QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE JEREMY BAKER
| R (on the application of Antony Crispin Mason)
|- and -
|The Crown Court at Winchester
|Chief Constable of Hampshire
The Defendant and the Interested Party were not represented
Hearing date: 9 May 2018
Crown Copyright ©
Mr Justice Jeremy Baker:
"I have reviewed the circumstances of a domestic related incident where Police were called to your matrimonial home on 7 December 2016, and I also take note of the letter of warning sent to you following the investigation of an allegation of domestic violence in 2007.
After careful consideration of all of the information available to me, including your alleged violent behaviour, I am satisfied that you can no longer be permitted to possess the firearms, shotguns and ammunition to which your firearm and shotgun certificates relate, without danger to public safety and the peace and I am therefore revoking both of these certificates."
The hearing of the Appeal
"Let me tell you how I intend to run this hearing this morning. We are not here to conduct a case concerning assault in a domestic context; we are not here to determine as a separate matter the dispute with Mrs Venables. We are here to take a general view of the history of the matter and to find whether or not the appeal should be allowed and the order of revocation should be set aside. So, I want to take matters as shortly as I can, bearing in mind what I see as our role today, otherwise we would be here two or three days, and of course the Chief Constable in not calling the former wife, is not calling Mrs Venables. So we have got to get the flavour from the papers and from such evidence as we are going to hear today. I suggest the respondent goes first, a statement is put to the witness and then he is open to cross-examination, keeping it as short as you can. Any objections to that?"
"compendium question summing up what his case is."
"Q: ……Had you ever struck Aundrea Mason?
A: Definitely not.
Q: All right. Or deliberately barged into any other person?
A: Definitely not."
"Now, Mr Onslow, we had read all the other written material. We are not going to be assisted by the makers of the statements being cross-examined, in particular about Mrs Venables. So there is no need to call them. Their evidence is going to be considered by us, it is evidence in the case, and I indicated earlier that we have read the character references. I think we can conclude by asking Mr Moores if he wants to make any submissions. We fully understand your case."
"So that remains the evidence concerning alleged domestic violence directed towards his former wife. I say at once that the appellant denies these allegations……"
However, HH Douglas Field went on to describe the evidence relating to the incident on 2 October 2007 as "compelling", as was the evidence of the previous alleged violence related by Mrs Mason to PC Wardell on 7 December 2016. In this regard he noted that Mrs Mason's witness statement dated 2 October 2007 mentioned previous incidents of violence by the claimant, and her most recent account to PC Wardell included mention of a previous act of violence relating to the use of one of the claimant's boots.
"In our judgment, rather than receiving a warning letter in 2007 his certificates should have been revoked then. Since that incident, we have the incident that happened on 7 December, in itself a matter we do not take into account, but the allegations, the extra allegations, albeit historical, we do take into account. At present, the former wife resides in the matrimonial home, the appellant rents separate premises in Kings Somborne. He has contact with his children, but clearly there are still difficulties over contact. Everybody knows that in this day and age these sorts of allegations and background are taken extremely seriously when deciding whether someone is a fit and proper person to have a shotgun licence or a firearms certificate.
Notwithstanding the references, notwithstanding the evidence that he gave, my colleagues and I have concluded that he is a danger to the public safety and the peace, and it is for that reason that this appeal is dismissed."
Grounds of judicial review
"i. The judge, having expressed at the outset of the hearing the aim of taking a general view of whether revocation should be set aside, curtailed and encouraged the curtailment of the evidence in such a way that evidence which would have been relevant (as it transpired) to the decision-making process was not given, leaving Mr Mason to complain afterwards that he had not been able to give his account of matters upon which the court determined the appeal;
ii. The judge did not invite any submissions on behalf of the appellant at the close of the evidence saying simply that 'We fully understand your case'. He did invite, and heard, submissions on behalf of the respondent. It had clearly been stated in the written outline submissions for the appellant, submitted to the court in advance of the hearing, that it was intended to develop the outline submissions made, orally, and to add others.
iii. On returning to court to give reasons and the decision, and before doing so, the judge did not invite any submissions on behalf of the appellant about matters which, as it transpired, were crucial to the decision against him."
The statutory framework
"(1) 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 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 the public safety or to the peace."
In relation to shotgun certificates section 28 provides that,
"(1) Subject to subsection (1A) below, a shot gun certificate shall be granted or, as the case may be, renewed by the chief officer of police if he is satisfied that the applicant can be permitted to possess a shot gun without danger to the public safety or to the peace.
