England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		19th March 1997

LORD JUSTICE BROOKE: This is an appeal by way of case stated by the Chief Constable of Norfolk against the decision of the Norwich Crown Court on 18th October 1996, in which it allowed an appeal by Robert Stephen Edwards against a decision by the Chief Constable on 16th July to revoke his firearms and shotgun certificates. The Chief Constable, who acted on this occasion by his Assistant Chief Constable, Mr William McIntyre, used the powers accorded to him by section 30 of the Powers of the Firearms Act 1968 to revoke the certificate. Appeal led to the Crown Court by Sections 33 and 44 and Part 2 of Schedule 5 of the Firearms Act 1968.

The facts as found by the Crown Court are along the following lines. The respondent is a man of 44, having been born in July 1972. His previous criminal convictions included a conviction for an offence of assault occasioning actual bodily harm in 1974, for which he was fined by magistrates, and a conviction for an offence of unlawful wounding in January 1976, for which he received a sentence of 6 months' imprisonment at Bristol Crown Court, suspended for 2 years. On neither occasion was a weapon involved.

The respondent has worked in the offshore industry since about 1978, principally as a diver. In 1996 he held a responsible and well-paid job as a diving electrical technician. This job involved periods of living offshore, often aboard a vessel lying off great Yarmouth. When onshore he lived in a house he owned on the outskirts of Great Yarmouth. He had been living there with Miss Button, a divorced woman with three children from her previous marriage, for about four weeks before the incident on 7th June 1996, which I will record in due course. Of these children the eldest, a girl of 13, spent more of her time living with her natural father who lived in the same area. In November 1984 the respondent was granted a firearm and shotgun certificate by the Chief Constable of Devon and Cornwall. When he moved to Norfolk the present appellant renewed these certificates in 1993. They were most recently renewed on 19th March 1996 for a period of five years, expiring in March 2001. Details of the certificates are set out in the case stated.

In 1985 the respondent had been convicted of an offence of driving a motor vehicle having consumed excess alcohol, for which he was fined and disqualified from driving for 12 months. This conviction did not affect the renewal of his firearms and shotgun certificates when next they came up for renewal. The incident which gave rise to the revocation of the certificates was an incident of violence at the respondent's house on the night of 7th June 1996. But before I describe that incident, as found by the Crown Court, I will first mention the Crown Court's findings as to the appellant's policy in relation to the shotgun and firearms certificates.

The Chief Constable of Norfolk, through an authority he delegates to his Assistant Chief Constable and his Principle Administration Officer for Firearms, has the responsibility in the County of Norfolk for about 24,000 shotgun certificates and 4,000 firearms certificates, which involve in aggregate about 70,000 weapons. He tries to maintain some consistency of policy with particular reference to convictions of offences of violence, and/or offences involving the misuse of alcohol, for example, drink/driving. In appropriate cases he is prepared to accept that after a lapse of many years from youthful offending, an applicant may have demonstrated that he has matured and become a responsible person, who could then be safely entrusted with a firearm. In pursuance of that policy he had been prepared to follow the decision of the Chief Constable of Devon and Cornwall in granting both certificates, notwithstanding the convictions for violence in the 1970s and albeit with more hesitation the conviction for drivings with excess alcohol in 1985.

Section 30 of the Firearms Act 1968 provides, so far as is material:

"(1) A firearm certificate may be revoked by the chief officer of police for the area in which the holder resides if -

(a) the chief officer is satisfied that the holder is prohibited by this Act from possessing a firearm to which section 1 of this Act applies or is of intemperate habits or unsound mind, or is otherwise unfit to be entrusted with such a firearm...

(2) A shotgun certificate may be revoked by the chief officer of police if he is satisfied that the holder... cannot be permitted to possess a shotgun without danger to the public safety or to the peace."

In the case stated the Crown Court set out at considerable length the facts surrounding the incident on 7th June 1996 which persuaded the Chief Constable to invoke these powers and to revoke the certificates. In short, Miss Button complained to the police on the morning after the incident of the history of two previous incidents of violence, culminating in a very violent assault on the night in question. Her account was to some extent corroborated by her daughter, Sarah, who was in the house at that time. Miss Button made a further statement to the police five days later describing the physical effects of the assault, including a possible hairline fracture to the skull. On 18th June, however, she formally withdrew her complaint and the Crown Prosecution Service acceded to her wish that the trial of common assault contrary to section 39 of the Criminal Justice Act should not be proceeded with.

