STEVEN LOMAX AGAINST THE CHIEF CONSTABLE, THE POLICE SERVICE OF SCOTLAND
| DUMFRIES SHERIFF COURT |
| Sheriff Principal B A Lockhart | CASE NO:B69/11
2014SCDUMF64
JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART In Note of Appeal In causa Steven Lomax Pursuer and Respondent Against The Chief Constable, The Police Service of Scotland Defender and Appellant
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Act: Mr J Brown, Advocate
Alt: Mr P Davies, Advocate
________________________________________________________________________
DUMFRIES: 28 October 2014
The Sheriff Principal, having resumed consideration of the cause, allows the appeal and recalls the sheriff’s interlocutor of 27 June 2014 complained of, sustains the decision of the defender and appellant dated 4 February 2011 to refuse the pursuer and respondent’s application for variation of his firearms certificate; finds the pursuer and respondent liable to the defender and appellant in the expenses of the cause; allows an account thereof to be given in and remits same when lodged to the auditor of court to tax and to report; certifies the cause as suitable for the employment of counsel.
Background to the appeal.
[1] In this case the pursuer is a deer stalker who has held a firearms certificate for many years. In October 2010 he applied for the renewal of his firearms certificate to include, for the first time, a .38 revolver for the humane dispatch of deer and other animals. Following discussion between firearms licencing officer, David Wood, and the pursuer it was agreed to treat the pursuer’s application as for a .38 2 shot revolver. His licence was duly renewed on 17 January 2011 with an authorisation to purchase or acquire a “.38 2 shot revolver”.
[2] The pursuer then applied for a variation to the firearm certificate to permit him to purchase a six shot revolver. By letter dated 4 February 2011, the Chief Constable, Dumfries and Galloway Constabulary, (the predecessor in office to the current defender and appellant) refused the variation stating that “a two shot revolver is entirely adequate and proportionate for your declared requirement [the humane killing of injured animals] and there is no justification to possess a revolver of higher capacity.”
[3] The pursuer appealed this decision to the Sheriff under section 44 of the Firearms Act 1968. This section provides, inter alia :-
“(1) An appeal against a decision of a Chief Officer of Police…lies – in Scotland to the sheriff.
(2) An appeal shall be determined on the merits (and not by way of review).
(3) The court or sheriff hearing the appeal may consider any evidence or other matter, whether or not it was available when the decision of the Chief Officer was taken…”
The Sheriff upheld the appeal and by interlocutor dated 27 June 2014 directed the defender to vary the pursuer’s firearms licence to permit him to purchase or acquire “a .38 calibre Smith & Wesson revolver”, (which is a 6 shot revolver) subject to certain further conditions, with which this appeal is not concerned. Part II of the Firearms Act 1968 deals with the procedure for acquiring firearms and shotgun certificates. In particular section 27 provides:-
“(1) A firearm certificate shall be granted where the Chief Officer of Police is satisfied –
(a) That the appellant is fit to be entrusted with the firearm to which section 1 of this Act applies and is not a person prohibited by this Act from possessing such a firearm.
(b)That he has a good reason for having in his possession, or for purchasing or acquiring, the firearm or ammunition in respect of which the application is made and
(c) That in all the circumstances the applicant can be permitted to have the firearm or ammunition in his possession without danger to public safety or to the peace.”
The sheriff’s reasoning is set out in Notes dated 2 December 2013 and 27 June 2014. In his Note of 2 December 2013 the sheriff stated, inter alia :-
“Summary of my Decision.
[193]I have decided, for the reasons hereafter given, that the defender is not entitled on considering section 27(1) (b) to impose any restriction on the type of handgun the applicant intends to acquire.
[194] The only relevant question at that stage is whether the applicant has a “good reason” for acquiring the handgun “in respect of which the application is made” as stated in section 27(1) (b).
[195] I am satisfied on the balance of probabilities the pursuer had “good reason” for acquiring the handgun in respect of which his application was made, namely the humane dispatch of injured deer.
[196] The question thereafter is whether in all the circumstances the pursuer should be permitted to acquire the unrestricted revolver, and thereby have it in his possession, “without danger to the public safety or to the peace” in terms of section 27(1) (c) of the 1968 Act.
[197] I am not satisfied I was fully addressed on whether section 27(1) (c) applied in this appeal and I have directed the sheriff clerk to appoint a further hearing at which I may be addressed on this matter.”
He then continued :-
“Reasons for my decision
[198] I agree with Mr Davies that the pursuer’s objections to acquiring or acquiring and then adapting to a two shot revolver were hard to pin down and had probably evolved over the course of the appeal proceedings- shifting from issues of availability, cost, to safety. I have already commented on this earlier in this judgment. I also agree with Mr Davies that the evidence as a whole suggests a two shot revolver is sufficient other than in rare circumstances- humanely to dispatch an injured deer.
[199] But I am persuaded by Mr Brown’s submission that an applicant has a right to a firearm certificate if he satisfies the requirements in section 27(1) of the 1968 Act, given the use of the word “shall” in that sub-section.
[200] I am not satisfied that the power to impose conditions on the certificate referred to in section 27(2) of the 1968 Act- “the certificate shall specify the conditions (if any) subject to which it is held, the nature and number of the firearms to which it relates”- falls to be read as expanding the powers of the defender so as to require an applicant to acquire a particular type of handgun.
[201] Section 57(1) of the 1968 Act defines firearm as meaning (read short) any lethal barrelled weapon “of any description”, including those prohibited by section 5(2) of the Act. Since those weapons are described in a certain way by the Act, I consider the reference in section 27(2) to “nature” of the weapon must be read as referring back to those descriptions.