(1A) No such certificate shall be granted or renewed if the chief officer of police—
(a) has reason to believe that the applicant is prohibited by this Act from possessing a shot gun; or
(b) satisfied that the applicant does not have a good reason for possessing, purchasing or acquiring one."
"(2) The certificate may be revoked if the chief officer of police has reason to believe –
(a) that the holder is of intemperate habits or unsound mind or is otherwise unfitted to be entrusted with a firearm; or
(b) that the holder can no longer be permitted to have the firearm or ammunition to which the certificate relates in his possession without danger to the public safety or to the peace."
In relation to shotgun certificates section 30C provides that,
"(1) A shot gun certificate may be revoked by the chief officer of police for the area in which the holder resides if he is satisfied that the holder is prohibited by this Act from possessing a shot gun or cannot be permitted to possess a shot gun without danger to the public safety or to the peace."
"(1) An appeal against a decision of a chief officer of police under section 28A … 30A … 30C … of this Act lies –
(a) in England and Wales, to the Crown Court …
(2) An appeal shall be determined on the merits (and not by way of review).
(3) The court … hearing an appeal may consider any evidence or other matter, whether or not it was available when the decision of the chief officer was taken."
Furthermore, Schedule 5 to the Firearms Act 1968 makes provision for the conduct of the appeal, including the giving of notice.
"For my part I attach importance to the wording of section 30 (2) dealing with this particular branch set out there, namely, " cannot be permitted to possess a shot gun without danger ... to the peace." It seems to me that those words make it quite plain that the possession of the shot gun and matters affecting it are not only material but essential for consideration when the matter of revocation comes up to be decided. It must be danger to the peace arising out of the possession, or use, or misuse of the shot gun which the chief officer of police must consider. It is the nature of the danger to the peace which is contemplated.
Secondly I would say, although it is repetition, that it would be wrong to limit section 30 (2), as the judge limited it, to the possibility of the misuse of the shot gun in circumstances of violence. Thirdly, I believe, for my part, that the best approach to the understanding of this subsection is to regard it as forming part of the equipment given' to police officers for the preservation of good order in public. I refer again to the words from the Irish case—just as it was justices there, so it is police officers here—and what the judge referred to was
'a branch of preventive justice, in the exercise of which magistrates are invested with large judicial discretionary powers over the maintenance of order and the preservation of the public peace.'
Translating that and altering those words as appropriate to a chief officer of police when considering revocation of a certificate, I think that they may afford him valuable assistance.
Therefore he should consider, when he is deciding whether a certificate should be revoked on the ground of danger to the public peace, whether there is a danger that the gun may be misused in such a way that good order is disturbed or that there is a risk of that happening. But I would go much further in endeavouring to assist. To my mind poaching such as was taking place on the occasion when these men were caught is in every sense of the word a disturbance of the public peace. It might indeed be said to be a possible source of violence, but I would put it on a much broader ground, that the carrying of a gun on a poaching expedition does involve a breach of good order and a danger to the peace in that sense of the word, and while each case must depend on its own principles, I would suggest that chief officers of police should have in mind that this preventive remedy entrusted to them is intended to be used partly to prevent danger to the public safety and partly to prevent danger to the public peace which may perhaps be expressed as involving disturbance to good order.
All of us know to our cost to what extent good order and the principles of good order are today subject to disturbance, and I would for my part be prepared to entrust a very wide discretion, so long as the discretion is exercised in connection with the use or possession of a gun."
"The discretion to be exercised or the judgment to be made is, I think, quite plainly laid down in section 30(2) of the Act, and it is: is the chief officer satisfied or is on an appeal, the Crown Court satisfied that the holder of the licence cannot be permitted to possess a shotgun without danger to the peace? That is a question to be considered and decided with reference to all the facts. That means with reference to facts occurring before the licence is first granted, as well as after it. There is no artificial or chronological restriction to be read into the subsection as to the facts which are properly to be considered. But, and in this I think the learned judge was right, the danger to the peace which must be considered must be a danger to the peace involving the use of a shotgun.
If therefore an applicant or holder of a licence is given to the commission of offences which, however serious, do not involve the slightest risk or likelihood of use of a shotgun, then that, in my judgment, as in that of the learned judge, is not a ground for refusing or revoking a licence.
Our attention has been drawn to a Scottish decision which was not before the learned judge. It is the case of Luke v. Little [19801 S.L.T. 138. In that case the appellant had a string of convictions for drunken driving, following the last of which the chief constable revoked his shotgun licence. There was an appeal to the Sheriff who dismissed it, and in the course of dismissing it he said;
"In 'preventive justice' (see Ackers v. Taylor [19741 W.L.R. 405) surely the correct course is not to wait until the applicant actually does the wrong thing but to gauge the likelihood that he may do the wrong thing and to act accordingly. This estimation will, in all probability, not be linked to his behaviour with a gun but to his behaviour elsewhere, and the respondent's equation of irresponsibility with a car with irresponsibility with a gun seems quite sound. It also follows from this approach that a licence-holder's behaviour should be monitored to see if the original estimate of his likely behaviour should be modified in the light of the latest information available."
