LORD ADVOCATES REFERENCE NO.1 OF 2020 [2020] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> LORD ADVOCATES REFERENCE NO.1 OF 2020 [2020] ScotHC HCJAC_25 (17 June 2020) URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_25.html Cite as: 2020 SCCR 303, 2020 SLT 1215, [2020] HCJAC 25, [2020] ScotHC HCJAC_25, 2020 GWD 21-283, 2020 JC 301

[1] This reference raises a sharp point about the circumstances in which a firearm may

be said to be disguised as another object for the purposes of section 5(1A)(a) of the Firearms

“(1A) Subject to section 5A of this Act, a person commits an offence if, without

[2] In the trial to which this reference relates the accused was charged with possession of

a firearm without a firearms certificate, contrary to section 1(1)(a) of the 1968 Act. It was a

matter of agreement that he was in possession of such a weapon, namely a stun gun, that he

did not have a firearms certificate and that he should be convicted of the section 1 offence.

“you did have in your possession, without the authority of the Secretary of State or

the Scottish Ministers, a firearm which was disguised as another object, namely a

It was admitted that he did not have the requisite authority but it was maintained that the

device, which operated as both a stun gun and a torch, was not disguised as the latter and

that the accused should not be convicted of the section 5 offence, of which he was in due

course acquitted. The sole issue at trial therefore was whether the stun gun in question was

[3] Julia Bilsland, a forensic scientist with the Scottish Police Authority working in the

firearms section gave evidence in support of a report she had submitted. The item in

question had the appearance of a black torch, within a pouch. The pouch was made of black

fabric with an integrated belt loop containing the item. The words “police” and “flashlight”

were written on opposite sides. No marking identified the item as a stun gun or indicated

that any given switch would operate a stun function. The torch function was activated by

switching a three position switch to the upper position. There was an on/off switch at the

base of the item, which operated as a safety device for the stun function. If this was at “on”,

and the three position switch was in the lowest position, depression of a button on the

opposite side would operate the stun function, although there was no marking at either

switch to indicate that it would operate this function or that there was such a function which

could be operated in this way. The unit worked as a torch when set accordingly. The torch

[4] The Advocate Depute focused on the appearance of the item as a torch, and said to

the jury: “So if it looked like a torch to you then I ask you to find that it is a disguised stun

gun”. It is perhaps not entirely fair to suggest, as counsel for the accused suggested, that the

crown position was simply that “if it looks like a torch is must be disguised”, because the

sentence we have quoted was used in the context of reminding the jury that they had seen

Miss Bilsland show how the functions of the item could be made to operate. However, there

was little more to the submissions made by the Advocate Depute at trial; and there was no

reliance placed either on the words “police” and “flashlight on the item or on the absence of

any marking on the item indicating that it had a stun gun function.

[5] The defence speech focused on the fact that the item had two operational functions.

It was suggested that the combination of a stun gun and a torch was a “sensible”

combination of functions, at least in countries where a stun gun was legal, in the same way

that the combination of a rape alarm and a torch might be. A Swiss army knife may contain

multiple functions but was not disguised only as a knife – “it just happens to be more than

one function grouped together in a sensible combination.” The purpose of referring to a

“sensible” combination such as this was contrasted with a combination such as a bunch of

flowers and a stun gun: “that’s not a sensible combination, it doesn’t make any sense, I’m

there to deceive with having the bunch of flowers”. Counsel went on to say:

“If things are grouped together and have a sensible coherent point to be combined

into one object that, I suggest, mitigates against it being a disguise because you can

“But I ask you to bring your care and your full faculties to bear on the question of

what is a disguise and what is simply a dual-purpose item. Is it beyond a sensible

argument that it’s not a disguise? It’s simply a dual-purpose weapon.”

(From his own typed notes of his speech counsel suggested the question he had asked was

in fact ““is it beyond sensible argument that this is not a disguise, but a justifiable form of a

“If it was a fake torch so it looked like a torch but wasn’t a torch, that’s a disguised

weapon, no problem with that. If it had some daft second function, the plastic

flowers or whatever, that’s a disguised weapon”, later adding “if it’s a daft

[7] The trial judge directed the jury that the key question relating to the item was

“[it] was dis guised as a torch or whether it was instead a dual purpose item or

weapon. If it was, on your view of the facts, so disguised as a torch then you will

require to convict. But in so doing you will need to give a common sense meaning to

the word disguise and I’ll come to this shortly. If it was, on view of the facts, a

dual-purpose item, you’ll require to acquit on charge 2 and convict instead on

[8] The trial judge then directed the jury that the word “disguise” should be given its

ordinary meaning, involving an element of concealment, or covertness or pretending. In

relation to the evidence of Ms Bilsland, he pointed out that she had accepted in cross-

examination that the pairing of a stun gun and a torch was a “sensible pairing”, like a torch

and a panic alarm. He went on to say that the jury “will bear in mind her evidence

supporting [the defence] position …. on the stun gun’s extra or additional function. And if

you find that part of her evidence persuasive you must also acquit on charge 2”.