The Crown Court rejected the appellant's version of the incident, and were convinced that Miss Button's original statement was substantially true. She had told the police she had begun a relationship with the respondent about 12 months previously and she had been assaulted by him once about three months previously and once about six weeks previously. Notwithstanding these assaults she had come to live with him, bringing her children to live with her. In the early evening of 7th June her two-year old child had been fractious and crying and this appeared to irritate the respondent. They then went out to a nearby hotel for drinks. When they came home the three children went upstairs to bed, but the youngest child started screaming so that Miss Button brought her downstairs to comfort her.

The respondent's annoyance at the child's behaviour and Miss Button's refusal to hit the child led to him striking Miss Button on the side of her face. She screamed for help, and she threw the child to Sarah when she came down to help because the respondent had hold of her hair and started to bang her face repeatedly against the wall. He stopped when he heard Sarah had rung up the police, although she thought that he punched her in the face again when she was phoning her ex-husband. When police officers saw the respondent at 2 am that morning aboard his ship they could smell alcohol on his breath, but would not have described him as drunk. Miss Button, who was covered in blood and crying, suffered from severe headaches and deafness in her right ear and loss of feeling on the right side of her head, her right arm and her right leg as a consequence of the assault.

On behalf of the Chief Constable it was contended at the Crown Court that, on the facts set out in Miss Button's statement, he was entitled to be satisfied that the respondent's behaviour, as described, went to his fitness to hold a certificate under the 1968 Act. With the background of his previous conviction he was entitled to be satisfied that this behaviour demonstrated, on the respondent's part, irresponsibility, a tendency to violence and an inability to control himself; that he was unfit to be entrusted with a firearm; and that he could not be permitted to possess a firearm without danger to the public safety or the police. Apart from urging the Crown Court not to accept the version of the incident on 7th June described in Miss Button's original statement, and to find that due to excessive consumption of alcohol she had been the aggressor and the author of her own injuries, the respondent, who was represented by counsel, made two substantive points to the Crown Court. The first was that he had weapons available in the house should he have wished to use them, but he neither used them nor wished to use them. The second was that he held a very responsible job, and his shooting partner, who is a gentleman of impeccable character, had confirmed to the Crown Court that he went rough shooting with him, sometimes as often as once a week, for rabbits and the like and he had never observed anything in the respondent's conduct on these expeditions which gave him the smallest cause for concern.

After reciting the facts and the submissions, and mentioning the four very well known cases to which they were referred, the Crown Court gave three reasons for allowing the respondent's appeal. First, although they accepted that the version of the events described by Miss Button in her original statement was substantially true, there was, nevertheless, no element of irresponsibility in relation to firearms and the respondent's conduct with regard to Miss Button did not raise the slightest risk of likelihood of the wrong use of firearms, whether in relation to members of the family or to persons outside the family.

Secondly, they found that the respondent was, generally speaking, a highly responsible citizen, and they referred to the impeccable character of his shooting partner who had said that he had never observed anything in the respondent's conduct when out shooting with him which gave him the smallest cause for concern.

Thirdly, the respondent did not have a drink problem.

The Crown Court attached to the case a transcript of the ruling given by Judge Langan of the ending of the appeal which expands on these three reasons at somewhat greater length.

The two questions for the opinion of this court are:

1. Whether the Crown Court adopted the correct approach in making the findings of fact summarised in the case and set out at greater length in the transcript, rather than limiting their consideration to deciding whether the Chief Officer of Police could not have properly have been satisfied as to the matters specified in section 30 of the Act.

2. Whether on the findings made by the Crown Court they were entitled to find that the respondent was a fit person to be entrusted with a firearm and could be permitted to possess a shotgun without danger to the public safety or to the peace.

