoward happens, the Home office and the police will be dropping on re-enacting ‘like a ton of bricks’.

S11.6 of the 1968 Act - Exemption - Firing at Artificial Targets e.g. clay pigeons. With prior application to the Chief Officer of Police for the area, it is possible to gain particular exemption to allow such to take place i.e. notify the police what you are going to do and where. Sometimes Napoleonic’s and ECW re-enactors load weapons with a sock or bits of paper, and allow members of the public in controlled and supervised circumstances to fire at cardboard targets using the ‘clay pigeon shoot’ exemption. The police are concerned that this is a safe activity, and to be lawful it always has to be at a time and place approved by the police.

Up-coming legislation

The Violent Crime Reduction Act received the royal assent on the 8 November 2006. The first bits of it are likely to be brought into force in January 2007 by Regulation.

• Air weapon sale or transfer
• S68 now to apply i.e. if buying or selling air weapons is a trade or business it has to be done by an RFD
• This includes parts but not air gun pellets
• The National Firearms Management System linkage to the national police computer systems is intended to be rolled -out soon
• It is likely that sales of air weapons and firearms soon have to be handed over face to face when buying from a dealer
• Age limits for air and other firearms types: it is no longer possible to hire or purchase if you are under 18
• The control on the supply of primers does not include percussion caps. The control of primers is an attempt to limit criminal use of hand loaded and home made ammunition. It is an offence to sell to another or buy or attempt to buy unless you have a firearms certificate or you are an RFD for primers for metallic cartridges. Possession alone is not an offence. The idea is to restrict supply of primers only to those who are legitimately authorised to use them, to stop the ‘naughty boys’ making their own ammo
• Realistic imitation firearms (the manufacture, import and sale)

(See more detailed notes at end of this article)

The object of the legislation is to stop bad kids using these in robberies and other crimes. The ban is on selling or importing, manufacture or changing something into looking like one. The legislation does not apply to a de-activated weapon or an antique. You can own one i.e. it is not an offence to posses. A modern firearm is a design or mechanism dating from post 1870.

Imitation firearms are to be controlled by Regulations yet to be written, but henceforth they cannot be sold to under 18 year olds.

Realistic imitation firearms

• Not an antique or a de-activated firearm
• The historical re-enactment exemption
• ‘Means any presentation or other event held for the purpose of re-enacting an event from the past or of illustrating conduct from a particular time or period in the past’
• ‘In the past' means the immediate past so it is OK to re-enact very recent events such as the Gulf Wars
• The re-enactor exemption can be tested by the availability of third party insurance cover

The Violent Crime Reduction Act is to be supported by various Regulations yet to be published. Mr Whiting thinks that the test will have to be that reasonable steps to show a person is a re-enactor will need to be membership of a club, society or organisation that runs to NAReS rules of qualification e.g. does this group have third party public liability insurance cover etc.etc. He considered that to prove you are a member of a society the membership card for that relevant group would be sufficient proof.

ACPO recommends that you put on the back of your society membership card a note of the insurance cover or, perhaps, a note that the re-enactment group has third party liability cover up to X£M, or whatever.

This is ONLY relevant to the acquisition or use of a realistic imitation firearm - if it is a real shotgun or firearm you go via RFD with your shotgun/firearms certificate of course! Where you are using an imitation gun for re-enacting, and the defence is that it is for historical re-enactment, then you have take ‘reasonable steps’ to identify the genuineness of the transfer of the item such as an imitation for re-enacting purposes.

Knives and Other Weapons

• Minimum age for sale to be 18
• Exemptions to include theatrical performance (therefore you can lend or issue it for the event!)
• A knife is defined as ‘with a blade or point’ sharpened. A blunt object is not necessarily a knife for the purposes of the legislation
• You can't wander around without lawful excuse with one of these things e.g. a re-enactor or bona fide collector. Living history is considered to be either re-enactment or a theatrical performance. The police view is that you can take these things to and from your private residence to re-enactment events and use them at the re-enactment event and this includes private places where you go for your own amusement e.g. a training weekend. BUT YOU HAVE TO KEEP THE WEAPONRY ON SITE I.E. NO GOING DOWN TO THE PUB WITH A SWORD OR KNIFE ON YOUR BELT. The Prevention of Crime Act 1953 - if you go for a march down a street in a parade, that could either be with lawful authority i.e. prior approval by the local authority or the police or a reasonable excuse for doing it is a defence i.e. the Lord Mayors parade in London is treated as a re-enactment for the purpose, but do not go swanning around town on a Saturday in your uniform with your rifle on your shoulder and the bayonet fixed, without it being a properly organised event!

