Form and suitability

On 2 June 2010, Derrick Bird murdered twelve people and injured eleven others in Cumbria with legally held firearms. One month later, following the usual cries for tighter gun controls that follow such horrific events, the House of Commons Home Affairs Committee announced its intention to hold an inquiry to examine the need for changes in the licensing regime as a means of preventing gun violence.

Their report, published on 20 December 2010, made numerous recommendations, including early consultation on reforming outdated, confusing and piecemeal legislation and rules stretching back for over 40 years, and the creation of a single licensing system for shotguns and section 1 firearms.

In September 2011, the Government published its response, stating in the introduction that this is a complex and often emotive issue, and noting that the vast majority of crimes involving firearms are carried out with illegally-held guns and that the proportion of licence holders who use their guns in crime is tiny albeit on rare occasions with tragic consequences. It was unconvinced about the need for a complete overhaul, believing that the best way forward in the short term was to update the existing Home Office Guidance to Police, last revised in 2002. It was also not persuaded to go along with the recommendation that shotguns should be subject to the same licensing considerations as section 1 firearms. It recognised, however, possible advantages from having a single application form.

Two years on, and the new application form has been drafted and legislation enacted to bring it into play. The Firearms (Amendment) Rules 2013, which come into force on 1 December 2013, introduce a new single application form for firearms and shotgun certificates, replacing the two separate forms that are currently in use.

The new form looks innocuous enough. It follows a similar format to the two that it replaces. Information not previously requested includes an email address, which is as one might expect. The most obvious advantage of the new form is for those applying for both a firearm certificate and shotgun certificate simultaneously: the applicant need only submit a total of four photographs.

Given the no doubt rigorous drafting process which it has undergone, it is disappointing to see a number of typos. The new form refers to a “British standard cabinet” when “British Standard gun cabinet”, the phrase and capitalisation used on the old forms, is clearer and less ambiguous and presumably what was intended. The single ethnic group “White and Black AfricanWhite and Asian” is clearly meant to be two separate groups. (And is it really necessary to request information as to ethnic origin quite so specifically anyway – twenty options in all – if this is really just intended for “Equality” monitoring?)

Another discrepancy and possible source of confusion concerns the disclosure of convictions. The notes state that “details of parking fines and fixed penalty notices do not need to be declared.” This would apply to a speeding offence dealt with by way of a fixed penalty. What about, however, an offence of drunk and disorderly? I was recently asked to advise a man of otherwise impeccable character whose shotgun certificate was revoked after he accepted a fixed penalty for just such an offence. It is hard to see why such a disposal should be excluded from disclosure when bind-overs, conditional discharges and even absolute discharges are not.

There may have been no significant changes to the information required on application, but it would be wrong to conclude the approach to the grant of certificates remains the same.

Under the Firearms Act 1968, it is a requirement for section 1 firearms and shotguns alike that before a certificate is granted the chief officer of police must be satisfied that the applicant can be permitted to possess one “without danger to the public safety or the peace”. For section 1 firearms additional tests apply, namely that “the applicant is fit to be entrusted” with one and that he has a “good reason” for having it.

The Home Office guidance is being updated in chapters and placed on-line, with a view to being further updated as required. Updated Chapter 12, “Assessing Suitability”, was published in August 2013, and anyone who shoots would be wise to pay it some attention.

Previously, Chapter 12 dealt solely with section 1 firearms and the “fitness” test. The revised guidance is extended to include suitability to possess a shotgun. Factors the police will consider include: previous convictions or cautions; arrests, police call-outs or bindings over in relation to any activity which involves the use of a firearm, or offences involving violence, dishonesty or a disregard for public safety; intemperate habits, such as evidence of alcohol or drug abuse, aggressive or anti-social behaviour etc.

The big change, however, is the emphasis that is now placed on domestic incidents. On New Year’s Day 2012, Michael Atherton killed his partner, her sister and her daughter, before turning a gun on himself. It emerged that he had a long history of domestic violence and threats to self-harm, but nevertheless he had been granted certificates by Durham Police covering six weapons including three shotguns. Tragic as this case was, the fault lay not with the law or the existing guidance, but with systemic failures within Durham Police.

The guidance on domestic violence, which previously merited a single line in old Chapter 12, now extends to three pages. It includes the following

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.

Background checks will always be carried out on applicants to assess their fitness to possess a firearm. These checks should encompass local information as well as checks on national databases.

Where there is information indicating domestic violence and abuse, wider interviews or enquiries should be considered with a range of family, friends or associates of the applicant.

Interviews with partners who may be victims of domestic violence may be judged essential to making a complete assessment of an application.

Police domestic violence/public protection units should be consulted and multi-agent liaison may be necessary.

Chief officers should be aware that they can take hearsay evidence into account and not have to rely directly on spouses/partners.

Conduct which has not resulted in a conviction can be considered.

A review on the continued suitability of a firearm or shotgun certificate holder should take place following an incident of domestic violence or abuse.

Any household which is in domestic turmoil is unlikely to be a suitable place for firearms to be stored.

No one would argue, these days, that a man who beats up his wife should be permitted to possess guns. The fact that detailed guidance has been included is clearly a good thing and has been welcomed by the shooting organisations. What might be a cause for concern, however, is the wide ambit of the non-statutory definition of “domestic violence and abuse” which is adopted:

“Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, the following types of abuse: psychological, physical, sexual, financial, emotional.

The guidance, of course, states that decisions on applications and revocations should be made on an assessment of all the relevant information and on the individual merits of the case. It also states that the police must make a judgement about the reliability and credibility of hearsay evidence or evidence short of a conviction that has not been tested in court under cross-examination before relying on it. How the police will interpret all this remains to be seen, but there still remains plenty of scope for variations in approach between different forces.

The revised guidance will inevitably give rise to considerably more work on the part of the police in processing applications, such that it will be hard to resist an increase in fees. It is also likely, I fear, to result in a substantial number of refusals and revocations on the basis of marital breakdown and relationship difficulties falling short of actual or threatened violence, where in reality there may be very little risk to public safety or the peace.

Tim Ryan specialises in criminal defence and firearms licensing litigation.

For more information contact Tim Ryan on 01732 770660 or email [email protected]

“First published in Gun Trade News, October 2013”.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

Send us a message or call 01732 770660

    • This website is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply