Evidence of unfitness

David Barrington Barnes looks at new guidance to police on firearms and shotgun certificates that deal with understanding what makes a person unfit to hold firearms.

Readers may or may not be aware that the police bible in firearms law administration was, until recently, a 2002 Home Office publication entitled “Firearms Law: Guidance to the Police”. This has now been replaced by a 2013 guidance document.

In the course of a client’s recent appeal relating to the revocation of his shotgun certificate, I have been having a look at the updated guidance in connection with domestic violence. In the 2002 version, Chapter 12 dealt with the fitness of a person to be entrusted with a firearm. It set out a list of factors that might make a person unfit, such as previous convictions, particularly convictions involving the use of violence; and offences that demonstrated a lack of self control such as drink driving. Evidence of “intemperate habits” might also be used as evidence of unfitness.

Tucked into these categories of misbehaviour that might make a person unfit was “evidence of aggressive or anti-social behaviour which may include domestic violence or evidence of hostility likely to lead to violent acts against particular groups categorised by, for example, race, gender, sexual orientation, religion or class”. Also relevant was, “Evidence of disturbing and unusual behaviour of a kind which gives rise to well-founded fears about the future misuse of firearms”.

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New guidance to police introduced in 2013 has strengthened the section regarding an applicant’s fitness to hold a certificate

While I was a solicitor, and since then as a director of Shootinglaw Ltd., I have advised on a number of cases in which domestic violence was alleged by the wife or partner of the certificate holder, and the 2013 version has been updated to ‘reinforce the proper assessment’ with regards to this. Some of these allegations were true, while a number of others were either completely false or grossly exaggerated. One of these resulted in the revocation of the certificate holder, who for reasons of confidentiality I will call Mr A. He was a man of previous good character, as most certificate holders are. He kept a couple of shotguns, which he used for clay target shooting. On the personal front, Mr A had for some years enjoyed an admittedly volatile relationship with a very lively lady, Miss B, and the two of them had children together.

After the eventual breakdown of this relationship, Miss B was in possession of substantial assets of Mr A and took steps to avoid returning these to him. When Mr A pressed for the recovery of them, Miss B made a complaint to the police that Mr A had threatened to shoot her. Her complaint resulted in Mr A being arrested and interviewed for potential Firearms Act matters and for offences against the persons. Although he was never charged or prosecuted, his shotgun certificate was revoked and he issued a crown court appeal. That he succeeded in this was mainly due to him fortunately being able to demonstrate that Miss B’s allegations were untrue. He won his appeal after a two-day hearing and was able to retrieve his shotguns from the RFD with whom he had stored them, and resume his recreational shooting.

Turning to another very recent case – that of Mr C – the new police guidelines were referred to and relied on by the police licensing manager. These now provide more assistance to him in relation to applicants who have or may have been involved in domestic incidents. Paragraph 12.28 now reads:

“When considering applications for the grant or renewal of firearm/shotgun certificates particular attention should be paid to domestic incidents, specifically violence and patterns of behaviour by the applicant which give cause for concern… An incident of domestic violence taking place should trigger a need for the police to review whether the certificate holder can be permitted to possess the firearm or shotgun without danger to the public or to the peace.”

Then in 12.29 the new guidance reads: “In general evidence (including a history) of domestic violence and abuse will indicate that an individual should not be permitted to possess a firearm or shotgun. Each case must be assessed by the police on its merits, on the basis of the strength of the evidence available and all the circumstances of the case”.

In Mr C’s case, he had been in an unhappy, prickly marriage for many years. His divorce, it seems, was as difficult as his marriage and his estranged wife introduced allegations of domestic violence. These were picked up by the police and Mr C was prosecuted, notwithstanding his steadfast denial of any assault or domestic violence. However, when it came to the magistrates court hearing, Mrs C withdrew her statement and Mr C was found not guilty of the assault offence with which he had been charged. By then, Mr C’s shotgun certificate had been revoked, and in resisting his appeal the firearms manager relied on Mrs C’s hearsay evidence as to the domestic violence, as she would not come to the appeal hearing. By this time, I should add, Mr and Mrs C had a considerable time since separated and divorced and moved on in their respective lives, so there was really no ‘continuing’ safety issue. Mr and Mrs C had little or no contact anymore.

In Firearms Act appeals, the court can admit hearsay evidence because of the authority of ‘Kavanagh v The Chief Constable of Devon & Cornwall’ and while this is no doubt desirable because it enables the crown court tribunal to have as much evidence as possible before them when they decide an appeal, they should in all fairness treat hearsay evidence with considerable scepticism, as it is often little better than gossip

In Mr C’s case, the appeal court accepted the hearsay evidence – the absent wife’s untested allegations of violent incidents and occasional abuse – notwithstanding the appellant’s steadfast and repeated denials. His appeal was dismissed because of these. Under the new guidance it seems likely that, should Mr C re-apply when a period of years has elapsed and there is more clear blue water between him and his former wife’s allegations, he may have these deployed against him once again on the basis that he has a “history” of being violent and/or abusive in his domestic life. Given the tenuous, hearsay nature of the recent allegations on which his appeal foundered, this would be a serious injustice. However, the official Home Office thinking now appears to be that an incident or incidents of domestic violence in one relationship are likely to be repeated in a later one, and therefore make the perpetrator a danger to the public or to the peace if he has a shotgun.

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Whether it is for work or recreation, losing a certificate can have a big impact on a person’s life

 

If such revocations arising from domestic and indeed other violence incidents are now going to be ‘forever’ then this is likely to occasion great injustice and anger. I am personally aware of a number of certificate holders in a ‘hot’ domestic situation who have fairly cheerfully accepted a revocation on the understanding that, when things have calmed down and they and their warring partner have moved on, then they can re-apply successfully for a shotgun certificate again. That seems fair enough to me. Constructing models suggesting the likely repetition of ‘domestics’ in future relationships and depriving persons of their shotgun certificates forever and a day does not. That’s a heavy-handed approach tainted with injustice, and never more so than when the original revocation is founded on hearsay.

If this approach becomes prevalent in the case of certificate holders who have been involved in alleged assaults and arguments, such as most gamekeepers will have done now and then in the course of their careers, then their very careers are likely to be at risk and the profession is going to have to exercise even more self-control and reticence in dealing with the public than it does now. Greeting a dog walker in a game cover with a few “freddies” may be a country mile away from threatening him with a gun, but is the sort of approach that could lead to the revocation of certificates. And, in this context, I’ve no doubt some gamekeepers may wish to review the way they go on if they wish to retain their certificates.

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Posted in Countryside Law

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