[9] He went on to say that counsel for the defence had “correctly in my view” invited the

jury to take a common sense approach to the issue of disguise, “asking yourselves what is a

[10] The jury duly acquitted of charge 2. The directions referred to are challenged in this

reference by the Lord Advocate in which the following questions are posed:

Did the trial judge err in directing the jury to acquit the accused of charge 2 -

possessing a stun gun disguised as another object, namely a torch - if Crown Label

16 was, on their view of the facts, a dual purpose item or weapon?

2. Is it a defence to a charge of possessing a disguised firearm that the firearm is

3. Where a firearm has the appearance of another object, does the fact that it

functions as that other object as well as a firearm deprive its appearance of any

4. How should a jury be directed on the meaning of "disguised", in the context

5. What is the relevance, if any, of dual purpose in determining whether a

[11] The trial judge erred in giving the directions which he did. The effect was to direct

the jury that if the object had a dual function it could not be disguised, and that if they

concluded that the item had a dual purpose, capable of functioning under either, they

required to acquit. It was an error to direct the jury that if they concluded that the object

was a dual purpose item, they should acquit. Indeed, juries may be directed that, in

determining whether or not the firearm is disguised as another object, they may take into

account its ability to function as another object as an element of disguise. The first question

in the reference fell to be answered in the affirmative, and questions two and three in the

[12] As to question 4, juries should be directed that the question of whether the firearm is

“disguised as another object” is a matter of fact for them to determine. They may usefully

be invited to address the following questions: (i) does the object look like a firearm? (ii) does

it look like another object? (iii) has it been made to look like another object to prevent, or to

attempt to prevent, it from being recognised as a firearm? The approach taken by the sheriff

and sift judges in Morag McQuillan v HMA HCA/2019/000564/XC was to be commended.

[13] In relation to question 5, the fact that a firearm has a “dual purpose” does not mean

that it cannot be regarded as “disguised as another object”. If the firearm appears to be

“another object” then it may properly be regarded as “disguised as another object” even if it

also functions as that other object. Indeed, the fact that it functions as that other object as

well as being a firearm may enhance the element of disguise. The item in the present case

gave no indication that it was also a firearm. It was marked only as a torch, with the word

“police” lending a spurious air of authority. There was no marking to indicate that it was

[14] It was disputed that either the address by counsel for the defence or the charge by

the trial judge had presented the jury with a stark choice of the kind characterised in the

reference. The respondent’s position had been that the only question for the jury was

whether the Crown had proved that the firearm was disguised as another object. It was not

suggested that the mere existence of dual or multiple purpose had any impact on the

question of disguise. The reference to other functions was qualified by the importance or

value that combining those other functions added to the stun gun. If the combined functions

were sensible accumulations of powers that served the same end, (rape alarms and

torchlight functions with the stun gun added for example), then while the resultant item

might have a dominant physical characteristic (like being torch shaped) there might be no

intention to deceive an onlooker about the nature of the device. A comparison was drawn

with a Swiss Army knife where the presence of scissors or a saw blade did not mean that the

knife was a saw or scissors disguised to look like a knife. Counsel had posed the question to

the jury “is it beyond sensible argument that this is not a disguise, but a justifiable form of a

[15] The Crown submission was essentially that because the item looked more like a torch

than anything else then it was disguised. Counsel for the accused also commended the

approach in McQuillan where the sheriff described disguise as meaning that something had

been done to the appearance to deceive the viewer about the item’s true identity or

[16] Question 1: Did the trial judge err in directing the jury to acquit the accused of

charge 2 - possessing a stun gun disguised as another object, namely a torch - if Crown

Label 16 was, on their view of the facts, a dual purpose item or weapon?

[17] Given that the question whether the case was presented by the defence as being

“either disguised or multipurpose, but not both” was disputed, the court obtained

transcripts of the speeches. It appears that it was the intention of counsel for the defence to

suggest (i) that the situation in this case was different from the more blatant example of, for

example, a firearm presented, but incapable of operating, as a mobile phone; and (ii) that the

existence of parallel working functions was relevant to whether an item should be

categorised as “disguised”, whilst not being determinative of that question. Nevertheless,

“But I ask you to bring your care and your full faculties to bear on the question of

what is a disguise and what is simply a dual-purpose item. Is it beyond a sensible

argument that it’s not a disguise? It’s simply a dual-purpose weapon.”

does tend to suggest a binary choice, however that question was phrased.