[202] The technical description of a handgun in section 5 of the 1968 Act refers only to prohibition of weapons such as a.38 Smith & Wesson revolver which the pursuer wishes to acquire. He is prohibited from acquiring it unless he has a “good reason” for doing so, but it is conceded “good reason” is constituted by the pursuer’s requirement humanely to dispatch injured deer.
[203] I think it is impermissible, as a matter of statutory interpretation, thereafter to limit that good reason to a particular type of handgun. Clearly, a two shot revolver would suffice, but so in my opinion would a six shot. It was not part of the pursuer’s intention to use the gun inhumanely to kill injured deer. He acknowledged the need for a third shot would be rare- “once in a blue moon” as Mr Brown put it.
[204] He was concerned that an adapted gun would carry with it safety risks, even if objectively the risk was small and unquantifiable as described by Mr Truman, and that he would have a quicker response time if he needed to fire a third shot.
[205] I do not think that rare possibility means the “reason” for acquiring the revolver- humanely killing injured deer -would be defeated by such a rare possibility it if ever arose. Better for the deer, and the pursuer’s safety, that he have the flexibility of a quick third shot, without the need to reload. Indeed, the defender was willing to allow for such a margin by authorising a two shot revolver, even though most of the time only one shot would be required
[206] It is clear to me from the evidence of Michael McCormick that Police Scotland imposed such a restriction on grounds of concern about public safety and reducing crime. While these are laudable objectives, I agree with Mr Brown these policy considerations were for Parliament to decide and it is not permissible for the defender to restrict the type of handgun any applicant wishes to obtain for these reasons.
[207] In my opinion, once it is determined an applicant is a fit person to have a firearm certificate in terms of section 27(l)(a) of the 1968 Act, and he has good reason, such as the humane killing of animals, to acquire it in terms of section 27(1)(b) of the 1968 Act, the defender can then, under section 27(1)(c), consider whether the application can be granted “without danger to the public safety or to the peace”.
[208] This will require an objective assessment of all the circumstances of the individual applicant, and the likelihood of the weapon falling into the wrong hands. Here the pursuer lives in a very remote location with high standards of security in storing his weapons, and it questionable if his acquiring the revolver would realistically involve danger to the public safety or to the peace.
[209] If there were concerns in that regard, then conditions “subject to which the certificate is held” might be considered, such as the pursuer not being allowed to possess the revolver out with his home or while stalking deer, so that, for example, he would not be permitted to carry it into Moffat with him.
[210]The situation with the RSPCA in England and Wales does not in my opinion serve as a useful comparator to the pursuer’s case. There are 251 Inspectors in England and Wales who hold a firearm certificate per Mr Dalton’s letter at 6/17 of process.
[211] The extent to which these are used depends on “geography” according to Mr Dalton. The RSPCA understandably “takes its responsibilities for human safety most seriously” per Mr Dalton’s letter.
[212] It follows from Mr Dalton’s evidence that the RSPCA has to operate in diverse places in England and Wales- from large metropolitan areas to remote country districts. Its Inspectors come into contact with members of the public. It is little wonder the RSPCA restricts its Inspectors to a one shot revolver in these circumstances.
[213] Moreover, its newly acquired Smith & Wesson .38 revolvers are adapted so as to fire from only one chamber. They are functionally no longer revolvers. The pursuer would under his current certificate require to acquire an adapted revolver, which would have four chambers blocked off in one of a number of ways discussed by Mr Truman in his evidence.
[214] Even if the welding process did not carry significant risks, and these were only small and unquantifiable, I do not think it “irrational” of the pursuer to worry about that risk.
[215] Since he has in my opinion no intention of using the weapon to harm the public, and there must be risks involved, no matter how small, in dispatching an injured animal, it is understandable he would want to acquire a market leading gun and not have to take any risk in modifying it, while at the same time having the flexibility on a rare occasion to fire a third shot.
[216] The 1968 Act does not in my opinion permit the defender or me on appeal to look into the objective rationality of the pursuer’s reasons for not wanting to acquire a modified handgun as urged on me by Mr Davies. That in my opinion reverses the meaning of “good reason” in section 27 (b) of the Act by turning it into an enquiry as to the reasonableness of the applicant’s wishes to acquire a particular type of handgun and not to accept the defender’s opinions about these matters.
{217] The “good reason” is related, not to these matters, but the reason for using the handgun- in this case the humane dispatch of injured deer. The.38 calibre appears to me to be suitable for this purpose as stated by the pursuer in his evidence. This is confirmed, in my view, so far as anything can be taken from the Home Office Guidance that such a calibre is needed for larger animals such as deer. It is also confirmed in my view by the decision of the RSPCA to move to this calibre in England and Wales.
[218] What reason can there be for restricting the revolver to a two shot? It can in my opinion only be concerns over public safety, as spoken to by Michael McCormick. These are legitimate concerns, but in my opinion they do not relate to “good reason” for possessing a .38 calibre revolver to do with dispatching injured deer. They apply to the third stage of considering an application with reference to the criteria in section 27 of the 1968 Act.
[219] This of course leads to the possible result where one individual in Great Britain, perhaps the pursuer, might be allowed a six shot revolver for dispatching injured deer but others, with reference to section 27(1) of the 1968 Act might not. This cuts across the defender’s desire as expressed by Michael McCormick, Assistant Chief Constable of Police Scotland, to “restrict the proliferation of handguns”, but if that is so it is the balance struck by Parliament if my interpretation of the 1968 Act, as submitted by Mr Brown, is correct.”
