Mr Bartwell, the appellant was a 54-year-old man who loved firearms. He was, on his own admission, obsessed with them. So much so that he converted weapons as a hobby.

In R v Bartwell [2020] EWCA Crim 62, he pleaded guilty to seven counts under the Firearms Act having been in possession of four converted blank firing pistols (prohibited weapons), a sawn-off shotgun and ammunition.

Following various incidents involving the buying, selling and importing of guns and pistols, police searched A’s house in November 2019. In his bedroom, they found a box containing firearms, ammunition and component parts and in his garden shed was being used as a workshop containing various tools and a test ‘firing centre’. The police ballistic examiner confirmed the firearms had been converted, or were in the process of being converted, to fire live ammunition. All were prohibited under the Firearms Act 1968 and potentially lethal.

A – who was absent when the search took place - voluntarily attended the police station later that day where he was cautioned. He said: “I am in a world of trouble over all this. I know I'll be going to prison this time as I've converted some of the weapons to real firearms. I have to own up to what I've done.”

He explained what he had been doing and how, and that he had a genuine interest in firearms, “an obsession”, in his own words. He pleaded guilty to the charges against him.

Sentencing

At the hearing, he put forward a basis of plea – which the prosecution accepted – that he converted weapons as a hobby, those weapons were not distributed, he had no connection with violence or organised crime, he had never sold or given away any of the altered firearms, and had no intention of doing so. These, it was argued, amounted to ‘exceptional circumstances’ such that the mandatory minimum sentence of 5 years should not apply.

Section 51A(2) of the Firearms Act states:

“The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.”

The sentencing judge agreed that there were exceptional circumstances, although he did concede that the case was serious. For example, the weapons were genuine, he had ‘relevant’ previous conviction and the firearms had not been securely stored. Had they been stolen they would have found a ready market.

Nonetheless, he took a starting point of 5 years imprisonment and then, in view of what he considered to be ‘exceptional circumstances’, gave credit for A’s guilty pleas and reduced the sentences to two-and-a-half years' imprisonment on four counts and 18 months on the remaining three (to be served concurrently). This gave an overall reduced prison term of 30 months.

The appeal

The Attorney General argued that the sentencing imposed was unduly lenient on the basis that there was nothing exceptional in either the offence or the appellant himself.

The weapons had, for example, been converted to operational firearms even though unused – with no intention to use them; there was ammunition which could be discharged by the firearms; recent convictions for possession of firearms was an aggravating ‘circumstance’; and the weapons were not securely stored.

However, A's counsel argued that the sentencing judge's finding that there were exceptional circumstances was the equivalent of the exercise of a discretion which was open to him on the unusual facts as he found them; and there was also substantial mitigation.

Simon LJ, who handed down the Court of Appeal judgment, commented that the difficulty with an exceptionality test is that it does not provide any clear standard from which the exceptional case will differ.

The court found that the circumstances in this case were not exceptional. Each converted firearm was, after all, a potentially lethal weapon; A knew this was serious criminality and the danger the guns posed in the wrong hands; and he understood the lack of security in relation to their storage.

The judge had therefore erred in taking the view that there were exceptional circumstances on the basis that it was not the 'ordinary type of case'.

The appropriate test was whether imposing the minimum sentence (of 5 years) would lead to an arbitrary or disproportionate sentence, bearing in mind the clear statutory intent that strong deterrent sentences should be passed for offences to which s51A Firearms Act applied.

Five of the seven original sentences were therefore quashed and a 5-year term substituted for the relevant counts. The remaining two were unaffected. The overall prison term was effectively doubled to five years.

Guidance

Defence lawyers will find useful Simon J’s reiteration of the appeal court’s eight points of guidance set out in last year’s ruling in Nancarrow [2019] 2 Cr App R(S) 4. These were considered relevant to sentencing where section 51A(2) applies:

The purpose of a mandatory minimum is to act as a deterrent.
Circumstances are exceptional if the imposition of a 5-year sentence would be arbitrary and disproportionate.
Such circumstances must be truly exceptional to avoid undermining the intention of Parliament.
The court should take a holistic approach and consider whether the collective impact of all the relevant circumstances make the case exceptional.
The court should always have regard to four questions (see Avis): what sort of weapon it was? What use was made of it? With what intention did the offender possess it? What was the offender's record?
The circumstances of the offender are important.
Each case is fact specific and limited assistance will be gained from referring the court to decisions in cases materially identical.
Unless the judge is clearly wrong in identifying exceptional circumstances where they do not exist; or clearly wrong in identifying exceptional circumstances where they do exist, the court will not readily interfere.