UK FPS Limits - New Govt Guidelines

[RSM]

Although paintball guns fire 4g balls of paint at 300fps (a rediculous amount of energy) they get away with it due to the frangible nature of the ammunition, however if you went digging you would find there have actually been deaths attributed to people being hit by paintballs that fail to rupture or have hit sensitive areas of the body at close range ie someone suffered a stroke and later died from being struck in the back of the neck with a paintball round a few years ago.

[Kontar]

Hi everyone, I am a university law student and just wanted to throw in a little about consent to an assault…

 

*Disclaimer*

This is based on knowledge of criminal law as taught in my 2006 Law BA course, which satisfies the "exemption subject" criteria issued by the bar council and law society. Basically that means that I should know as much about the subject as needed to go into practice (scary thought) but this is far from saying that I am actually a qualified lawyer in this field. I have revised the case law mentioned and ensured that no new developments have affected this subject. I am also assuming at least a basic understanding of the English legal system, including the system of precedent in the common law (I am sorry that I cannot write a complete and far reaching article on this issue, but that may have to run to book length!)

*/End Disclaimer*

 

To start, some legal basics: assault is actually legally defined as something very different from what we are discussing here, instead we are talking about "assault occasioning actual body harm", as defined in section 47 of the Offences Against the Person Act 1861. This is relevant as you can consent to a pure assault, which is essentially making someone fear imminent harm to their person and there is also no question about whether you can consent to a mere “battery”, which is effectively touching someone.

 

The problem here is that Airsoft does not merely involve “touching” (which includes touching that is indirect and so could technically have included Airsoft were it to cause no injury whatsoever) but actual harm (defined as injury which is beyond one which is merely “transient” or “insignificant”) as bruising or blood blisters is often left from high powered Airsoft rifles which this discussion concerns. This means that it would qualify for the section 47 offence mentioned above or, if the shot leaves an open wound or other serious injury, the more serious section 20 or 18 offences of wounding with intent or recklessness found in the same act.

 

Now on to the case law which is sadly quite complex.

 

R v Brown

 

The leading case is the House of Lords case of R v Brown (citations for those who want to know more are: [1994] 1 A.C. 212; [1993] 2 W.L.R. 556; [1993] 2 All E.R. 75). This case involved a sadomasochistic group of men who engaged in various consenting but “untoward” practices with each other, involving fish hooks and other such “tools”. These activities were carefully videotaped for the participants own enjoyment, but they were unfortunately found by the police who decided that they were witnessing horrendous acts of torture and therefore promptly launched prosecutions against all of the involved parties. The participants all argued that they consented to the various injuries caused to them, yet the House of Lords nonetheless ruled that they were guilty of the section 47 OAPA 1861 charged. They ruled that it would be against the public interest to allow people to consent to any injury beyond that of “common assault” (another term for a “battery” described above) without “good reason”, with Lord Mustill’s opinion considering when such a “good reason” may arise. Though this was not only dissenting but also obiter (i.e. not directly relevant to the case being decided) it is probably the most accurate reflection of the current law on this issue, as the other Law Lords mostly focused on consent in the sexual violence sphere. He outlines a number of different categories for when consent to harm may be relevant. Which of these categories would you say Airsoft fits into?

 

“Contact” Sports

 

With these it is possible to consent to some level of harm, to quote him on the issue:

 

“In the contact sports each player knows and by taking part agrees that an opponent may from time to time inflict upon his body (for example by a rugby tackle) what would otherwise be a painful battery. By taking part he also assumes the risk that the deliberate contact may have unintended effects, conceivably of sufficient severity to amount to grievous bodily harm. But he does not agree that this more serious kind of injury may be inflicted deliberately.”

 

Thus, if Airsoft were to be classified as such an activity, we may well be able to at least nominally consent to the “assaults” occurring whenever we are shot by an air rifle. But, if they are capable of causing any serious injury, which we must all admit that they can do, it would be extremely dangerous to use them. Shooting someone is certainly “deliberate”, and therefore if a player were to hit someone and cause them serious injury, their consent would be for nought. This creates the odd situation where you are fine using such single shot rifles up until the point at which you hurt someone. This is not a situation in which we want to find ourselves. Also note that although many here would indeed consider Airsoft a sport it may be hard to convince a judge of that fact!