The sheriff then heard parties further on the application of section 27(1)(c) of the 1968 Act and in his second note dated 2 June 2014 he said inter alia:-
“ [15] 1 agree with Mr Davies that in contradistinction to sections 27(1) (a) and (b), which raise rather “narrower” issues, section 27(1) (c) is to be construed broadly. I agree with him the circumstances to be taken into account by the court under section 27(1) (c) are “all” the circumstances and these are not limited to the storage and security features referred to at paragraphs [33] and [34] of my earlier Judgment.
[16] I agree they include matters such as those personal to the pursuer, for example his health, the nature of the firearm to be possessed, the use and the circumstances in which it is to be used, and the risks associated with all these things, including transporting the firearm I also agree that the more potentially lethal the firearm is and the more its potential attraction to criminals if stolen are “circumstances” relevant to the section 27(1) (c) issue.
[17] I do not agree with Mr Brown that allowing the appeal would follow as a matter of “logic” from the court being satisfied as to the section 27(1) (a) and (b) issues. I agree with Mr Davies that those are, in my understanding of section 27, “and narrower issues” and that those issues “overlap” with the section 27(1) (c) issue. When therefore the court gets to the section 27(1) (c) issue, it is primarily concerned with whether in all the circumstances the applicant can be permitted to have the firearm or ammunition in his possession without danger to the public safety or to the peace.
[18] That necessarily means the court has a broad discretion. It can look at issues relevant to sections 27 (a) and (b) as part of “all the circumstances” in deciding whether the applicant can be permitted to have the firearm in his possession without danger to the public safety or to the peace.
[19] As with the exercise of all discretion, the court must endeavour to identify all the circumstances that relevantly bear on this issue, and in my opinion, having regard to conditions which it might impose on the certificate, decide whether allowing the appeal can be done “without danger to the public safety or to the peace”. And it is the phrase “without danger to the public safety or to the peace” that I think is important. I do not consider it means the elimination of all risk. I think it means whether if the appeal were allowed there is likely to be danger to the public safety or to the peace.
[20]Having regard to the undisputed fitness of the pursuer to hold a firearm certificate, his apparently unblemished record, his good reason for wishing to possess the revolver, the absence of any known health problems that would suggest otherwise, the conditions under which he will store and guard the revolver and its ammunition as referred to at paragraphs [33] and [34] of my earlier Judgment, and the remoteness of the location in which he will use it, I am satisfied on the balance of probabilities, subject to attaching certain conditions to his firearm certificate, he can be permitted to possess the firearm without danger to the public safety or to the peace.
[21] The conditions I am directing to be attached to his firearm certificate are those collectively identified by both Mr Brown and Mr Davies; Mr Brown’s neutrality on some of these means I do not need to record their submissions in any detail, save that Mr Davies suggested 30 rounds of ammunition and I have provided for 40.
[22] Mr Davies informed me the ammunition came in boxes of 25. Since the pursuer in his evidence anticipated using the revolver only rarely, he could run down a box of 25 and order a new one. While I don’t see any need for the pursuer to have more than two full boxes of ammunition at one time, I think he needs a reasonable margin if the revolver is to be loaded with six shots; balancing that need against the public safety issues identified by Mr Davies, I consider the maximum number of ammunition should be 40, not 30, rounds.”
[4] The defender now appeals the decision of the sheriff to the Sheriff Principal. Any appeal must be on a “point of law” (Firearms Act 1968, Sched. 5, Pt. III, para 4).
[5] The defender’s position before me was that the sheriff erred in law in allowing the appeal. In particular he erred in law in holding that the pursuer had a good reason to possess a six shot revolver, a two shot revolver being sufficient for his declared purpose, and in holding that the pursuer could be permitted to possess a six shot revolver without danger to the public or the peace. In particular :-
(i) The firearms legislation permits the possession and acquisition of handguns only for the specific reasons enumerated in sections 2 to 8 of the Firearms (Amendment) Act 1997, which include the humane killing of animals (s.3).
(ii) In considering an application for or variation to a firearm certificate to enable a person to possess or acquire a handgun, the Chief Constable (or the sheriff on appeal) must consider whether or not the type of handgun is suitable and appropriate for one of the enumerated purposes.
(iii) If the handgun is not suitable or appropriate for that purpose, for example because the capacity of the handgun is greater than is reasonably required for that purpose, the Chief Constable (or the Sheriff on appeal) can and should reject the application. In these circumstances the applicant would not have had a “good reason” in terms of section 27(1)(b).
(iv) The Sheriff, having held that a two shot revolver was sufficient for the purpose of the humane killing of animals, should therefore have rejected the pursuer’s appeal to be allowed to possess or acquire a six shot revolver.
(v) The sheriff further erred in law in holding that, if the pursuer could establish that he needed a handgun for the humane killing of animals, then the pursuer was entitled to possess any handgun regardless of its capacity or suitability for that purpose.
[6] I heard parties, for the convenience of counsel, in Airdrie Sheriff Court on 13 October2014.
Submissions for the Defender and Appellant
[7] Section 1 of the Firearms Act 1968 (“the 1968 Act”) imposes a requirement on any person wishing to possess or acquire firearms to obtain a firearms certificate. However, section 5 provides that certain weapons may not be possessed or acquired without the permission of the Secretary of State. This general prohibition includes handguns (s.5(1)(aba)).
[8] There are exceptions to the general prohibition against handguns set out in sections 2 to 8 of the Firearms (Amendment) Act 1997 (“the 1997 Act”). Each of these exceptions relates to a specific type and use of handguns, for example slaughter instruments, shot pistols, starting guns for races and firearms of historic interest. The exceptions include in section 3 a handgun which is “only for the use in connection with the humane killing of animals.”