Crossbows (The Crossbows Act 1987)

The police are concerned that Crossbows are being used in crime particularly youth crime. It does not apply to Longbows. The age provisions move up from 17 to 18 for the sale, hire, purchase and possession of Crossbows. No exemption for under 18’s for a theatrical performance when a Crossbow is involved. This is to stop young persons getting hold of powerful Crossbows and robbing off-licences. Therefore, as for a firearm, you CANNOT hand it to a kid and say ‘here you are - have a go…’

Explosives

Additional regulations are designed to frustrate the terrorist threat. The Home Office is concerned that home-made explosives (TATP or black powder/gun powder) could just as easily be used to blow up a tube train as gelignite stolen from a quarry. This was why MSER came in. New regulations now likely to gather around the fireworks industry, because ‘naughty people’ are buying fireworks and using the gun powder propellant particularly from rockets to make propellants for home-made bullets in home-made handguns or conversions, and/or could put together enough of it to make a bomb. In the future it is likely that the private purchaser fireworks may come to an end and any fireworks displays will be by professional, licensed and regulated organisations. Mr Whiting was not aware of any other inroads into control of use of explosives for re-enactors such as more black powder controls BUT, if something goes wrong, it will be looked at again.

Child Protection

This was raised as a query to Mr Whiting as to it’s relevance to re-enacting. He commented that the Criminal Records Bureau was just a functional data checker. For £10 an individual could get a subject data access check done by the local police, that shows what convictions they might or might not have. CRB checks are only good for that moment in time that they are done e.g. like an MOT.

If re-enactors are doing educational school visits, it would be prudent for the re-enactors to contract with the school to require the school to be in constant supervision of the children i.e. ensure that there is a teacher there at all times during the re-enactors presence in the school, so that you don't have to bother with the CRB checks. It is the school or the education authority who are responsible in these circumstances. However, there may be circumstances where a re-enactor doing such things has to have CRB checks in order to meet the contract required of him by the school.

If you have youngsters as part of your organisation, parents or guardians ought to be responsible for them and to supervise them during re-enactment society activities or camps. Re-enactment groups therefore need a Child Protection Policy in place. If you are to be a Registered Body, it costs about £400. If you are to be a Youth Organisation, you have to do this. The risk is always of allegations against an adult by mischievous kids. It is therefore wise in your Policy to make sure the parents/guardians are in ‘loco parentis’, and not the society BUT what about a presentation to or involving children at a public event and under- supervised children are coming up to look at your presentation? For your own protection it would be likely that those who become involved in such activities in normal course of events should be protected by having a CRB check done e.g. the medical team, the drum major of the band and any special public speakers or show-men, who talk/demonstrate to the public.

The tricky area is a one-on-one with a child if a parent not there supervising. Re-enactors are wise to make sure that they have another person with them (an adult) if no parent/guardian is available to be with you to act as a witness in the event of any allegations, and don't go inside a tent or a vehicle alone with somebody else's child. Don't dress children up. Inappropriate touching could result as an allegation. Preferably have women members present and always remain in the public gaze, and be aware of what is going on around you. Most youth workers re-do their CRB checks annually. You have to demonstrate you have taken ‘reasonable steps’ and ‘reasonable precautions’.