 

“Dangerous Pastimes”

 

Unfortunately Lord Mustill does not explore this issue in any depth beyond merely mentioning it as a situation in which some higher level of consent is possible. If you are willing to brave goal time and have millions to spend on a brilliant criminal defence, please feel free to explore this category!

 

Conclusion on R v Brown

 

So to conclude this section: you can only consent to any form of harm (which would definitely include that caused by a 500fps rifle) if the law thinks there is some good reason for you to be able to do so. These have included sports, in so far as the harm isn’t excessive and deliberate and even rough horseplay (as, for example, where a group of RAF officers set each other alight while drunk in order to “test” their flame proof suits. They were, in fact, quite flammable). It would therefore be a matter to be decided on the facts and in particular regard to public interest and policy, which means that someone would have to be charged and the matter explored, though it would be likely to go all the way to the House of Lords. I doubt that anyone has the money and courage to do such a thing, I would strongly NOT recommend it, as the judges may have little sympathy for people deliberately shooting each other with weapons that they know can be dangerous.

 

R v Wilson

R v Wilson (citations: [1997] Q.B. 47; [1996] 3 W.L.R. 125) has been mentioned by some in the above thread, though unfortunately they are wrong to cite it in these circumstances. This case concerned a loving couple, one of which requested the other to brand their buttock with a heated butter knife… unfortunately for them it went wrong and the wound became infected. When the “victim” went to see the doctor they called the police, thinking it was some kind of domestic abuse. The case was indeed thrown out of court, but this was done by the Court of Appeal criminal appeals division (which is lower than the House of Lords and is therefore of less authoritative value), on the grounds that the injury was caused with mutual instigation and no hint of hostility or aggression in a domestic relationship context. The situation was compared to tattooing, which had been confirmed by the Lords in R v Brown as a situation in which it was possible to consent. The Lord Justices of Appeal also drew attention to the circumstances involving a married couple (an aspect which has been criticised for being strongly homophobic, there is no evidence that the participants in R v Brown were any less loving or caring for each other!). As you can tell, none of this seems to be relevant to our situation. We are shooting each other with some element of hostility – in that we intend to hit the other person to get them “out”! Though (most of us) do not do so with the additional intent of causing any injury, the fact that we know that it is a likely consequence (albeit minor and trivial) moves us far from the R v Wilson exception, as well as the more obvious issue of us all not being in some kind of mass, communal marriage!

 

Final Conclusion

 

I would confidently say that most of the time it IS possible to consent to being shot by an air rifle as long as it does not injure you in the context of an airsoft game. However, as soon it actually causes some injury, consent that you may have had becomes worthless and you will have committed a criminal offence. This is an unacceptable risk and every site owner should be very aware of the consequences of any such injury occurring on their premises – they may well be charged as being an accessory to the offence by allowing the operation of such a weapon with full knowledge of its power!

 

One final issue to note is that the Crown Prosecution Service has a discretion to prosecute, so there might be a chance that with enough explaining they would concede that it would not be within the public interest to prosecute. This would not be a good thing to rely upon, though!

 

I hope some of you find that useful and I apologise for my verbosity. It is an important issue which I think that you all need to be aware of.

 

[Inq Eisenhorn]

Theres a few points that seem to have been missed.....reminds me of the old tree in the woods proverb....if noone reports a crime, there is no crime!

 

The problem here, as I see it, most of us DO consent to being hit by bbs and shot, no matter what the "law" says. We do it in airsoft, martial arts...hell, some of us even do it in bed. The government and its controlling attitude will always try to regulate what should be, and in most cases is, common sense!

 

We as a community will have problems when some dimwit turns up to a site and does a Mcdonalds hot coffee law suit on the site organisers....thats one fear, and risk that has to be taken into account.....but if this sort of thing is going to linger in peoples minds, then we may as well pack up this sport right now.

 

I still think we haven't tackled what in my mind is the main problem with this, now apparent, ruling....what happens to sniper rifles as an aspect of the game? Without the extra fps how will the snipers justify the now level playing field in terms of engagement ranges? is this the end of sniping?

 

Delfi has raised a point that seems to get downplayed, and yet its really the most important aspect of this discussion IMHO...what about snipers? Are people happy to play with 345 - 360fps sniper rifles? or is it simple the end of that aspect of the game?

 

 

 

 

[Marlowe]

Right, I'm going to have to ask that you chaps try and get back on topic now, as everyone (including mods) seem to be going off on an epic tangent.

 

Secondly, I appreciate the attempts of those working in law enforcement / studying law to give their educated opinions on this matter, but unless they are actually directly involved in the legislature / have personal experience of dealing with crimes relating to airsoft replicas exceeding the velocity, can we please hold off any further such speculation, until such a time as the minutes are made public? The problem with such opinions is that they are often just that - opinions.

 

If I were to ask the missus to come on (she's a solicitor), she'd no doubt give another interpretation of legislation regarding assault, and ViscountCharles (who I think was a barrister?) would no doubt offer another. All of these are great and normally would be welcomed, but I fear the end result at the moment is just to confuse everyone involved.

 

Anyway, going to edit the thread now for clarity. Cheers.

[snorkelman]

An Air Weapon can't be an RIF.

 

Technically, the VCRA doesn't apply to any airsoft sniper rifle firing at over 350fps. They're not RIFs, they're air rifles and therefore can't be fired at people, or sold by retailers over the internet, etc.etc...

 

In the same way that my 4.5mm Co2 pistol isn't an RIF, despite looking like a Makarov, it's an air pistol.

 

 

heres the fun part - theres currently no import restrictions on air pistols or air rifles from abroad (provided they meet uk power limits and dont have no-go functions) so you can happily fill your boots with as many gun shaped greater than 1 foot pound objects as you please by mail order across the interweb provided they havent been bought from a UK retailer (otherwise it would have to be RFD face to face etc)

 

[Hedganian]

No disrespect intended towards Marlowe, but given that there are at least two Mods active in this thread, does it really, really need further moderation or editing?

 

Probably does, since it's pretty damn confusing, to be honest.

 

Boom3r - I think you'll find that I refer to a couple of legal precedents and cases in an earlier post, including a 1992 "consent as a defence against assault" ruling and a 1993 "consent is not a defence for S&M practises" ruling. Which I find offensive, as it seems to be saying that you can consent for some reasons, but not others, and is clearly biased against so-called "perverts". But hey, that's way, way off topic, so I apologise.

 

Anyway, once again I must come back to the point that all of this was argued about back in '02, or '04, or whenever it was, and if you care enough to dig through the Archives on here, or UKAN (if it still exists) or wherever, you'll find pretty much the same discussion happening. The result of which was that 500fps rifles were put in display cases and/or cupboards for a while, or downgraded, and then gradually brought back out once the fuss died down and sanity resumed. I can't see anything different happening this time around, to be honest, even with the current anti-gun campaigns going on. There are always anti-gun campaigns, there were then, and there will be in the future.

 

I like the rugby comparison, whoever posted that. It's a good one, and sums everything up perfectly. Within our sport, we have a use for RIF weapons, and a need to shoot each other with them - at whatever velocities - and doing such things out on the street would be a crime under various acts, including but not limited to the VCRA, just as tackling people in the street would be, or using martial arts on them (for no reason such as self defence) and so on..

 

Snorkelman - that being the case, importing airsoft kit which is over airsofting limits is perfectly legal, Chinese clones or otherwise, as you're not importing an RIF, but an air rifle...? However, if it's an AEG, then you'd be importing a section five weapon, and as such be in far more trouble than any RIF import would get you in. Not much of a loophole there, then.

[snorkelman]

Snorkelman - that being the case, importing airsoft kit which is over airsofting limits is perfectly legal, Chinese clones or otherwise, as you're not importing an RIF, but an air rifle...? However, if it's an AEG, then you'd be importing a section five weapon, and as such be in far more trouble than any RIF import would get you in. Not much of a loophole there, then.

 

nopes more a supreme irony that you can happily import a co2 mak with no more than a velocity declaration being asked for at worst by customs folks, even though legally its now impossible to order same co2 mak by mail order from a shop 6 miles away.. likewise if someone based in france etc put their mind to building straight pull >1 foot pound springers for the UK market out of dboys M4s or AKs etc

 

 

 

[BenjaminRombough]

so Theoretically one could go to somewhere for example RSOV and order a BAR 10 or a Warrior or a G22 all powerful enough to be classed as lethal by the authorities and not have customs bat an eyelid?