[9] Counsel for the defender then referred to Part II of the 1968 Act and in particular section 27 (1) which I have set out in full at para [3] hereof. He also referred to sub section 27(2) which provides:
“ A firearm certificate shall be in the prescribed form and shall specify the conditions (if any) subject to which it is held, the nature and number of the firearms to which it relates, including if know their identification numbers, and as respects ammunition, the quantities authorised to be purchases or acquired and to be held at any one time thereunder.”
[10] It was submitted that the following propositions could be taken from the legislation:
(i) The Firearms legislation was intended to prevent the proliferation of firearms in order to prevent or limit their use for criminality and to protect the safety of the public. It does this by restricting the persons who may possess such firearms and their reasons for doing so. In the case of more dangerous firearms, such as automatic weapons and handguns, the restrictions were much greater
(ii) A person could only lawfully possess or acquire the specific firearms listed in his or her firearms certificate. This included listing the identification number of the weapon, or where a new weapon was to be acquired, the specific type of firearm, usually under reference to its calibre and firing capacity, not just a general class of firearm.
(iii) A person required a “good reason” to possess each specific firearm. In the case of handguns the good reasons are in effect the uses listed in sections 2 to 8 of the 1997 Act.
(iv) The uses of handguns permitted by sections 2 to 8 were intended to limit not just the use of handguns but also the type of handguns permitted, in that each use applies to a particular type of weapon. For example section 5 permits the use of handguns to start races. It was submitted that this was intended to permit the possession and use of starting pistols, not any type of handgun which could be used for that purpose.
(v) It followed therefore that, in considering an application to have a particular firearm added to a firearm certificate, a Chief Constable or sheriff must consider whether or not possession of the particular firearm was justified by the particular good reason put forward. If the firearm is of a greater capacity than is required for the “good reason”, then the application can and should be refused.
[11] Counsel pointed out that, for some reason, the sheriff had not prepared specific findings in fact. He merely summarised the evidence and left it to the reader to conclude what his findings in fact may have been. It was submitted on behalf of the defender that the following was a summary of appropriate conclusions from the evidence set out by the sheriff and his comments thereon:-
(i) A two shot revolver was sufficient for the humane killing of animals and in particular deer [1-128].
Deer stalking must be done using a rifle of suitable calibre (Deer (Firearms etc.) (Scotland) Order 1985 (S.I. 1985/1168), regs. 2 and 3). The evidence was that 90 to 95% of deer shot would be killed by the initial rifle shot. Of those deer which are not killed but only injured, deer who could still move should not be approached, but instead a second rifle shot should be used. Only relatively static injured deer should be approached. When at close quarters, a handgun can be used, but that it would rarely take more than one shot to kill such a deer. A pistol carrying two shots was more than adequate. Any animal requiring more than two shots from a handgun could not be considered humanely killed. [1-129, P6/19]
(ii) Two shot handguns were readily available in the UK. Six shot revolvers, such as Smith & Wesson revolvers of the type applied for by the Pursuer, can be adapted to fire only two shots. There were gunsmiths who would carry out the necessary modifications [1-127 and 1-131 to 1-132]
(iii) RSPCA officers used Smith & Wesson revolvers adapted to fire a single bullet for the humane dispatch of animals, such as deer injured in road accidents. They had no concerns about the safety of such weapons and have been able to find gunsmiths to adapt the weapons [1-103 to 1-111].
(iv) The British Association of Shooting and Fishing advised that handguns restricted to one or two shots are adequate for the purpose of humane dispatch of animals including injured deer. They are not aware of any concerns about the safety of such weapons. [1-81 to 1-85]
(v) The Home Office guidance recommends that single or two shot pistols are suitable for the humane killing of animals. [1-113, P6/11]
(vi) The Pursuer’s objections to using a two shot handgun were either not supported by the evidence, for example his concerns about safety or lack of availability or insurance, or were irrelevant, such as his concern about additional cost. The sheriff states “against that background, it is somewhat difficult for me to work out the pursuer’s actual objections to acquiring a Smith & Wesson 6 shot from the USA…and having it modified to a 2 shot in the United Kingdom. [1-130].
[12] The main issue, counsel for the defender submitted, was what constituted a “good reason” to possess this revolver in terms of section 27(1)(b) of the 1968 Act. Counsel noted that the sheriff’s main reasoning was set out in paragraphs [1-193] to [1-219] which I have set out in full at pages 3 to 6 hereof.
[13] Counsel for the pursuer submitted that the sheriff’s reasoning was incorrect as a matter of law. On a proper construction of the 1968 Act in any application for permission to possess or acquire a firearm the applicant must show a good reason for possession of the particular firearm. This applied to all firearms, whether handguns or rifles, although in the case of handguns the good reasons were much more restrictive as a result of the 1997 Act. Accordingly it could not be correct to suggest that, if an applicant had a good reason for possessing a particular type of firearm or handgun, he was automatically entitled to possess any type of firearm or handgun that could be used for that purpose. In a scheme intended to limit the proliferation of firearms and in particular firearms of greater capacity, it made obvious sense to restrict the grant of permission to possess firearms to those which fulfil the required purpose and not firearms of significantly greater capacity. In this respect the scheme concerning firearms certificates was different from that applying to shotgun certificates. The latter enabled the applicant to possess any number of a class of weapons, namely shotguns, whereas a firearms certificate is limited to the specific firearms for which good reason has been shown.
[14] Further, the sheriff had erred in suggesting that the Chief Constable was seeking to impose conditions on the certificate. A firearms certificate must specify the nature of the weapon permitted. To specify that the handgun is a two shot revolver is merely to specify the type of handgun which is permitted. The certificate also specifies the calibre of the handgun. Similarly the pursuer’s rifles were specified on the certificate as “7mm Bolt Action Rifle Remington” and “.22/250 Bolt Action Rifle Remington”. Accordingly, specifying the capacity of the handgun was merely to specify the nature of handgun which the pursuer was permitted to possess or acquire as required by the scheme of the legislation.