[18] In any event, whatever the intentions of counsel, it is clear that the trial judge

understood the case to have been presented on this basis, saying in his report:

“it was made plain at the outset of the trial before the jury was empanelled that the

short and focused issue for trial was whether or not the item Crown label 16 was a

It is abundantly clear that trial judge presented the case as one where the jury either

concluded that the weapon was disguised, in which case they could convict; or they

concluded that it was an item where two functions were reasonably combined, in which case

they would have to acquit of the second charge. The trial judge did therefore direct the jury

in the way suggested in the first reference question. In so directing the jury he fell into error,

[19] Question 2: Is it a defence to a charge of possessing a disguised firearm that the

[20] Question 3: Where a firearm has the appearance of another object, does the fact that

it functions as that other object as well as a firearm deprive its appearance of any element of

[21] Question 4. How should a jury be directed on the meaning of "disguised", in the

context of Section 5(1A)(a) of the Firearms Act 1968 as amended? and

Question 5: What is the relevance, if any, of dual purpose in determining whether a firearm

[22] It is not a defence to a charge of possessing a disguised firearm that the firearm is a

"dual purpose item or weapon”, nor does the fact that a firearm possessing the appearance

of another item functions also as that other item necessarily deprive its appearance of any

[23] The offence is committed by being in possession of a firearm which “is disguised” as

another object. This requires a straightforward objective assessment of whether the item is

presented in such a way as to conceal that amongst its functions is that of a firearm.

Whether a firearm is “disguised” as another item is critically a question of fact for the jury to

determine on all the facts of the case. Those facts may include the appearance of the item in

question; whether it has an appearance of a firearm or of another item; whether it functions

as another item as well as a firearm; whether its function as a firearm, and how to operate

that function, is clearly indicated on the item; and so on. If the item is labelled in any way,

how it is labelled – in this case for example, bearing only the words “police” and “torch”,

may be relevant. Whether there may be a reason to disguise the item as something else may

also be relevant. Against the whole facts of the case the jury must determine whether the

[24] The normal meanings of the word “disguise” are to be adopted, and the matter must

be determined from the perspective of the ordinary person in the street. Would the ordinary

observer appreciate that the item was a weapon, whatever other function it may be capable

of performing? Counsel for the accused was correct, in his speech, to say that disguise

implies deception; that is in our view implicit in all the definitions of the word, which in the

“Concealment of reality under a false appearance; deliberately alter the appearance

of a thing so as to mislead or deceive; exhibit in a fake light; misrepresent; conceal

the nature or existence of anything by a counterfeit show or appearance”.

[25] At one extreme will be the obvious disguise, such as a firearm presented in the form

of a mobile phone but incapable of operating as such. At the other extreme may be an item

which clearly looks like a firearm, has markings identifying it as such, and showing how it

operates by a button or switch indicating its firearm function, but which is also capable of

performing another function. Whether the combination of functions is “sensible” or

otherwise is neither here nor there. In any event, if one of the functions is an illegal one, it is

difficult to see how any combination which includes that function can be described as

“sensible”. A firearm presented as a mobile phone and capable of operating as such may

nevertheless be within the category of a firearm disguised as something else. The same

applies where the dual function is torch and firearm, or anything else.

[26] In the unreported case of McQuillan v HMA the sheriff directed the jury that the issue

“whether the normal or anticipated appearance of something has been changed in

order to try to conceal its true identity or character and to make it appear to be

something different from what it really is … You might think …that the critical

question is … whether it has been given the appearance of a torch, which it would

otherwise not be expected to have, for the purpose of concealing the fact that it is also

As the sheriff in that case indicated in his report, the question was not whether such an item

“whether it had been given the appearance of a device having one function (a torch)

for the purpose of disguising the fact that it had another function (a firearm). “

[27] We consider the sheriff’s approach in that case was correct. The simple question is

whether the item is presented in such a way as to disguise or conceal its function as a

firearm. We agree with the sheriff in McQuillan that it might be suggested to the jury that

Does the item look to you like a firearm, specifically a [stun gun or other firearm as

Does the item look to you like something else, eg a torch or mobile phone?

Has it been made to look like another object to prevent, or to attempt to prevent, it

[28] It follows that Questions (1), (2) and (3) should be answered respectively: Yes; No;

No. As to Question (4), the jury should be directed in accordance with paragraphs [23]-[27]

above. The answer to Question 5 is that the fact that a firearm is incorporated into a dual

purpose item does not mean that it cannot be regarded as a firearm “disguised as another

object”. The dual purpose of the item may, in an appropriate case, be among the many

factors to be considered by the jury in reaching their decision on whether it is a firearm

disguised as another object (see paragraph [23] above).

Scottish High Court of Justiciary Decisons