Lethality and the law

EVERY TIME a firearms expert witness stands in the box in court and starts to give evidence, the old definition of a firearm gets trotted out: “a lethal barrelled weapon capable of discharging a…” (Section 57, Firearms Act 1968). And then the argument starts.

Whether or not a thing is a weapon is fairly easily distinguished, and certainly the presence or otherwise of a barrel should be easy enough to prove. However, the word ‘lethal’ is prone to a huge amount of usually misguided argument.

For a start, the question ‘lethal to what?’ is settled.

In R versus Spray at Lancaster Crown Court in 1994, it was ruled that this must mean lethal to human beings, not a mouse nor an elephant. But how should we define what is lethal to a human being, given the vast difference in force necessary to kill a little old lady and a fit, tough young soldier?

Usually, this is argued via the measurement in foot/pounds of kinetic energy of the projectile; kinetic energy is not the most reliable quantifier of lethal potential, but it does have the merit of being readily and accurately measured.

The formula is simple: take the weight of the projectile or bullet in grains (there are 7,000 grains in a pound) and multiply by the velocity (in feet per second) squared, then divide by 450,240. There is, of course, no means of back-measuring the velocity of the projectile at the moment it strikes the body of the deceased, but the common rule is to take the muzzle velocity of a similar cartridge fired from a similar weapon, on the basis that at most normal murder ranges the difference between muzzle velocity and impact velocity will be minimal. The Forensic Science Service keeps a wide variety of reference weapons with which to carry out such tests.

Right, then, how many foot/pounds are lethal? This is where the problems start.

Obviously, if the weapon concerned is not operating at a lethal level there can be a good defence, but are we to take the average, the maximum or the minimum foot/poundage necessary to kill?

To give some idea of the extremes, the military has calculated that to be reasonably certain of a first-time kill on a normally fit soldier (possibly wearing thick webbing, etc) and with a hit in the head or trunk, a level of some 350 foot/pounds is needed.

This is the muzzle energy of a 9mm Parabellum pistol and submachine-gun round, which is the lowest-powered military issue cartridge in our and dozens of other armies.

At the other extreme, the records show that some time ago a small girl who was hit in the chest by an air-rifle pellet was killed by it, even though it showed a muzzle energy of just under 5 foot/pounds.

This last figure is bizarre, because it is well under the limits set by the Dangerous Air Weapon Rules 1969, which allow an air rifle a maximum muzzle energy of 12 f/p and an air pistol 6 f/p before they are drawn into the licensing regulations (ie, the Home Office and their police advisers have calculated that such low figures are, for all practical purposes, harmless and no restriction or regulation on their possession is necessary other than the obvious ones of ‘not by the underage’ and so on.)

Understandably, prosecutions are keen on quoting the above case of the little girl since almost any weapon made can therefore be claimed to be lethal, and defences quote the military statistic as a more reasonable level.

The commonest weapon in civilian hands is the humble .22 rimfire rifle, and it is so low-powered that it is the only calibre which the law allows to be possessed in self-loading form. But there is on record in the United States a case where a woman, driving a convertible car with the hood down along a coast road, was killed by a shot fired by a yachtsman at a marauding gull from almost a mile offshore.

In my opinion, the much-quoted case of the little girl hit in the chest was a total freak, and she must have had a weak chest wall and a very delicate constitution because to take such a low kinetic energy figure as ‘normally lethal’ is a travesty of the truth.

Fair case law cannot be made by the quoting of bizarre extremes as if they were the common rule, and the usage of a fair average of foot/poundage figures which are found to result in death more often than not would, I believe, sit more easily with a juror’s conscience.

Moore and Gooderham, and similar cases, all come down to the point that lethality, or not, must in each case depend on the circumstances, and this should take into account the physical age and fitness of the victim, the range involved and other personal factors as well as the bare facts of muzzle energy.

Firearms law in England is draconian in the extreme, and yet the normal low-powered air weapon has never had to be licensed; this is because the Home Office has conceded – as, in common sense, it had to – that in the normal, reasonable, day-to-day usage of such weapons there is no danger to life and limb.

We may be certain that, after Hungerford and Dunblane, were this not the case, such weapons would have been restricted years ago, but they have not, and prosecutions should not be allowed to contend that they are something which they are not.