Keeping the law in your sights

By Tim Ryan Fri 7 Dec, 2012

“If I break wind in Wittenberg they smell it in Rome,” complained Martin Luther. He had cause to worry. He was challenging the authority of the all-powerful Catholic Church at the time of the Spanish Inquisition. For those who enjoy shooting, a certain amount of paranoia may also seem justified. The law has become increasingly strict in its approach to the licensing of firearms, and we live in an age of unprecedented regulation and hostility towards country sports in general and guns in particular.

Inadvertent mistakes and errors of judgment can prove disastrous, as a couple of recent cases have illustrated: the first, a misunderstanding over a lent shotgun; the second, an oversight by an experienced gun, followed by a drink on the way home.

Borrowing / lending

The licensing of guns is a complicated business. The law, as set out in the Firearms Act 1968 and subsequent legislation, distinguishes between shotguns and other firearms. A “shotgun”, for which a shotgun certificate is required, is restricted to those that either have no magazine or a non-detachable magazine incapable of holding more than two cartridges. All other guns (except most air weapons) are section 1 firearms which require a firearm certificate. This includes those semi-automatic shotguns, popular in recent years for use in pest control, that have (or can take) a magazine of three cartridges or more.

The rules that govern lending between certificate holders vary according to whether the gun in question is a section 1 firearm or a “shotgun”. Any transfer of a section 1 firearm (or ammunition) must be to a registered firearms dealer or directly to a person authorised by a firearm certificate (or visitor’s permit) to take possession, and both parties must notify the police within seven days. A “shotgun” may be lent by one certificate holder to another for a period up to 72 hours without notice, but, if longer, both parties must notify the police. A notice must identify the firearm in question, state the nature of the transaction, give the name and address of the other party and should be sent by registered post, recorded delivery or by email. A list of email addresses for these purposes is available on the BASC website.

A person who is not a certificate holder may lawfully use a .22 rimfire rifle at a rifle range or shooting gallery or use a “shotgun” at a clay pigeon shoot that has been approved by the police. He may also borrow a “shotgun” from the occupier of private premises and use it on those premises in the occupier’s presence. If he is 17 or over he may borrow a rifle from the occupier of private premises and use it on those premises in the presence of either the occupier or the occupier’s servant (the “estate rifle” exemption). Such use must comply with the conditions of the certificate.

It may seem that the estate rifle exemption, permitting use in the presence of the occupier or his servant, is rather more generous than the lent “shotgun” provision, which is limited to the occupier only. Since the Home Office guidance to police suggests applying a wide interpretation of “occupier” (“any person having any right of hunting, shooting, fishing or taking game or fish”) I doubt there is any real difference in practice. The more significant point is that, for rifles, it is the person present, whether the occupier or his servant, who must be the certificate holder. “Presence” is generally taken to mean within sight and earshot.

A young keeper allowed two friends to use his 12 bore shotgun in his presence on private land, where he had permission. The shotgun had been modified to take a magazine of more than two cartridges, and therefore was re-classified as a section 1 firearm and placed on his firearm certificate. It was no longer a “shotgun” as defined under the Firearms Act, nor was it a rifle. As a section 1 firearm, which was not a rifle, it could not be borrowed or lent under any circumstances (other than by way of a properly notified transfer).

The matter came to the attention of the police who immediately revoked the keeper’s certificates and charged him with breaching the conditions of his firearm certificate. Fortunately, the magistrates accepted that it was an innocent mistake and fined him for the offence, and the police agreed to re-instate his certificates, but only after six months had elapsed, several court hearings and legal costs of several thousand pounds.

Alcohol and guns

Tucked away at the end of BASC’s Health and Safety Guidance for shoots is “a word about alcohol”. Clearly, no one who is obviously drunk should be allowed anywhere near a gun, and few would disagree with the observation that “the safest option is for all guns not to take alcohol during the shoot”. It would, of course, be impossible to eliminate all risks, and the traditional nip of sloe gin, no doubt “risk assessed,” is not yet on the list of endangered species.

Health and safety considerations aside, what, then, is the legal position? First, there is no prescribed alcohol limit as there is for driving. It is something of a moveable feast and the basic offence remains largely unchanged since Victorian times. Under section 12 of the Licensing Act 1872 a person found “drunk” in possession of any loaded firearm commits an offence and is liable to a fine (currently up to £200) or one month’s imprisonment.

All firearms, including airguns, are covered, and an offence can be committed anywhere, on private as well as public premises. In theory, this could be inside your own home or someone else’s. It only applies to loaded firearms however.

“Drunk” is a question to be decided in each case on the facts, and the test is whether the person concerned had, through consuming intoxicating liquor, lost the power of self-control. For most people this would presumably take somewhat more alcohol than the drink-drive limit (35 microgrammes per 100 millilitres of breath).

“Possession” has given rise to considerable legal debate over the years. What is clear is that a person can be in possession of an object, not only when carrying it, but also when it is in some place (e.g. a building or vehicle) over which that person has control.

There may be other, more serious, offences where guns and alcohol come together, as a member of a pheasant shooting syndicate discovered. During an enjoyable but uneventful shoot, he had his usual glass of wine at lunch, and at the end of the day he called into a nearby pub, where he had a couple more drinks before heading home. It was getting dark and his route took him down a narrow country lane, where he had the misfortune to collide with a dangerously parked car.

Police arrived at the scene, asked him what he had been doing and he told them. They asked to see his gun, which was out of sight and secure in the boot of his car. On inspection, it was found to contain a live cartridge. He was of impeccable character, cooperated fully with the police throughout, apologised profusely for his oversight, which numerous witnesses confirmed was completely uncharacteristic. He was breathalysed and found to be slightly over the legal limit, and as a result he was charged with two offences, drink driving and possession of a loaded shotgun in a public place.

Under Section 19 of the Firearms Act 1968 it is an offence for a person, without lawful authority or reasonable excuse, to have with him in a public place a loaded shotgun, an air weapon or any other firearm (whether loaded or not) together with ammunition for use in that firearm. The maximum sentence is 7 years’ imprisonment and Sentencing Guidelines indicate that in all but exceptional cases custody will follow.

The drink driving offence led to an obligatory disqualification. For the shotgun offence 3 months’ imprisonment was imposed, suspended for 12 months, with an order to perform 150 hours of community work. The magistrate stated his disapproval that alcohol had been consumed during the shoot.

Points to note are that a valid certificate provides no defence for having a loaded shotgun or a section 1 firearm together with ammunition in a public place. Having a certificate merely saves the holder from committing an offence of unauthorised possession. Thereafter, whether possession is lawful or not depends on the circumstances, which will include compliance with the law and conditions. To avoid an offence under section 19, any firearm must be unloaded before setting off for home and bullets must be kept separately from a rifle whilst in transit (ideally in a locked container bolted to the vehicle).

It is vital that your guns and section 1 ammunition are properly accounted for, and do not even consider driving yourself if you have had one too many. A drink-driving conviction is a serious matter, which can quite possibly lead to revocation. Where there are firearms offences, whatever the circumstances, alcohol consumption is likely to be regarded as an aggravating factor, and stopping off at the pub on the way home is not a great idea.

Owing to a number of well publicised tragedies, many otherwise reasonable people see guns only as weapons and would therefore put a stop to the shooting party. If the killjoys and health-and-safety brigade are not to get their way, those involved in shooting must be seen to act responsibly at all times and avoid even the slightest “whiff” of irregularity.

For more information, please contact:

Tim Ryan on 01732 375395 or t.ryan@warners.law

Article first published in The Field, November 2012

Back to news