 

Thats abit messed up

[Hedganian]

In practise, it wouldn't be any easier to import an air weapon than an RIF - you'd still have to supply documentation to HM Customs of the power level of the weapon, they might decide to test it themselves and bill you for it, etc, etc. The one thing you wouldn't have to provide would be UKARA-related information or proof that you're entitled to the Skirmisher Defense, since you can't legally skirmish with an air rifle.

 

Apparently.

 

But I think it does serve to illustrate the complete stupidity of restricting harmless and legally non-lethal "weapons" to an extent which more dangerous weapons are not restricted. You don't have to prove a need to buy an air rifle, you can just go and get one, but you have to prove you are a "registered skirmisher" with a site membership and/or UKARA membership to buy a harmless airsoft gun.

[Stealthbomber]

so Theoretically one could go to somewhere for example RSOV and order a BAR 10 or a Warrior or a G22 all powerful enough to be classed as lethal by the authorities and not have customs bat an eyelid?

 

Thats abit messed up

Let us know how you get on with that.

 

Personally, I suspect the HMRC people are quite switched on and they'll wonder why you're importing an airsoft gun on the pretext of using it as an air rifle when you could have bought a "proper" air rifle instead.

I suspect they'll continue to claim that the item is a RIF and leave you to find the money to start court proceedings against them in order to have your £60 gun returned.

[Pablo]

but you have to prove you are a skirmisher at a site with Public Liability Insurance to buy an airsoft gun.

 

Fixed. I would never describe them as harmless, as I've seen enough welts and broken teeth in my time to know different. Of course that's considered an acceptable risk by players, and nobody has sued over it.

[galactica]

all it will take is one kid losing an eye at some point, a parent will try to sue and it'll all go to hell. It's just fortunate it hasn't happened yet.

[BenjaminRombough]

Let us know how you get on with that.

 

 

Well thats the thing i think i have unintentionally let me explain Im not trying to curcumnavigate the VCRA here just understand what happened.

 

I bought an AtoZ SVD Dragunov back mid march time from Ebay in the states only to find that the guy had alrady shipped it prior to me sending him my documents so expecting the full customs probing etc and the usual parcel farce rape to go with it i was rather surprised to find it on my desk in work later that week. I was thinking this had just slipped through the net as it were but now it could be that it isnt subject to the same regulations due to it being classified as an airrifle rather than a RIF.

 

 

[Stealthbomber]

More than likely it just slipped through.

I've ordered 3 RIFs since October. One required me to fax site registration to HMRC, one required me to phone up HMRC and say "I'm a skirmisher so please send me my gun" and the 3rd, as with you, just arrived at my door unannounced.

 

Until somebody actually orders a 500fps VSR10 and, after having it stopped by HMRC, has it released by saying it's an air rifle rather than a RIF, nothing is conclusive.

[imp1864]

all it will take is one kid losing an eye at some point, a parent will try to sue and it'll all go to hell. It's just fortunate it hasn't happened yet.

 

 

If carlsberg made posts, probably the most valid post so far. I for one do not want or need the helth andsaftey exec poking their collective noses in.

[Hedganian]

Last time I looked into this, an airsoft BB, fired below the common velocity limits at UK sites, doesn't have the ability to cause enough damage to make someone "lose an eye". I don't pretend to be an expert on such matters, however.

 

The same thing could be said for paintball, of course, it's nothing to do with RIFs, velocities, or anything else. If you're dumb enough to take off your eye protection while people are shooting or likely to shoot at you, then there's a risk you could suffer an eye injury, minor or serious or catastrophic.

 

Personally, I think that anyone who does so should be ruled as having caused the injury themselves due to being stupid enough to take off their protective equipment, but I know that's not how the stupid laws in the UK work.

[QQexDERA]

I just go by what the legal team at work informed me (though they laughed when i asked the question, as they tend to deal with *much* nastier kit)

 

Lethality is still defined on a case-by-case basis. The whole 1.35J case law would be utterly destroyed by a half competent defence team on the grounds that it is the result of (now) thoroughly discredited test methodology.

 

Hell, if you look at some of the FSS in the UK - i.e. FSS of Scotland and FSS of NI, they both tend to put lethality between 3 and 4 Joules of power.