[15] In any event, the Chief Constable was entitled to impose conditions, beyond those required by statute (as the sheriff had required be done in his interlocutor). There was no restriction on the nature of those conditions and it was submitted that a condition applied in the interests of public safety to limit the capacity of a handgun was entirely legitimate.
[16] It could not be correct to suggest that the Chief Constable, or sheriff on appeal, was not required to make an objective assessment of the pursuer’s reasons for wanting a particular type of handgun. The scheme of the legislation was to permit the possession of firearms for legitimate reasons specified in the statute. The Chief Constable or sheriff was required to satisfy him or herself that there were objective and rational reasons for the possession of firearms. It could not be the case that an irrational reason for possessing a particular type of weapon could be regarded as a “good” reason. In these circumstances, the Chief Constable or sheriff required to make an assessment of whether or not the pursuer’s reasons for possessing a particular handgun were supported by the evidence.
[17] Accordingly, it was submitted that the sheriff had erred in law in his approach to the construction of the 1968 and 1997 Acts. The correct approach would have been to hold that the applicant required to show that he had a good reason to possess the particular type of handgun sought. Further, having held that a two shot revolver was sufficient for the purpose of humane dispatch of animals, such as deer, he should have held that the pursuer had not established, the onus being on the pursuer, that he had a good reason to possess a six shot handgun.
Danger to the Public Safety or to the peace. (s27(1)(c) of the 1968 Act).
[18] In his second judgment the sheriff held that the pursuer could be allowed to possess the handgun without danger to the public safety or to the peace [2-20].
[19] Esto the sheriff was correct in his approach to section 27 (1)(b), then it was submitted that the Appeal should have been refused under section 27(1)(c). If the sheriff’s narrow approach to s.27(1)(b)was correct, then it must be the case that the additional danger in the pursuer possessing a handgun of significantly greater capacity than required by his stated purpose must be considered under section 27(1)(c).
[20] It was well recognised that handguns were of particular attraction to criminals because they can be easily concealed. Handguns with a great capacity for rapid fire are of even greater attraction. Accordingly, there was a greater danger to the public safety and to the peace in such weapons being in circulation, even if originally intended for legitimate uses.
[21] Further, it was submitted that the pursuer’s position was that he intended to carry the handgun while stalking, i.e. while on his own and in remote places. He would therefore be at greater risk of being targeted for attack, as indeed would stalkers more widely if it was accepted that they were generally entitled to possess and carry handguns.
[22] Essentially the pursuer’s argument was that, if the Chief Constable could not consider issues of safety to the public under section 27(1)(b), it surely was relevant in a consideration of section 27(1)(c). It was submitted that the provisions of section 27(1)(c) related to the particular firearm. The Chief Constable was entitled to take the view that there would be danger to the public if there was a proliferation of handguns in the public domain of significantly greater capacity than was required for the purpose for which the certificate was granted. Plainly weapons that could rapidly fire up to 6 rounds of ammunition were a greater danger to the public than a weapon which could fire 2 rounds. Handguns were particularly attractive to criminals as they were easily concealed. If the pursuer was allowed to have a certificate to stalk deer with a 6 shot handgun, there was a greater risk to the public than a 2 shot handgun. The weapon would admittedly be stored at home, but it was the pursuer’s intention to carry it when out stalking and generally on his own. He would be vulnerable to criminal activity.
[23] For these reasons there was greater danger to the public safety and to the peace as a result of possession of a 6 shot handgun as opposed to a 2 shot handgun. The sheriff erred in law in failing to take into account this factor.
[24] Counsel referred me to two English cases, involving the interpretation of section 27(1) of the 1968 Act where two Circuit Judges supported his construction of the legislation:-
(i) Regina v Ashbrooke unreported, 1 April 2005 at Isleworth Crown Court. Judge McGregor Johnston stated:-
“I do not accept on the evidence presented to me, that a standard semi-automatic pistol with a full magazine could possibly be justified, and, indeed Mr Ashbrooke himself, when this matter was raised, has indicated that he would have no problem with being permitted to have a pistol limited to two or three rounds.”
In that case the certificate was granted on the understanding that the revolver could only be loaded with a maximum of two rounds.
(ii) Wells v Commissioner of Police for the Metropolis, unreported judgement dated 25 July 2014 at Kingston Upon Thames Crown Court (this judgement was given after the sheriff had issued his judgement in this case). In that case it was submitted the correct approach to section 27(1)(b) was to be found in the judgement of the sheriff in this case. However, Judge Barts Q.C., giving the judgement of the court stated;-
“It is not for us to go into detailed reasons at this hour but we do not, with respect share the construction of the section put on it by the learned sheriff because, in our view it goes against the proper construction of the statute…”
[25] Essentially the case for the defender was that it was clear from the evidence that the pursuer had not established a good reason for having certificate for a handgun of greater capacity than 2 shot. It was submitted that the sheriff had erred in his interpretation of the 1968 and 1997 Acts. In particular the sheriff had erred in failing to hold that the pursuer must establish that he had a good reason to possess a handgun of the specific type he wishes to possess. On the facts found by the sheriff and on a correct interpretation of the statutory provisions, the sheriff should have refused the appeal by the pursuer. In these circumstances it was submitted that I should sustain the appeal and recall the sheriff’s interlocutor. This would leave the Chief Constable’s decision of 4 February 2011 in force.
