CHAPTER 8 Continued...
The certification system relating to section 1 firearms
8.91 It was suggested that each firearm application should be advertised locally so that members of the public could express any objection to or reservation about the applicant while the application is under consideration by the police.
8.92 I do not favour this proposal in the case of those who already hold firearms. It would serve to draw attention to the fact that they possessed firearms and would tend to increase any risk of their homes being broken into and the firearms stolen. As regards the application of such a proposal to those who are applying for a firearm certificate for the first time, I do not consider there is sufficient reason for making advertisement obligatory only in the case of such applicants.
8.93 Here I am concerned with the categories of person whom the 1968 Act treats as prohibited persons. A number of suggestions were made for additional categories. The only proposal which appeared to me to have any tenable connection with the Inquiry was that those who have been detained under the Mental Health Acts, whether or not as a result of an order made by a criminal court, would incur prohibition. As is pointed out at para 80 of Part II of the Green Book any such change in the law would need to make provision for a right of appeal.
8.94 This matter was considered by the Firearms Consultative Committee in Chapter 9 of their Third Annual Report (in 1992). They regarded the issue, especially in the case of non-offenders, as raising formidable legal, medical and enforcement difficulties. They recommended to the Home Secretary that he should look closely again at the whole issue in consultation with his ministerial colleagues in other interested departments to see whether a solution was possible.
8.95 Up to a point the need for depriving a person of firearms could be met by the system for communication of medical information with which I have been concerned above. It seems to me that it may well be preferable that such cases should be handled through the process of revocation rather than by the creation of an additional prohibited category. In the circumstances I have no particular recommendation to make.
8.96 The question of whether an applicant can be permitted to have a firearm or ammunition in his possession includes the question of the security in which they are held. Standard condition 4 of the firearm certificate places holders under a duty to take all "reasonable" security precautions, both when the firearms and ammunition are in store at home or elsewhere and when they are in use or transit.
8.97 It was suggested - as it has been before - that it should be a mandatory requirement for a particular means of security to be provided. I can see that this would have the advantage of certainty, mainly for the police. On the other hand on the limited submissions made to me I am not convinced that it would be right to recommend such a change. The greater advantage seems to lie with the present system in which what is required is intended to be proportionate to the circumstances of the case.
8.98 Here I am concerned with two inter-related matters, firstly, the period after which firearm certificates fall to be renewed; and, secondly, the manner in which the renewal enquiry should be conducted, and in particular whether it should be by visit or by post.
8.99 Firearm certificates issued on or after 1 January 1995 are valid for 5 years. Certificates issued before that date are valid for 3 years. There is no legal requirement that applicants for the initial grant or renewal of a firearm certificate should be visited. Police forces have been encouraged to carry out a thorough investigation of all initial applications so that a postal system, supplemented by home visits only where strictly necessary, could be introduced - thereby reducing the time, workload and cost of renewal process. A number of Scottish police forces have introduced a postal renewal system for shot gun certificates but only one has introduced such a system for firearm certificates. Chief Constable Cameron said in evidence that most forces were reluctant to introduce postal renewal because they considered that it was essential to continue to have as many home visits as possible in order to maintain the quality of the enquiry in the interests of public safety and the application of the regulatory aspects of firearms law, especially in view of the extension of the life of the certificate from 3 to 5 years. He added that it was anomalous to have enquiries into the renewal of shot gun certificates carried out to a different standard.
8.100 The practice of carrying out a postal renewal represents a shift away from the advice given in the Guidance to the Police at a time when the life of the firearm certificate was 3 years. The advice was that it was helpful to combine a personal visit with the inspection of firearms and the interview; and that applications for renewal gave an opportunity for reviewing the circumstances of each case and the extent to which the provisions of the Act had been complied with by the holder of the certificate and by persons supplying him with firearms or ammunition (6.29).
8.101 It is my understanding that it was intended that postal renewal would be used only where there had been no change of circumstances and no reason to do otherwise. However, it seems to me that even with an improvement in the level of police criminal intelligence, it may well be that a change of circumstances or a cause for concern will not be known unless a home visit takes place.
8.102 I do not consider that the life of the firearm certificate which has been so recently extended to 5 years should revert to 3 years. However, in the light of the evidence which I have heard and read I consider that this calls for greater emphasis on the quality of work which is done by the police gathering and utilising intelligence. I do not favour postal renewals as the general rule.