A question has arisen in this appeal about the nature of the jurisdiction exercised by the Crown Court on an appeal from a Chief Constable's decision to revoke a firearm or shotgun certificate under the 1968 Act. In my judgment this issue was authoritatively

decided by the Court of Appeal, upholding the decision of this court in Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624. In giving the leading judgment in this court, with which the then Lord Chief Justice Lord Widgery agreed, Cusack J said at page 629 that on an appeal under the Firearms Act 1968 the Crown Court clearly had to consider the matter from the beginning afresh. He added:

"The Crown Court has to apply its own discretion in exactly the same way as, in the first instance, the chief constable would have to apply his discretion."

When the case reached the court of appeal Lord Denning MR described the procedure the Crown Court had to follow, and concluded:

"In the end it must come to its own decision as to whether a firearm certificate should be granted or refused..."

Mr Scrivener, for the Chief Constable, has drawn this court's attention to a dictum of Lord Goddard, sitting in this court, of Stepney Borough Council v. Joffe [1949] 1KB 599, in which this court was concerned with an appeal by a street trader to a Metropolitan Magistrate under section 25(1) of the London County Council (General Powers) Act 1947. At page 602 Lord Goddard said this:

"It seems to me that s.25 sub-s 1, gives an unrestricted right of appeal, and if there is an unrestricted right of appeal, it is for the court of appeal to substitute its opinion for the opinion of the borough council. That does not mean to say that the court of appeal, in this case the metropolitan magistrate, ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter, and it ought not lightly, of course, to reverse their opinion. It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right. The words of s.25, sub-s 1, are very wide. The magistrate is given power to 'confirm, reverse or vary decision of the borough council,' and that being so it seems to me that once the licensee appeals to him, he is bound to form an opinion upon the matter and 'confirm, reverse or vary the decision of the borough council' according to the judgment which he forms."

Mr Scrivener attached weight to what Lord Goddard said about the need for the Metropolitan Magistrate to pay attention to the opinion that the local authority had come to on the matter. In my judgment, what Lord Goddard was saying was no different from what is said in the context of appeals to a judge in chambers from a discretionary decision by a Queen's Bench Master, the principles of which are very clearly set out by Lord Atkin in his speech in Evans v Bartlam [1937] AC 473, p 478 whre Lord Atkin said this:

"I only stay to mention a contention of the respondent that the Master having exercised his discretion the judge in Chambers should not reverse it unless it was made evident that the Master has exercised his discretion on the wrong principles. I wish to state my conviction that where there is a discretionary jurisdiction given to the Court or a judge the judge in Chambers is in no way fettered by the previous exercise of the Master's discretion. His own discretion is intended by the rules to determine the parties' rights: and he is entitled to exercise it as though the matter came before him for the first time. He will, of course, give the weight it deserves to the previous decision of the Master: but he is in no way bound by it."

In my judgment exactly the same principle applies to a judgment of the Crown Court in the exercise of its discretion on an appeal from a decision by a Chief Constable in the exercise of his discretion under the Firearms Act. The Crown Court is of course bound to give appropriate weight to the decision of the Chief Constable and to pay serious attention to the reasons that he has given, but in the last resort the decision is that of the Crown Court and not that of the Chief Constable. It follows that, as the decision-making discretion is transferred from the Chief Constable to the Crown Court when the appeal is heard, this court will not interfere if the decision made on appeal lies within the discretion of the Crown Court. See Spencer-Stewart v Chief Constable of Kent [1089] Cr App R 307 per Lord Justice Bingham, pp 311 to 313. This principle was recently applied by this court when dismissing an appeal by the Chief Constable in Chief Constable of Lincolnshire v Agar (unreported 17th July 1995, CO 1265-95) which is briefly summarised in [1996] Crown Office Digest, page 132. In that case Stuart-Smith LJ at page 8 of the transcript:

"It is important to appreciate in these cases that this Court does not substitute its own decision for that of the person to whom Parliament has entrusted it. Parliament entrusts that decision in the first place to the Chief Officer of Police. There is then an appeal to the Crown Court at which the matter is considered over again de novo by the Crown Court Judge. In this case the Crown Court Judge had the advantage of hearing Dr Agar [the respondent before that court] give evidence. It was in a position to assess him as a witness and as a person and to decide whether or not he was a responsible person to whom the burden or the responsibility of keeping a shotgun could be entrusted. There was a good deal of material, as my Lord has recited, for saying that he was not such a person. Nevertheless, the Crown Court Judge came to the conclusion that he could be so entrusted. It is a very uphill task for the Chief Constable to try and dislodge that decision in this court. It can only be done if it can be shown that there was an error of law by the Crown Court Judge or that the decision was one which no reasonable judge could reach. For my part, I have not detected any error of law in the approach of the Crown Court Judge. The relevant authorities were cited to him and he applied his mind to the question he had to decide."