Submissions for the Pursuer and Respondent
[26] Counsel submitted I should refuse the appeal and adhere to the sheriff’s judgement. The crux of this appeal was whether it was an appropriate policy for the pursuer to be allowed a firearm certificate for a weapon of no more capacity than was necessary. The fundamental point at issue was that the Chief Constable had placed a policy gloss on the statute which he was not entitled to do. At the insistence of the Chief Constable, there were imposed conditions higher than parliament had set. All that section 27 (1)(b) required was for the applicant to have a good reason. There was no test in the statute of necessity or that nothing else would suffice. Parliament could have made such a provision, but had not done so.
[27] Historically there was no restriction posed on applications for firearm certificates. Over time the view was taken that it was necessary to take into account wider policy considerations and the 1997 Act was in response to the Dunblane tragedy. However the essence of this case was the question of a statute restricting the liberty of the subject. The change in the 1997 Act was to render certain matters unlawful which had previously been lawful. However the consequence was that it was not possible to go beyond the balance which parliament had struck.
[28] The principal argument on behalf of the pursuer was that, in terms of section 27(1)(b) of the 1968 Act he had a good reason for possessing a .38 6 shot Smith & Wesson hand gun. The pursuer’s position was that he wished to acquire an off the shelf Smith & Wesson .38 calibrated revolver. This company do not make a 2 shot version, nor do they sell or approve a kit to modify a 6 shot revolver. Counsel did not challenge the sheriff’s finding that 2 shot revolvers were available (see 12/2 on page 5 of judgement 2). The pursuer’s good reason, in terms of section 27(1)(b), was that he is an experienced deer stalker and that it was necessary for the humane dispatch of injured animals. It had never been disputed that this was so. The Chief Constable had granted a certificate, albeit for a restricted version (namely, 2 shot) on the basis that the reason was for deer stalking and for the humane dispatch of deer. This was seen by the Chief Constable as a good reason. There was no suggestion that it was a sham reason. There was no suggestion that the firearm in question was not fit for the approved purpose. It was a weapon squarely within the class of weapons parliament had provided may be possessed for the humane dispatch of deer.
[29] The Chief Constable has insisted that the 6 shot was not necessary for the purpose for which he wished it. A 2 shot revolver would have been sufficient and therefore there was no good reason.
[30] It was submitted that this subverted the statutory scheme. Parliament had not set a public policy balance by using such word as “a firearm of no greater capacity than absolutely necessary”. Parliament could have done so, but it had not. It could have made a specific term in the legislation of a “firearm suitable for the humane dispatch of deer as described by regulation” but it had not. Instead, parliament had enacted that a good reason for the possession of a handgun was for the humane dispatch of deer. That was the case here. It was submitted that there was no warrant in the statute for the Chief Constable taking the view that, if something less restrictive would do, the applicant ceased to have a good reason. It was submitted, as the sheriff had found, the applicant only required to demonstrate a good reason and no more. In this case the good reason was the humane dispatch of deer.
[31] Counsel for the pursuer referred to the case of Jeans v Chief Constable of the Northern Constabulary, unreported, Sheriff Alexander Pollock, Inverness Sheriff Court 13 July 2005. That case involved an application for a certificate for a revolver to be used for deer stalking. The application was for a .44 magnum revolver, which is higher than .38. In that case at para 22 of his Note the sheriff stated that the proper approach to section 27(1)(b) was ;
“1) What are the reasons? 2) Are these reasons good ones?”.
Having summarised the reasons which had given in that case the sheriff concluded at para 65:-
“The critical question then becomes whether those amount to “a good reason” within the statute.”
It was submitted I should take from the judgement of Sheriff Pollock in that case the following propositions:-
a) What is required is a good reason – no more, no less. There is no test of necessity.
b) This is a statute restricting the liberty of the subject. It should be construed strictly. Parliament could readily have imposed a more restrictive test but had not done so.
c) The Chief Constable in the 2005 case did not advocate a restriction on the modification of the .38 revolver to a 2 shot.”
[32] It was submitted that I should take the view that there was a good reason for possession of the handgun sought. The fact that there might also be a good reason for a different handgun did not mean there was not a good reason for the application in respect of the one which was made. This was fundamentally the import of the sheriff’s conclusion. It was not necessary, to establish a good reason, that the applicant must exclude other possible decisions. It was submitted that the sheriff was correct in the conclusions he reached in paras 198, 199, 203 ,204, 205 and 206 which I have set out at pages 4 and 5 hereof.
[33] It was noted that I was asked to find that there had been an error in law in the sheriff’s approach. However, the sheriff had made a finding that there was a good reason and concluded that the pursuer had satisfied the test. It was submitted that the appeal was putting a gloss on the statute as importing into the words “a good reason” something involving a higher test which included necessity. It was not accepted that the pursuer had to negative a proposition that a 2 shot revolver was sufficient.
[34] The proposition for the pursuer was a straight forward one. It was not extravagant for him to say “I want an off the shelf, tried and tested market leader with a warranty rather than something which has been modified.” It was suggested the pursuer’s position was that he had no confidence in modifications. If parliament had intended that Chief Constable could specify a particular kind of handgun, it could have so enacted.
[35] I was referred to section 44(2) of the 1968 Act which provide;-
“An appeal shall be determined on the merits and not by way of review.”
The proceedings before the sheriff were in fact a rehearing. The sheriff’s conclusions on matters of value judgements overtook any conclusion reached by the Chief Constable. The pursuer’s basic position at this appeal was that the Chief Constable was right and the sheriff was wrong. There was no error of law on the part of the sheriff. It was submitted the sheriff’s conclusion on good reason was correct and was supported by his conclusions on the evidence.