8.104 It was submitted that in addition to the power of revocation the police should also have the power to suspend the certificate pending a decision as to revocation. I do not consider that this is necessary, having regard to my recommendation in para 8.15.
8.105 It was also submitted that certain consequences should follow from revocation, in particular that a period of time should elapse before the former certificate holder would be able to reapply for a certificate. I am not convinced that it would be appropriate to enact a rule which would apply to every case irrespective of its circumstances. Accordingly I do not favour such a proposal.
8.106 I noted that it was also submitted that a person whose firearm certificate had been revoked should be unable to take advantage of any of the special exemptions from section 1 of the 1968 Act. While I see some force in this proposal it seems to me to lead into a consideration of matters which are too far removed from the scope of this Inquiry, and accordingly I have not given it further consideration.
Decisions and Appeals
8.107 It is essential that the officer to whom the duty of making a decision to grant or refuse an application for a firearm certificate or a variation or a decision as to revocation of a firearm certificate is placed in the position of being able to make that decision in the light of all the information which is of possible relevance (cf para 6.78).
8.108 It was submitted that the chief officer of police or the officer acting on his behalf should be given a discretion to decide which was subject only to the process of judicial review and hence that the present appeal system should be abolished. I do not recommend such a course. Apart from any other consideration it would mean the loss of access to a local independent forum.
8.109 It was also submitted that the chief officer of police should be subject to a general duty to hear the applicant or holder prior to making his decision. The purpose of this would be to give the applicant or holder an opportunity to respond to the case against him. At present the Firearms Acts make no provision for any form of procedure. It seems to me to be inappropriate to introduce such a formal requirement regardless of the circumstances. That is not to say that there may not be circumstances, especially in regard to revocation, where it is arguable that considerations of natural justice indicate that the holder should be given the opportunity to respond. However, that is a matter to be determined according to the circumstances of the case.
8.110 Another duty which, it was submitted, should be imposed on the chief officer of police was to give reasons for his decision. This is already advised as a matter of good practice (see the Guidance to the Police, paras 6.7 and 6.39). In their Fifth Annual Report (in 1994) the Firearms Consultative Committee did not support such a proposal. I do not consider that I should differ from them.
8.111 It was pointed out by the BSSC that there is no mechanism by which the chief officer of police may refer his doubts or concerns about a particular applicant to an independent review outwith the court system and his own police force. They submitted that there was merit in the introduction of an "intermediate" tribunal comprising suitable experts to which cases could be referred. This would enable him to express his concerns without having to commit his force to the expensive option of defending an appeal. No such suggestion has come from any of the bodies which represent police officers of whatever rank. I consider that it would tend to detract from the responsibility attaching to the chief officer of police as well as delaying the prompt disposal of what he has to decide. I do not favour this proposal.
8.112 Under section 44 of the 1968 Act an applicant or holder has a right of appeal in Scotland to the Sheriff; and in England and Wales to the Crown Court. A study of a number of decisions - to which my attention was drawn in a note by Mr Bonomy and Mr Lake in regard to Scotland and an opinion by Mr Jeremy Carter-Manning QC in regard to England and Wales - shows that there is a considerable variation of approach.
8.113 In England and Wales the appeal is treated as if it was a re-hearing. While the decision of the chief officer is of considerable importance the Crown Court substitutes its own decision for his, taking into account not only matters considered by him but also any other matters brought to its notice (see Kavanagh v Chief Constable of Devon and Cornwall  QB 624 and R v Acton Crown Court ex parte Varney  Crim LR 783).
8.114 In Scotland it was thought for many years, in the light of the decision in Kaye v Hunter 1958 SC 208, that the sheriff was performing not a judicial but an administrative function; and in that capacity he could only interfere with the decision of the chief officer of police if he was persuaded that it was a capricious or arbitrary exercise of his discretion. However, in Rodenhurst v Chief Constable of Grampian Police 1992 SC 1 it was held that Kaye v Hunter was wrongly decided; that the sheriff was acting in a judicial capacity; and accordingly that an appeal to the Court of Session was competent. On the other hand the court did not express a view as to the scope of the appeal to the sheriff. It was sufficient for the outcome in that case that it was common ground that the chief officer's decision was based on materially incorrect information and accordingly could not stand.