 

Now, ask yourself this question. Why haven't there been any prosecutions? Is it because the CPS know that they cant rely on the case law of Moore Vs Gooderam?

 

Until somebody actually orders a 500fps VSR10 and, after having it stopped by HMRC, has it released by saying it's an air rifle rather than a RIF, nothing is conclusive.

 

Damn good point IMHO.

[Brick]

Although paintball guns fire 4g balls of paint at 300fps (a rediculous amount of energy) they get away with it due to the frangible nature of the ammunition, however if you went digging you would find there have actually been deaths attributed to people being hit by paintballs that fail to rupture or have hit sensitive areas of the body at close range ie someone suffered a stroke and later died from being struck in the back of the neck with a paintball round a few years ago.

He was struck on the back of the head, what caused him to die was teh "reaction" to the shot. he turned his head violently and caused an embolism, the coroner found that this would have happened regardless of the impact and he could have died of this at any time so paintball was not the cause of death. Similarly there have been other cases over in the US where a rabid press accused paintball of killing people with no evidence to back them up. In one a cyclist fell off his bike and the resulting injuries killed him, on the ground nearby were a couple of old p-ball strikes. The Sherriffs office investigated and found it to be an accident, not before some journo with a camera had taken photo's and announced something like PAINTBALLERS KILL BIKER.

 

Hedganian is also correct, I often hear people going on about how an eyeball has he same consistency as a grape ######S your eye is very tough http://en.wikipedia.org/wiki/Eye gives a good overview of the makup of a human eye.

As an asside when doing O-level Biology I had to disect an eye, even with a scalpel it was very hard going getting through the surface and when popped they all squirted the vitreous humour out a fair distance as the eyeball is under high internal pressure.

[Svack]

someone should get hold of a pig eye and do some tests...

[Brick]

now thats a good idea I'll pop down the butchers sometime this week and see if they have any.

[Pablo]

It would be rather more useful if the FSS did the tests and revised their recommendation accordingly tbh.

 

We can debate what could/should happen 'til the cows die, but it won't do a fat lot of good. As soon as I have the minutes, I'll post them up and we can all see if anything has actually changed.

[minimiman]

How fps rears it's head and personal interpretation intervenes.

 

For the record, Ken Elston is not the chairman of the UKASGB, unless it's changed in the last couple of weeks sean Wilson is the chairman.

 

First up, I was at the meeting and as Sean has written, the minutes are a condensed vertion of what was said, not a word by word statement. So they are little help.

 

There were differences of opinion on the airsoft side with one party being virelently against anything over 1 joul + 10 % and the others sitting on the fence, waiting to see the way the conversation went. Waiting was the prudent approach, talk less listen more is always the best policy.

 

Fps was brought up by the Home Office civil servants (there were no ministers present). it wasn't brought up by UKASGB, UKARA or anybody else.

 

The 1 joul recommended limit was pronounced by the HO civil servants, but it was pointed out to them it was their recommended limit and wasn't enshrined in law as that would have taken case law to verify. It was also noted that there had not been any specific testing regarding airsoft guns. The 1ftlb was brought up as the only figure with any legal back up, again the recomended 1 joul limit was the party line.

 

Until a case is brought in a court this will not be clarified. If it is ever brought up in a court case I suggest we as a community chip in for clear, current and accurate testing to clarify the situation, but until then leave it well alone.

 

These things are always open to personal interpretation, so one persons view of the way the conversation went will always differ from another, case law will remove that.

[imp1864]

Good post Tim, and as you well know even with case law, the two opposing barristers will argue interpertation and semantics. Thusly it continues, eh.

[Delfi]

What worries me here is that I don't want to be the person involved in the test case.

 

Surely erring on the side of caution is the best approach? However ,if we all err on the side of caution there will be no test case and the whole thing becomes self fulfilling

 

D

[Inq Eisenhorn]

Is it then fair to say, that in actual fact nothing has changed? It seems to me that it is in the hands of the individual sites (as it was before the talks) to regulate and direct the site limits for FPS?

 

So Fireball may well exclude the use of sniper rifles at anything over 328, but another site can lawfully allow the use of sniper rifles right up to 550 fps (possibly with minimum engagement distances)?