[36] It was submitted that in all of the circumstances the pursuer could be permitted to have the firearm and ammunition in his possession without danger to the public safety or to the peace. It was submitted that the certificate indicated that the Chief Constable was satisfied on all three limbs of section 27(1) of the 1968 Act provided the revolver was modified to 2 shot. It was the respondent’s and the sheriff’s position that the pursuer had a good reason for possession of the 6 shot revolver, namely for the humane dispatch of deer. It had been submitted that the sheriff was correct on that point, and the pursuer did in fact have a good reason to possess a 6 shot revolver.
[37] The defender had failed before the sheriff on the public safety issue. It was said that the risk of the revolver getting into the wrong and possibly criminal hands was relevant. It was submitted that it could not be in respect of want of care on the part of the applicant because no issue was taken with the requirement of section 27(1)(a) that he was fit person. The possible risk was that the revolver fell into criminal hands without fault on the part of the appellant e.g. he was overpowered by criminals who thereafter would use a 6 shot as opposed to a 2 shot revolver. It was however submitted that modifications were reversible. Substantial damage could be done with a 2 shot revolver in criminal hands e.g. bank teller being the subject of assault and robbery. The only point for the Chief Constable was that the more shots, the bigger the risk. It was submitted there required to be a balance, on the one hand the lawful activities against the need to curtail risk if the weapon fell into unlawful hands.
[38] Whatever the Chief Constable’s view, the sheriff reached his judgement after a reasoned assessment of the risks and the evidence presented to him. If the sheriff’s judgement differed from that of the Chief Constable, the view of the sheriff would prevail. It was submitted that if the sheriff was wrong, this was an error of fact and not of law. It was then not open to me to intervene. I was asked to refuse the appeal.
[39] As far as expenses were concerned, parties were agreed that expenses should follow success and that I should certify the appeal as suitable for the employment of counsel.
Decision
[40] In December 2010 the pursuer applied for the renewal of his firearm certificate to include, for the first time a .38 pistol for the humane dispatch of deer and other animals. Following discussion between the firearms licencing officer and the pursuer it was agreed to treat the pursuer’s application as for a .38 2 shot revolver. His licence was renewed on 17 January 2011 with an authorisation to purchase or acquire a “.38 2 shot revolver”. The pursuer then applied for a variation of the firearm certificate to permit him to purchase a 6 shot revolver. By letter dated 4 February 2011 the defender refused the variation stating that “a 2 shot revolver is entirely adequate and proportionate for your declared requirement (the humane killing of injured animals) and there is no justification to possess a revolver of higher capacity”.
[41] The pursuer appealed this decision to the sheriff under section 44 of the Firearms Act 1968 and by interlocutor dated 27 June 2014 directed the defender to vary the pursuer’s firearms licence to permit him to purchase or acquire “a .38 calibre Smith & Wesson revolver” subject to certain further conditions. This permitted the pursuer to purchase a 6 shot revolver.
[42] I have set out fully in this Note the relevant sections of the sheriff’s notes of 2 December 2013 and 27 June 2014. I have also recorded in substantial detail the very helpful submissions with which I was provided by parties at the appeal before me. Essentially, the position for the appellant was that the sheriff erred in law in his interpretation of the 1968 and 1997 Acts. In particular the sheriff erred in failing to hold that the pursuer must establish that he has a good reason to possess a hand gun of the specific type he wishes to possess. On the facts found by the sheriff and on a correct interpretation of the statutory provisions, the sheriff should have refused the appeal by the pursuer. I should accordingly sustain this appeal by the defender and recall the sheriff’s interlocutor.
[43] The sheriff has not made formal findings in fact on the evidence which he heard in connection with this appeal. He has merely recorded the evidence and made certain comments thereon. I have considered the evidence and the sheriff’s comments. In my opinion, the summary of the evidence and the sheriff’s conclusions, which were suggested by counsel for the defender, and which I have recorded at para 11 hereof, are appropriate and I proceed on that basis. Accordingly I proceed on the basis of the following facts:-
1. A 2 shot revolver is sufficient for the humane killing of animals and in particular deer.
2. 2 shot handguns are readily available in the UK. 6 shot revolvers, such as Smith & Wesson revolvers of the type applied for by the pursuer, can be adapted to fire only 2 shots. There are gunsmiths who would carry out the necessary modifications.
3. RSPCA Officers use Smith & Wesson revolvers adapted to fire a single bullet for the humane dispatch of animals, such as deer injured in road accidents. They have no concerns about the safety of such weapons and have been able to find gunsmiths to adapt the weapons.
4. The British Association of Shooting and Fishing advises that handguns restricted to 1 or 2 shots are adequate for the purpose of humane dispatch of animals including injured deer. They are not aware of any concerns about the safety of such weapons.
5. Home Office guidance recommends that single or two shot pistols are suitable for the humane killing of animals.
6. The sheriff was unable to work out the pursuer’s actual objections to having a 6 shot Smith & Wesson revolver modified to a 2 shot in the UK.
[44] I have given very careful consideration to the detailed submissions which have been made to me. In terms of section 27(1) of the 1968 Act a firearm certificate shall be granted where the Chief Officer of Police is satisfied (a) that the applicant is fit to be entrusted with a firearm to which section 1 of the Act applies….(b) that he has a good reason for having in his possession, or for purchasing or acquiring, the firearm…. and (c) that in all the circumstances the applicant can be permitted to have the firearm or ammunition in his possession without danger to the public safety or to the peace.
[45] I accept the submissions which have been made on behalf of the defender. I do not accept, insofar as not coinciding therewith, the submissions on behalf of the pursuer. I consider that, on a proper construction of the 1968 Act, any application for permission to possess or acquire a firearm, the applicant must show a good reason for possession of that particular firearm. In a scheme intended to limit the proliferation of firearms and in particular firearms of greater capacity, it makes obvious sense to restrict the grant of permission to possess firearms to those which fulfil the required purpose and not firearms of significantly greater capacity. In my opinion in failing to take that important factor into account in reaching his decision the sheriff erred in law.