8.115 Against that background it will be understood that until the decision in Rodenhurst there was a dearth of authoritative decisions as to the scope of an appeal to the sheriff. Since Rodenhurst sheriffs have disposed of appeals to them on a variety of bases. In some cases the sheriff has proceeded to reconsider the subject of the chief officer's decision in much the same way as it would have been reconsidered in England and Wales. In some the sheriff's decision has turned on whether the chief officer's decision was "justified and reasonable". In others the sheriff has considered whether the decision was based on an error of fact or law, oppressive, unjust or malicious or unreasonable. A recurring theme in many of the decisions is that the chief officer's discretion should be recognised and respected. The only case which has come before the Court of Session since Rodenhurst was Howson v Chief Constable of Fife 5 November 1993, unreported, in which the court said in the course of its opinion: "The essential matter that the chief constable had to decide, that the sheriff had to decide or that we should have to decide if we were considering the matter afresh, is whether or not the circumstances revealed a danger to the public". This may suggest that the sheriff was in the position of being able to exercise an independent decision de novo.
8.116 It is clearly unsatisfactory that in Scotland there should be uncertainty as to the correct approach to be adopted. In the ordinary way it might well be appropriate, if one was concerned only with the ascertainment of the law as it stands, to await a suitable opportunity for the Court of Session to clarify the position in Scotland. However, the existence of diverging approaches as between Scotland and England and Wales serves to highlight certain questions which may be pertinent in the present Inquiry where the scope for an appeal is an element in the strictness of the certification regime.
8.117 It is, in my view, open to question whether an appeal should be as wide as to amount to a re-hearing of the application or the matter of revocation. It is to my mind strange that, when so much importance attaches - and rightly so - to the responsibility of the police and in particular the decision-maker, that a court of law should take on the responsibility of discharging that function in deciding an application or a question of revocation, all within the comparatively narrow range of the information which is provided by the evidence before it. While cases may occur in which a chief officer of police proceeds on what turns out to be incorrect information or mistaken view of the law, the core of his function is the exercise of his judgment. Although the decision in Kaye v Hunter is no longer of any authority one of the remarks by Lord President Clyde at page 211 is apposite: "He is probably in a far better position than any other official to know or to be able to ascertain whether the granting of the certificate is in the public interest ....". As I have already noted, in a number of cases in Scotland sheriffs have reiterated the importance of the discretion which is entrusted to the chief officer.
8.118 These considerations lead me to question whether it is appropriate that a court of law should approach the question as if it was for itself to decide in place of the chief officer. For the same reasons I also question the submission which was made for the BSSC that the appeal function should be transferred to a specialist tribunal on the ground that "one of the fundamental problems of the current appeal system is the unfamiliarity of some courts with the sport of shooting, with firearms law and its application, and with the practical side of firearms licensing".
8.119 I consider that the more appropriate approach is to recognise
the discretion of the chief officer of police, retain the courts
as the avenue for appeal, and limit the scope of appeal to enumerated
grounds which between them should cover the areas in which there
should be room left for appeal. Purely by way of illustration
I would draw attention to the fact that under the Licensing (Scotland)
Act 1976 and the Civic Government (Scotland) Act 1982 the scope
for appeal to the sheriff against a decision of the licensing
board or, as the case may be, the local authority, is limited
to cases in which the decision-makers (i) have erred in law; (ii)
have based their decision on an incorrect material fact; (iii)
have acted in a manner contrary to the requirements of natural
justice; or (iv) have exercised their discretion in an unreasonable
manner. I recommend that consideration be given to reforming
the scope for appeal on these lines, although I appreciate that
the exact terms in which it should be cast is a matter for further
study and consultation.
8.120 From the discussion in this chapter I draw a number of conclusions. It would be practicable to supplement existing measures with a view to ensuring that no holder of a firearm certificate remained in possession of a firearm unless he continued to have good reason to do so. However, as regards ensuring the suitability of the applicant or holder - the aspect which is of greater importance for public safety - there would still be significant limitations. The provision of medical information can provide warning signs in some cases but there is no certain means of excluding the onset of a mental illness which poses danger or of identifying those whose personalities harbour dangerous propensities. These limitations would be inherent in the system itself, quite apart from any failure to operate it adequately.