Questions and Answers

As a result of a further question and answer session Mr Whiting commented inter alia that

1. Actors i.e. re-enactors can touch/possess firearms but an audience i.e. the general public cannot. This was the essence of the Theatrical Performance exemption
2. No weapons (firearms, swords, bayonets etc) should go off site from a re-enactment/’down the pub’ because you have no lawful excuse to have the same off site, down the pub, or in the village. It is only a lawful excuse to have these things about your person i.e. re-enacting, when you are actually re-enacting or safe and secure/out of sight, in your vehicle, going to and from an event, or locked up in your home.
3. The Scottish Swords Bill bans the sales etc. of swords etc. with exceptions for dancing and re-enactment etc. etc. BUT the Home Secretary can change these exceptions at his ‘whim’ and ‘caprice’ by laying an Order before Parliament. Therefore ‘the price of freedom is eternal vigilance’.
4. Mr Whiting recommended that re-enactors should carry evidence with them that they are a member of a recognised re-enactment group - ideally a member of NAReS AND that you are going to an event/from an event, and therefore have with you a copy of the Society events list or Newsletter with the event date/location to prove your journey is valid for re-enactment purposes, should you be stopped by a policeman, who queries what you have in your possession/in your vehicle.
5. In response to a question from the floor about artillery Mr Whiting confirmed that where a re-enactment groups artillery was in effect a shotgun (i.e. barrel length longer than 24 inches and diameter less than 2 inches) then the possessor of the gun has to have a shotgun license. Thus the ‘gun captain’ i.e. the person who fires the cannon ought to be in possession of a shotgun license. For the rest of the gun crew all who in any way touch or handle gun powder must have some sort of explosives/black powder license, whether it is acquire only or acquire and keep. Thus the person who brings the gun powder from the box, and the person who loads it into the cannon, need explosives licenses and the gun captain needs one as well as well as a shotgun license. This is not withstanding that a person who may take the gun barrels away from an event and store them between events also has to have the barrels on his or her shotgun license. Command and control of a ‘shotgun’ albeit wheeled is ‘possession’ for the terms of the firearms legislation. This does not refer to ownership. Therefore the only gunners who do not need to be licensed are those who never touch gunpowder i.e. they might move the trail or the wheels, under the command of the gun captain, or they might worm out or sponge, as long as they are not handling or touching gunpowder.

The salient points from the Violent Crime Reduction Act as pertinent to Re-enactors

Crucial element is Section 35. Section 34 creates various offences relating to the sale, transfer, manufacture and/or import of ‘realistic imitation firearms’. Section 35 creates various defences to Section 34 offences. Within this there are crucial safeguards for re-enactors that shall permit them to still obtain both blank firing and de-activated items for the purposes of re-enactment.

Firstly Section 35 (1) - ‘it shall be a defence for a person charged with an offence under Section 34 in respect of any conduct to show that the conduct was for the purpose only of making the imitation firearm in question available for one or more of the purposes specified in sub-section 2’.

Section 35 (2) (e) states that one of these purposes is ‘the organisation and holding of historical re-enactments organised and held by the person specified or described for the purpose of this section by Regulation made by the Secretary of State’.

Section 35 (7) states that for the purpose of this section ‘historical re-enactment means any presentation or other event held for the purposes of re-enacting an event from the past or of illustrating conduct from a particular time or period in the past’.

Apparently it has also been agreed by the Secretary of State (Home Office) that they will henceforth recognise any group regardless of size in respect of Section 35 (7) - ‘historical re-enactment’-provided it has third party public liability insurances in the name of that group or society. Re-enactors are therefore to be recognised in law as a specific legal activity with a workable definition. The baseline is that whatever the ‘historic activity ‘ being ‘illustrated’, from whatever period, all it needs to do is fit the requirements of Section 35 (7) and carry third party public liability insurances in its name. It is to be an offence to put on any form of ‘public’ display, even if for private and on private land, without such insurances. All re-enactments groups will automatically fulfil this definition in complying with the NAReS requirement for insurance.

Section 36 is a long section but ‘realistic imitation firearms’ crucially EXCLUDES de-activated and antique firearms (Section 36) (1) (b). Thus the legislation allows re-enactors to continue purchasing, transferring, importing and even within the law manufacturing blank firing ‘realistic imitation firearms’. Equally it does not affect deactivated and antique firearms at all. Finally it defines the legal meaning of ‘re-enactor’ in it’s widest possible form.

The Bill was given Royal assent and became an Act on 8 November 2006, but the Sections will be brought into force by the Secretary of State by Regulation (who will also issue further detailed guidance) over the course of the next six to eight months or so.

Article compiled from Notes taken contemporaneously at the event by
Philip Clark, Company Secretary to American Civil War Society

The above article first appeared in the ACWS Newsletter, Winter 2007