[46] It was suggest on behalf of the pursuer that the Chief Constable had erred in seeking to impose conditions on the certificate in specifying that the revolver required to be 2 shot. The firearm certificate must specify the nature of the weapon permitted. To specify that the revolver should be 2 shot revolver is merely to specify the nature of the revolver which is permitted. Section 27 (2) of the 1968 Act provides;-
“A firearm certificate shall…. specify … the nature and number of the firearms to which it relates…”
It has to be noted that it was because the nature of the firearm requited to be specified that the pursuer’s rifles were specified on his certificate as “7mm Bolt Action Rifle Remington” and “.22/250 Bolt Action Rifle Remington”. In my opinion in specifying that the pursuer was entitled to acquire a .38 2 shot revolver, the defender was specifying the nature of the weapon in terms of section 27(2).
[47] The sheriff found in fact that a 2 shot revolver was sufficient for the purpose of the humane dispatch of animals such as deer. In view of that finding, it was not open to the sheriff to hold that there was a good reason for the pursuer to possess a 6 shot handgun. In so doing, the sheriff erred in law.
[48] I do not accept the submission on behalf of the pursuer that the decision in this case represents a policy gloss on the statute by the Chief Constable which imposed conditions far higher than parliament had set. It was argued that all section 27(1)(b) required was for the applicant to have a good reason. The pursuer had satisfied this requirement by stating that the good reason was for the possession of the 6 shot handgun was the humane dispatch of deer. I accept the submission for the defender that the firearms legislation was intended to prevent proliferation of firearms in order to prevent or limit their use for criminality and to protect the safety of the public. I consider it appropriate for the Chief Constable or, on appeal, the sheriff to consider whether or not possession of the particular firearm was justified by the particular good reason put forward. If the firearm was of greater capacity than was required for the good reason, then the application should be refused. I do not accept that the Chief Constable’s decision put a policy gloss on the statute which was not intended.
[49] I do not accept the argument put forward for the defender that the issue here was a question of fact and not of law. It was said that the defender made a decision on the evidence and I was not entitled to intervene. I do not agree. In my opinion the sheriff erred in law in failing to take into account, in an application for a 6 shot revolver for the humane dispatch of deer, that a 2 shot revolver was sufficient for this purpose. There was no good reason for the certificate to allow a 6 shot revolver.
[50] My decision on that matter is sufficient to dispose of this appeal. Although it is not essential for my decision, it is proper that I comment on the esto case for the defender. It was submitted that, esto the sheriff was correct in his approach to section 27(1)(b) to the effect the pursuer had put forward a good reason, then the appeal should have been refused under section 27(1)(c). The essential point for the defender was that, if the sheriff’s narrow approach was to section 27(1)(b) was correct, then it must be the case that there was additional danger to the public in the pursuer possessing a handgun of significantly greater capacity than required by his stated purpose. I accept that it is well recognised that handguns are of particular attraction to criminals because they can easily be concealed. Handguns with greater capacity for rapid fire are of even greater attraction. Someone in the pursuer’s position, while carrying a handgun on his own in a remote place whilst stalking, could be targeted for attack by criminal elements and his handgun removed from him by force. In my view it is a matter of public safety that in these circumstances a handgun of greater capacity should not fall into criminal hands. On any given occasion, if a criminal obtained possession of a 6 shot revolver, he would be able to fire 6 rapid shots, whereas he would only be able to fire 2 shots if he had possession of a 2 shot revolver. A comparison with Dunblane is only too obvious. This is a significant issue. In his decision under section 27(1)(c), in his second note, the sheriff states:-
“[16] I also agree that the more potentially lethal the firearm is and the more it’s potential attraction to criminals if stolen are “circumstances” relative to the 27(1)(c) issue”. …
[20] “Having regard to the undisputed fitness of the pursuer to hold a firearm certificate, his apparently unblemished record, his good reason for wishing to possess the revolver, the absence of any known health problems that would suggest otherwise, the conditions under which he will store and guard the revolver and it’s ammunition as referred to at paras 33 and 34 of my earlier judgement, and the remoteness of the location of which he will use it, I am satisfied on the balance of probabilities, subject to attaching certain conditions to his firearm certificate, he can be permitted to possess the firearm without danger to the public safety or to the peace.”
There is no emphasis in the conclusion the sheriff reaches in para 20 of his note on greater danger to public safety and to the peace in a situation where a 6 shot revolver as opposed to a 2 shot revolver is in criminal hands. Although the weapon would be stored at home, when the pursuer carried it with him when stalking and generally on his own, he would be vulnerable to criminal activity. It was the Dunblane tragedy which prompted the 1997 Act. That tragedy involved a “criminal” carrying a weapon at random. It must surely be one of the lessons of Dunblane that public safety demands that, if a certificate is to be granted to an individual to possess or acquire a firearm, the capacity of the weapon for which the certificate is granted should not be greater than what is reasonably required for the specified purpose.
[51] In failing to attach sufficient weight to that issues in his balancing exercise in considering the application of section 27(1)(c) I consider the sheriff erred in law.
[52] For the reasons I have given, this appeal fails and I recall the sheriff’s interlocutor of 27 June 2014. I sustain the defender’s decision of 4 February 2011 to refuse the pursuer’s application for variation of his firearm certificate.
[53] Parties were agreed that expenses should follow success. I have awarded the expenses of the appeal before the sheriff and the appeal before me to the defender and appellant. I have certified the cause as suitable for the employment of junior counsel.