I intend to use my article this issue to highlight the unfair position of the appellant in Firearms Act appeals. This may be you one day, so it’s an important topic to be aware of. In several sets of circumstances the law on this is causing serious injustice. In order to spell out my message I need to revisit the relevant legal principles and the case law.
First, I am referring here to appeals against a chief of police’s revocation of, or refusal to grant or renew, a firearms or shotgun certificate. These appeals are heard in the appellant’s local crown court by a crown court judge sitting with two magistrates. Although the majority of crown court business concerns come under the criminal justice system, Firearms Act appeals are emphatically not criminal proceedings. They are heard under the firearms rules and the crown court rules, and are variously described as being part of the ‘preventive justice system’ and also as being ‘regulatory’ in nature. It perhaps only adds to the complications in defining these proceedings if I say that they derive from the former (now long defunct) quarter sessions schedule of business, which also dealt with liquor licensing, but it may help readers to know this as it goes some way towards explaining why these appeals are such strange animals as far as their costs are concerned.
When a certificate holder is revoked or refused a renewal, or a would-be certificate holder is refused a grant, then he may appeal to his local crown court. He has 21 days in which to do this, although he can apply for permission to appeal late, which may be allowed if he has a reasonable excuse. If he does not appeal, he will not be able to lawfully hold or continue to hold firearms or shotguns, as the case may be. He will only be able to shoot under the limited exemptions in section 11 of the Firearms Act, which are of little or no use to most gamekeepers.
In deciding whether or not to appeal, the prudent prospective appellant will consider his likely liability for legal costs. These will almost certainly be flagged up to him in the chief officer’s letter of refusal or revocation. This will likely inform him that if he is unsuccessful in his appeal, the policy of the police is to seek an order that its legal costs be paid by him. Not infrequently, firearms enquiry and police officers reinforce this message, sometimes so emphatically and persistently that it’s obvious they have been trained to do this, presumably to deter appeals. Be this as it may, the prospective appellant will have to pay his own costs whatever the outcome. He will not simply be granted an order that the chief officer of police pay his costs unless he can demonstrate bad faith on their part. This means that even a successful appellant is likely to pick up a big bill. Several years ago I recall Bill Harriman, head of firearms at BASC, estimating a ballpark legal costs figure of £10,000 for a Firearms Act appeal, and that’s certainly a possible given the charge out rates of some solicitors and the complexity of some appeals. So, win or lose, the appellant will need a deep pocket, and an even deeper one if he loses and has to pay the police costs.
This most unsatisfactory state of affairs – the virtual immunity of the chief officer of police from a costs order – arises from the cases of ‘Goodman & Newton and The Chief Constable of Derbyshire Constabulary’. Messrs Goodman and Newton were deerstalkers of impeccable character and considerable experience. Their firearms certificates were partially revoked after the Firearms Amendment Act 1997 came into force, in relation to .38 and .32 pistols that they respectively owned. They wanted to retain their pistols for the humane dispatch of injured deer. The crown court apparently heard a great deal of evidence as to this – you will remember this legislation was introduced after the Dunblane murders – and having considered all this very carefully, allowed the appeals of both Goodman and Newton. In his judgement, his honour Judge Morrison specifically ‘acquitted’ the chief constable of any bad faith, commenting that he had a duty to follow advice and implement the law as he saw it.
Judge Morrison then made an order that the appellants’ costs be paid by the chief constable on the basis that they had had to come to the crown court, and that this court had decided that the partial revocation of their certificates was wrong.
This costs order was then made the subject of an appeal by the chief constable and was overturned. The reasons given for this were, first that the chief constable was acting as a licensing authority. Secondly, a number of cases from liquor licensing law procedure were cited, such as the Totnes Justices case. In his judgement, Lord Justice May decided that a costs order against a police firearms licensing authority should not be made unless the police had acted in bad faith or had run a case which was without foundation, born of malice, or out of some improper motive. The court took judicial notice of the reasonableness of the chief constable being careful “in the light of public concern and the need to protect the public against dangerous handguns”.
So, even though the cases were decided against the chief constable, no order for costs was made against him because it could not be said he had acted unreasonably or in bad faith.
The ‘Goodman & Newton’ case is so well-known an authority that barristers acting for appellants have mainly abandoned trying to get costs against the police in these appeals. As in a minority of cases there is clearly concern as to whether the chief constable, his officers, or firearms department staff, have acted reasonably and in good faith, the entrenchment of this case authority – coupled with the difficulty of demonstrating bad faith – either causes appellants to forego appealing or, if they proceed, to risk significant potential costs penalties. This is aggravated by legal aid not being available to appellants in these appeals.
My company, Shooting Law Ltd. – see www.shootinglaw.co.uk – seeks to mitigate these problems by acting on an advisory basis only on behalf of appellants conducting their own cases. Shooting Law advises from beginning to end and also (if required) introduces the appellant client to one of the very few specialist firearms law barristers in this field and arranges for this barrister to represent the client direct, under the recently introduced direct public access provisions. With Shooting Law’s costs in a straightforward case being around £2,000, plus out of pocket expenses, there’s a huge potential saving for the client adopting this route to an appeal rather than through traditional solicitor representation.
It is a given fact that revocation is an occupational hazard for gamekeepers and, as their certificates are so important in their occupation, they would be prudent to build up a savings account so that they can pay for representation if they are unfortunate enough to have their certificates revoked and require legal advice and assistance in an appeal.