If I understand the Sheriff correctly, I find nothing with which to disagree in those observations. It seems to me plain that if there were evidence of a man who was given to gross bouts of drunkenness, there might very well be room for the conclusion that he was not a safe man to be entrusted with a shotgun for fear that, in the course of one of his bouts of drunkenness, the shotgun might be misused for an unlawful purpose. Quite plainly a drunken man with a gun is capable of being very dangerous.
What however the case does not, in my view, support at all is the suggestion that any form of criminal behaviour, irrespective of whether it is likely to lead to the commission of any crime involving the use of a shotgun, is sufficient ground for revocation of a licence."
"What is necessary is that the conduct of the holder of the shotgun certificate should be such that the chief constable has grounds for believing that when the holder is using or in possession of his shotgun he may behave in such a way as to present a danger to the public or a danger to the peace. It is quite plain, in my judgment, that that conduct can be judged in relation to irresponsible and uncontrolled behaviour in a number of different ways.
In this particular case there were two convictions for drink driving within 5 years and in my judgment the chief constable, who plainly has made some investigation into the circumstances of the offence because his letter indicates that, was entitled to take the view that the applicant was a person who was irresponsible, lacking in self-control in relation to a motor car which was a lethal weapon in the hands of a frustrated, intemperate and irresponsible person just in the same way as a shotgun would be. The essential feature in the proper handling of a shotgun is that the owner or possessor of it exercises proper self-control and proper discipline and restraint. In my judgment, there was ample material here upon which the chief constable was entitled to take that view.
The extent to which a chief constable is required to make an investigation as to the facts of any particular case are, in my judgment, not for this court to lay down. It is a matter for the chief constable to exercise his discretion upon the material which is before him, but plainly it may be that the mere fact of a conviction, or two convictions, may not of itself suffice."
"36. It is in the overwhelming public interest that the tightest control is exercised over those who possess firearms. The danger to the public is too well-known to require any further observations by this court. It is therefore of the greatest importance that when a Chief Officer of Police decides that a Firearm Certificate should be revoked on the basis that the person is not fit to hold that licence, or for any other reason, any appeal requires the most careful and detailed consideration. Such appeals must, in the view of this court, be heard by full-time circuit judges. It is simply not fair to ask a part-time judge, without the experience of a full-time judge, to decide such issues.
37. It should therefore follow that it is only with the consent of the Presiding Judges of the Circuit that a Recorder should be permitted to hear any such appeal, given the overwhelming importance and strictness of control over those who have the privilege of holding firearms."
"It seems to me that the Crown Court is in the same position as the court of quarter sessions. The Crown Court is to try cases according to the same rules as the court of quarter sessions used to do. The court of quarter sessions, when trying criminal cases, applied the rules of evidence applicable to criminal cases. But from time immemorial the court of quarter sessions exercised administrative jurisdiction. When so doing, the justices never held themselves bound by the strict rules of evidence. They acted on any material that appeared to be useful in coming to a decision, including their own knowledge. No doubt they admitted hearsay, though there is nothing to be found in the books about it. To bring the procedure up to modern requirements, I think they should act on the same lines as any administrative body which is charged with an inquiry. They may receive any material which is logically probative even though it is not evidence in a court of law. Hearsay can be permitted where it can fairly be regarded as reliable. No doubt they must act fairly. They should give the party concerned an opportunity of correcting or contradicting what is put against him. But it does not mean that he has to be given a chance to cross-examine. It is enough if they hear what he has to say. This was all made clear by the decision of this court in T. A. Miller Ltd. v. Minister of Housing and Local Government  1 W.L.R. 992. In an appeal under the Firearms Act 1968 it seems to me essential that the Crown Court should have before it all the material which was before the chief officer of police. After all, the chief officer is the person to give the decision in the first instance. Under section 27 it is he who is to be " satisfied." Under section 34 he may refuse if he is " satisfied " of what is said there. It is plain that he can take into account any information that he thinks fit. He need not hold any hearing. He can decide on paper. If he refuses and the applicant appeals to the Crown Court, then the Crown Court must see whether or not the chief officer was right in refusing. For that purpose the Crown Court ought to know the material that was before him and what were the reasons which operated on his mind. It can also consider any other material which may be placed before it. In the end it must come to its own decision as to whether a firearm certificate should be granted or refused, or whether a person should be registered as a firearms dealer. It will then dismiss or allow the appeal accordingly."
