Report on Mandatory Sentences - Law Reform Commission

used, and (b) a vehicle the means of propulsion of which is electrical or partly electrical and partly
mechanical. It does not, however, include a tramcar or other vehicles running on permanent rails.
(iii)
Having with Him or Her
4.64 The term “have” is not defined by the 1964 Act. The fact that the term is used with the words
“with him or her” suggests, however, that the offender must have actual possession of the firearm or
imitation firearm at the time when he or she is taking the particular vehicle.
(iv)
A Firearm or Imitation Firearm
4.65 Section 1(1) of the Firearms Act 1925, as amended, 119 provides that the term “firearm” means:
(a) a lethal firearm or other weapon of any description from which any shot, bullet or other missile can be
discharged; (b) an air gun (including an air rifle and air pistol) with a muzzle energy greater than one joule
or any other weapon incorporating a barrel from which any projectile can be discharged with such muzzle
energy; (c) a crossbow; (d) any type of stun gun or other weapon causing any shock or other disablement
to a person by means of electricity or any other kind of energy emission; (e) a prohibited weapon; 120 and
(f) any article which would be a firearm under any of the foregoing paragraphs but for the fact that, owing
to the lack of necessary component part or parts or to any other defect or condition, it is incapable of
discharging a shot, bullet or other missile or projectile or of causing a shock or other disablement; and (g)
except where the context otherwise requires, includes a component part of any article referred to in
section 1.
4.66 The term “imitation firearm” is not defined by the Act. Presumably, however, the term includes
any article which is calculated, or is reasonably likely, to give the person perceiving it to believe that it is a
real firearm. As noted by Finnegan J in The People (DPP) v Clail, 121 it makes very little difference to a
person who is confronted in the course of a crime with a weapon that, unbeknownst to him or her, it is
non-functioning. The crucial issue is that an imitation firearm may be an equally effective means of
threatening a person and/or pursuing an ulterior objective.
(c) Section 27 of the Firearms Act 1964
4.67 Section 27 of the Firearms Act 1964, as amended, 122 prohibits the use or production of a firearm
or imitation firearm 123 for the purpose of resisting arrest 124 or aiding the escape or rescue of the person or
another person from lawful custody. 125 As the Court of Criminal Appeal has not examined section 27 in
recent times, it is difficult to determine the exact implications of the elements of the offence.
(i)
Use or Produce
4.68 Neither the term “use” nor the term “produce” is defined by the 1964 Act. The ordinary meaning
of the term “use” is to take, hold, deploy or employ. 126 In The People (DPP) v Curtin, 127 the Court of
Criminal Appeal referred to the “use” of the firearm in terms of it having been discharged. The ordinary
119
120
121
122
123
124
125
126
127
Section 26 of the Criminal Justice Act 2006.
Section 1 of the Firearms Act 1925 provides that the term “prohibited weapon” means and includes “any
weapon of whatever description designed for the discharge of any noxious liquid, noxious gas, or other
noxious thing, and also any ammunition (whether for any such weapon as aforesaid or for any other weapon)
which contains or is designed or adapted to contain any noxious liquid, noxious gas, or other noxious thing.”
The People (DPP) v Clail [2009] IECCA 13.
Section 58 of the Criminal Justice Act 2006.
The meaning of the terms “firearm” and “imitation firearm” have been considered at paragraphs 4.65 and 4.66
and will not be considered again here.
Section 27(1)(a) of the Firearms Act 1964, as amended.
Section 27(1)(b) of the Firearms Act 1964, as amended.
The New Oxford Dictionary of English (Oxford University Press, 2001) at 2038.
The People (DPP) v Curtin [2010] IECCA 54.
143