Part 3: Appeals against the granting of a shotgun licence or forearms licence
Where an application fails the applicant should be provided with reasons as to why, in order for them to assess whether the decision was justified and possibly appealable, there is no statutory requirement that reasons be given.
There are rights of appeal against decisions of chief officers of police in connection with the grant, variation, renewal or revocation of firearm certificates, and the registration or removal from the register of firearms dealers.
An appeal lies to the Crown Court in England and Wales
Under Schedule 5 of the 1968 Act an appellant must give notice of their appeal to the administrator of the Crown Court and to the chief officer of police concerned within 21 days after the date on which they received notice of the decision of the chief officer against which they wish to appeal.
The appellant may put forward further evidence or representations to the chief constable at any time leading up to the hearing of an appeal. The administrator of the Crown Court is then required to enter the appeal and give notice to the appellant and to the chief officer of the date, time and place fixed for the hearing.
Section 44 of the 1968 Act was amended by section 41 of the 1997 Act. This provided two points of clarification in respect of the appeal process:
(a) that an appeal shall be determined on the merits (and not by way of review), (R v Acton Crown Court (ex parte Varney) 1984); and
(b) that the Court or Sheriff hearing an appeal may consider any evidence or other matter, whether or not it was available when the decision of the chief officer was taken (Kavanagh v Devon and Cornwall Constabulary 1974).
In practice, this means that the courts will consider the case afresh, including any matters that may have come to light since the chief officer of police’s decision was made. The chief officer should therefore consider any such matters which have arisen which might have a bearing on the case prior to the appeal.
As a general rule, no order for costs should be made against the police where an applicant is successful on appeal, unless, as an exception to the general rule, the police’s decision was unreasonable, or the police have acted in bad faith, in which case costs can be awarded against the police in those limited cases.
Case law on costs:
Oldring v Chief Constable of Hampshire (2003) – Costs should only be awarded against the police where their decision was “Wednesbury unreasonable;” meaning so unreasonable that no reasonable decision maker could have arrived at it. The question of whether or not the police’s decision was reasonable should be judged on the basis of the material that was before the police at the time they made the decision.
R (On the application of Chief constable of Sussex) v Chichester Crown court (2003) – Provided the chief constable reasonably comes to the conclusion that there are grounds to revoke and can maintain that view before the court, there can be no injustice to the appellant in denying them the ability to recover their costs even though they have succeeded on appeal.
No right of appeal
Significantly, there is no right of appeal against the conditions attached to a firearm certificate, confirmed in the case of R v Cambridge Crown Court ex parte Buckland . Where conditions are opposed by an applicant on the grounds that they are too onerous for example, the usual recourse is to have them judicially reviewed, where the issue of whether or not they are [‘Wednesbury’] unreasonable will be considered. Relevant commentary on the imposition of firearms conditions is provided by BASC in an article entitled ‘Additional Conditions on FACs’ published in September 2009. This provides advice to Firearm Licensing Staff. At page three of this advice lists the following attributes that additional conditions must have, in line with Home Office Guidance: “They must be lawful; unambiguous; Reasonable; Proportionate; Non-contradictory; demonstrably beneficial to the public safety; properly notified and evidenced” The reasons for the conditions should be provided though again this is not mandatory. One can only hope that the Government gives further guidance to officers across the length and breadth of the country in order that the sensible approach as outlined above, regarding the imposition of conditions, is applied in an even and consistent manner.
Revocation of a shotgun licence
Where police forces have serious concerns about a certificate holder’s continued access to shotguns, prompt action must be taken to ensure no preventable harm is caused to public safety. This may involve the certificate holder being invited to voluntarily surrender their shotguns and certificate pending a review of their continued suitability to be issued with a shotgun certificate. Such a review should be carried out expeditiously, with the certificate holder informed of the progress. Should the enquiry have the result that there is no danger to the public safety, the guns and certificates should be returned as soon as practicable. Care should be taken in the transport and storage of guns concerned. 11.34 Under section 30(C)(1) of the 1968 Act (as amended), a shotgun certificate may be revoked by the chief officer of police if they are satisfied that the holder cannot be permitted to possess a shotgun without danger to public safety or to the peace. A chief officer must revoke a certificate held by a person who has become prohibited under the terms of section 21 of the 1968 Act. Section 110(3) of the Anti-social Behaviour, Crime and Policing Act 2014 is a caveat to this general principle. Forces will be expected to give reasons for their decisions to revoke a shotgun certificate. The courts also have the power under section 52(1) of the 1968 Act to cancel certificates. Section 30(C)(2) of the 1968 Act (as amended) provides for a right of appeal against the decision to revoke. 11.35 When the chief officer of police revokes a certificate they must send the holder a notice in writing requiring them to either: (a) surrender the certificate within 21 days of the date of the notice (or the date of the abandonment or dismissal of any appeal against revocation); or where the chief officer considers that the circumstances of the case justify it, (b) surrender the certificate and any shotguns held by virtue of the certificate forthwith (as per section 12 of the 1988 Act).
Appeal against revocation of a shotgun licence
The certificate holder has a right of appeal and the police can only retain the shotguns if they have been surrendered due to notice being served in terms of section 12(1) of the 1988 Act, otherwise the shotguns will need to be released during an appeal period to a suitably authorised person acting on behalf of the owner at the earliest opportunity. Care should be taken in the transport and storage of guns concerned, which may have considerable monetary value in some cases. If the appeal against revocation succeeds, any shotguns surrendered under section 12(1) must be returned to the successful appellant. On the dismissal of an appeal, the court may make such order for disposal of any shotguns surrendered under section 12(1) as it thinks fit. It must be remembered however that unless such an order is made, the applicant retains title to the shotguns.
POSTED: Tuesday, May 12, 2015