Home Office Guidance
"v) Domestic violence and abuse
12.33 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 (see below for the definition of domestic violence and abuse). An incident of domestic violence taking place should trigger a need for police to review whether the certificate holder can be permitted to possess the firearm or shotgun without causing a danger to public safety or to the peace.
12.34 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.
12.35 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 prior to issue or renewal of a firearm/shotgun certificate. Those interviewed need not be confined to those persons put forward by the applicant. The police response should be proportionate to the risk involved and care must be taken to consider every case on its merits.
12.36 Interviews with partners who may be victims of domestic violence may be judged essential to making a complete assessment of an application. Such interviews need to be conducted with sensitivity, and officers must take into account that a victim of domestic violence may be unwilling to speak openly with the police for fear of further violence or reprisals. Information provided during interview must be treated as confidential. Officers must have received adequate training so that they are aware of the indicators of domestic abuse, and how to support victims and keep them safe. They should be aware that there may be a need to take active steps to protect an applicant's partner from reprisals. This is particularly important in the event that the partner is interviewed in connection with the application and provides information which leads to a refusal or revocation since the applicant might blame their partner and resort to violence.
12.37 An applicant's partner is not required to give approval for the issue of the firearm or shotgun certificate and this should be made clear to them. The responsibility lies with the police to make the decision based on all the evidence available. Similarly, the police will assess evidence provided by other family members, friends or associates of the applicant where this is considered to be necessary.
12.38 Police domestic violence/public protection units should be consulted and multi-agency liaison may be necessary to properly assess whether the applicant can hold a firearm or shotgun without danger to public safety or the peace.
12.39 Chief officers need not rely only on convictions when considering the suitability of applicants to possess firearms without danger to the safety of the public or the peace. In particular chief officers should be aware that they can take hearsay evidence into account and not have to rely directly on spouses/partners when considering domestic related incidents. Hearsay evidence could include the evidence of police officers attending scenes of domestic incidents. Chief officers must also consider whether the applicant or certificate holder has been the subject of a Domestic Violence Protection Notice (DVPN) or a Domestic Violence Protection Order (DVPO) issued under the Crime and Security Act 2010 and whether the applicant or certificate holder has breached the terms of that notice/order.
12.40 Conduct which has not resulted in a conviction can be considered. For example, a bind over may be relevant, particularly if in relation to a partner or a former partner. Evidence falling short of a conviction (e.g. police intelligence, which has not been tested in the criminal court and proved beyond reasonable doubt) should be treated with caution and an assessment made by chief officers of police as to what weight should be attached to it. In each case the police must ensure a fair process by analysing how recent the incident was and whether it should be viewed as an isolated incident or part of an ongoing pattern. They should conduct an assessment of future risk based on all of the evidence.
12.41 Information from GPs, especially an indication of alcohol or drug abuse, or mental health issues may indicate that an applicant is not fit to possess a firearm. Consideration may be given to requesting the medical records of spouses, partners or family members (with their consent) if there is concern over previous domestic violence or abuse.
12.42 It should be noted, however, that in the event of challenge a court is likely to attribute less weight to hearsay evidence than to direct evidence, and less weight to evidence falling short of a conviction (which has not been tested under cross-examination) than to actual convictions. The chief officer must therefore make a judgement about the reliability and credibility of hearsay evidence before relying upon it to refuse or revoke a certificate."
i. Service by the respondent upon the appellant and the Crown Court of a bundle containing the evidence and material which is relied upon to support the original decision within 28 days of the service of the appellant's notice of appeal;
ii. Service by the appellant upon the respondent and the Crown Court of a bundle containing the evidence and material which is relied upon to support the appeal within 21 days of the service of the respondent's bundle;
iii. The parties to serve upon the Crown Court a joint time estimate to be agreed between the parties, or in the absence of agreement, individual time estimates together with an explanation for the same, within 7 days of service of the appellant's bundle;
iv. Skeleton arguments together with copies of any authorities relied upon to be exchanged and served upon the Crown Court at least 7 days before the hearing of the appeal;
v. The Crown Court to provide copies of the parties' bundles, skeleton arguments and authorities to the members of the court at least 24 hours prior to the hearing of the appeal.
vi. At the hearing of the appeal, unless for good reason the court directs otherwise, the evidence for the respondent is to be followed by the evidence for the appellant, and thereafter submissions made in the same order.
Lord Justice Irwin: