The recent prosecution of Manuel Wallner culminated with Swansea Crown Court deciding exceptional circumstances existed to justify not sentencing Mr. Wallner to at least 5 years in prison for possession of prohibited weapons. Any finding that deviates from the statutory minimum is rare in firearms cases. However, Mr. Wallner’s case was exceptional due to a number of factors, including a deeply concerning communication breakdown between French and UK border officials.
In June 2014, Mr. Wallner travelled to Wales for a pre-booked £4,200 “close protection and hostile environment operation course” offered by a specialist security training company. His decision to bring his personal weapons from Austria to Wales would lead to him being arrested and charged with multiple allegations, including two of possession of prohibited weapons.
Before travelling to Wales, Mr. Wallner sought advice from local Austrian government authorities on the permits required to transport his firearms to the UK. He already held Austrian firearms permits for his semi-automatic assault rifle and semi-automatic Beretta pistol and was told that in addition he required a European Weapons Pass, which he duly obtained. Whilst these documents allow holders to travel with firearms for specific purposes between most EU countries, they are necessary, but not sufficient, to authorise EU nationals to bring prohibited firearms into the UK. Section 17 Firearms (Amendment) Act 1988 stipulates that all overseas residents must also have a visitor’s permit to travel to the UK with their weapons.
Relying on the advice he obtained from the Austrian authorities, Mr. Wallner drove to Wales unaware he was unlawfully transporting his personal weapons into the UK. When he arrived in Calais to catch a car ferry to Dover, Mr. Wallner declared his firearms to French authorities, which triggered a procedure known as ‘Code 100’, whereby the Ferry Operators took specified security steps. Crucially, the intelligence that Mr. Wallner was carrying firearms was apparently not conveyed to UK Border Agency staff and he was able to proceed into the UK without being challenged or having his weapons being seized. He was only arrested after showing his weapons to other people attending the course.
Section 51A (2) Firearms Act 1968 requires courts to impose a custodial sentence of at least five years against any adult found guilty of possessing prohibited firearms unless exceptional circumstances apply. English courts have traditionally been reluctant to grant exceptional circumstances in firearms cases. Exceptional circumstances were however found in last year’s case of Zhekov, where a Bulgarian Lorry driver was found in possession of a prohibited gun when he was stopped in Dover. The Court of Appeal judgment relied on the interpretation of ‘deterrence’ adopted in the 2005 case of Rehman and Wood that “if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent
effect upon him.”
Mr. Wallner’s exceptional circumstances
Mr. Wallner entered a plea of guilty but argued his case involved exceptional circumstances that justified departing from the statutory minimum of five years in prison. His submissions were based on multiple grounds.
Mr. Wallner had followed advice from a government official in Austria to apply for a European Weapons Pass, which he thought enabled him to transport his weapons to England. He had a legitimate reason for travelling to the UK for his pre-booked course and had declared his weapons to the French authorities at Calais. He had lawfully purchased all of his weapons in Austria and legally held all his firearms, which were in a safe condition when they were seized by police. He had co-operated throughout the Police investigation and admitted his possession of all the items, providing a full explanation in his interview under caution. Further, a promotional video for the course featured combatants wielding heavy artillery and written material from the course providers stated attendees could “bring their own kit”, which Mr. Wallner interpreted as an invitation to bring his own weapons. Mr. Wallner’s personal background was also relevant to his submissions. He had been promoted to the rank of Corporal during his national service in the Austrian Army and had passed psychological tests to obtain his Austrian Firearms Permit.
The Court’s decision
Mr. Wallner was sentenced to a period of 18 months imprisonment, suspended for 2 years. His weapons were confiscated. Although Mr. Wallner avoided an immediate prison sentence, he now has a criminal record which will remain on the police national computer until he reaches the age of 100. This is likely to restrict his ability to fulfil his ambition of working in personal security. It may also impede his ability to travel.
An important lesson arising from Mr. Wallner’s case is that EU nationals intending to transport weapons within the EU should always consult the authorities within the jurisdiction they are intending to visit rather than relying on advice from local officials in their home state. Although Mr. Wallner followed advice given in Austria, he should never have been allowed to progress as far as the UK unchallenged by government authorities. The reasons for the fundamental communication breakdown between French and UK officials must be identified and remedied to ensure UK border security standards are upheld.
Some may wonder why in these circumstances the Crown Prosecution Service felt it was necessary to mount a prosecution. Convicting those who commit offences in sheer inadvertence has no deterrent effect.
By Aileen Colhoun, a Partner in the Criminal Law Division of Hickman and Rose.