Appeal against the revocation of a Shotgun Licence/ Refusal of a shotgun licence. Part 2: Examining the tests
Part two: examining the tests:
In this second article, we examine the tests to be applied by the police in more detail.
Fitness to be entrusted:
Home office guidance exists in respect of this as well as informal guidance issued by various police forces. Areas that can be taken into account in consideration of the application are:
- Is the applicant prohibited from being issued a licence by law? The Firearms Act states that: “(1) A person who has been sentenced [to custody for life or] to preventive detention, or to imprisonment or to corrective training for a term of three years or more [or to youth custody [or detention in a young offenders institution] for such a term]... shall not at any time have a firearm or ammunition in his possession.”
- Is the applicant of sound mind? Does the applicant suffer from mental health problems? Having suffered from depression or other mental illness is not an automatic bar to being granted a licence. The Home Office Guidance states that: “It should be remembered that simply because a person has received treatment in the past for certain illnesses or conditions, such as depression or stress, it does not automatically follow that they are unfit to possess a firearm. It is simply one of the factors to be considered…”
- Are there ‘Intemperate Habits’ being displayed by the applicant? For example evidence of aggressive behaviour, previous convictions that don’t automatically apply, an irresponsible attitude towards firearms, alcohol abuse or drug abuse. Again this is not an automatic bar to the issue of a licence. The Home Office guidance states that: “Decisions on applications and revocations should be made on an assessment of all the relevant information and must be made on the individual merits of each case. Evidence of previous convictions or intemperate behaviour, for example, might not result in an automatic refusal if, since the conviction, the applicant has led a law-abiding life and shown a capacity to be entrusted to possess a firearm.”
Cases law in respect of the relevance of previous convictions are:
'Dabek v Chief Constable of Devon and Cornwall (1991)', where the court ruled that a woman of good character should not possess a gun where her husband had two ancient drug convictions but still associated with drug users;
'Chief Constable of Essex v Germain (1991)', where the court ruled that a chief officer was entitled, in revoking a shotgun certificate, to take into account the certificate holder’s drink driving convictions. It was felt that this demonstrated irresponsibility and lack of self-control and justified the chief officer believing there was a future risk to the peace involving the shotgun;
'Spencer-Stewart v Chief Constable of Kent (1989)', where the court ruled that the certificate holder’s handling stolen goods conviction was considered not to pose any future risk in relation to possession of a shotgun, and thus the revocation of the certificate was not justified.
Having a good reason
Each case must be judged on its own merits, there is not a finite list of good reasons available for wanting to possess a firearm. Where an applicant wishes to possess more than one firearm a good reason in relation to each must be provided. The Home Office guidance states that “Good reason” should be neither confined to need nor equated with desire. Most firearm certificate holders possess firearms for reasons of their profession, sport recreation, or collecting, study or research and may properly wish to exercise discretion as to what types of firearms they choose for these purposes. On the other hand, a simple wish to own a particular sort of firearm is not in itself “good reason” without further supporting evidence of intentions. Case law such as Anderson v Neilans (1940) and Joy v Chief Constable of Dumfries and Galloway (1966) suggests that the application should be considered firstly “from the standpoint of the applicant rather than from that of a possible objector”. “Good reason” will need to be demonstrated for each firearm to be held under section 1 of the 1968 Act.
Section 28(1B) of the 1968 Act, as substituted by section 3(1) of the 1988 Act, provides for sporting or competition purposes and shooting vermin to be regarded as good reasons for possessing a shotgun. Collecting, study and research may also be considered good reason as in the case of section 1 firearms. That sub-section also states that an application shall not be refused by virtue of that paragraph merely because the applicant intends neither to use the gun himself nor to lend it for anyone else to use. This is likely to be the case when the shotgun is of special significance to the applicant, such as an heirloom or is of some other sentimental value and may also be considered good reason to possess a shotgun. The Police may make further enquiries where it comes to their notice that there may be genuine doubts about the applicant’s reason for wishing to possess a shotgun.
Good reason is ultimately fact specific, if you are of any doubt as to whether you have a good reason or if you think that your application has been refused where you have a good reason you should seek specialist legal advice.
The police should satisfy themselves that the applicant can be permitted to possess a shotgun without danger to public safety or to the peace. This will necessitate an interview and consideration of their security arrangements. A Court in England and Wales that imposes a suspended sentence may order the forfeiture of a firearm or cancel a firearm or shotgun certificate. Even if a court does not make such an order, chief officers of police have the power to revoke a firearm or shotgun certificate in certain circumstances. In particular when they are satisfied that the holder is of intemperate habits or of unsound mind, is otherwise unfit to be entrusted with a firearm or can no longer be permitted to have a firearm or ammunition without danger to the public safety or to the peace.
POSTED: Friday, May 1, 2015