It follows that the answer to the first question asked by the Crown Court:

Whether we adopted the correct approach in making the findings of fact summarised in paragraph 13 above... rather than limiting our consideration to deciding whether the Chief Officer of Police could not have been properly satisfied as to the matters specified in section 30 of the Act,

is unquestionably "Yes". Mr Scrivener has shown us that in the Firearms Amendment Act 1997, section 41(1), an Act which is not yet in force, Parliament has put the matter beyond any question when, in the substituted section 44 of the 1968 Act, the new section 44 subsections (2) and (3) read:

"(2) An appeal shall be determined on the merits (and not by way of review).

(3) The court or sheriff 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."

I turn therefore to Mr Scrivener's second point. This relates to a passage in the case where the Crown Court said that it was of the opinion that although it accepted that the version of events described by Miss Button in her original statement was substantially true, nevertheless there was no element of irresponsibility in relation to firearms, and the appellant's conduct with regard to Miss Button did not raise the slightest risk of likelihood of the wrong use of firearms, whether in relation to members of family or to persons outside the family. The Crown Court's reasoning is set out in rather greater length in the transcript of his judgment, which formed part of the case, at page 7. There Judge Langan said this:

"We look first at the conduct of the appellant in connection with the incident between him and Miss Button. We assume in favour of the assistant chief constable that this was not the first occasion on which there had been domestic trouble and that there had been two previous incidents of violence as recounted in Miss Button's first statement. That is all, of course, most regrettable.

But it has to be said that weapons were in the house and available to the appellant for use should he have wished to use them. Not only did he not use them -- it has never been suggested by Miss Button that he did what many people do without intending to carry out the threat, that is to say, they threaten to use them -- but, however deplorably he may have acted in relation to her, there is no element of irresponsibility in relation to firearms. In our judgment, his conduct with regard to her does not raise the slightest risk or likelihood of wrong use of firearms whether in relation to members of the family or to persons outside the family."

Mr Scrivener submits that that passage in the judgment of the Crown Court reflects an error of law. He says that the Crown Court was wrong in looking only at elements of irresponsibility in relation to firearms. What it should have concentrated on was to look at the character of the appellant, as to determine whether the appellant's character showed such a degree of irresponsibility that he could not safely be trusted with the use of firearms in the future. In Spencer-Stewart v Chief Constable of Kent [1989] Cr App R 307 Bingham LJ said at page 313, after referring to the Scottish decision of Luke v Little:

"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."

In the later case of The Chief Constable of the Essex Constabulary v Germain (Unreported 20th March 1991) Stuart-Smith LJ, after reciting the cases of Ackers v Taylor and Luke v Little said:

"In my judgment [the Crown Court] have misunderstood the effect of the case of Ackers v Taylor. That case happened to be a case where the holder of the shotgun certificate was on a poaching expedition and had shotguns with him. But in my judgment that is not a necessary precondition. 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 five years and in my judgment the chief constable, who plainly had 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."

If we look at the case it is quite apparent that the Crown Court had well in mind the appropriate principles of law and the appropriate approach that it should adopt. It referred to both the cases I have just cited and also Ackers v. Taylor and to Luke v. Little which were the four cases from which the current jurisprudence in relation to matters of this kind emerged, and the transcript shows even more clearly than the case itself the way in which the Crown Court judge, and the magistrates sitting with him in the Crown Court, approached the task that they faced. They took into account the views of the Chief Constable. They cited them at considerable length and they said:

"We are extremely conscious of the very serious responsibility which rests on the assistant chief constable in discharging his functions under the Firearms Act."

They clearly gave full weight to the expertise of the chief constable, who has primary responsibility in these matters, and they added:

"We accept without question that, in matters of this kind, he must always err, if err he does, on the side of caution rather than take any risk which is measurable even in the smallest degree."

Then Judge Langan in his judgment said:

"Notwithstanding that, we have come to the conclusion that in the particular circumstances of this case he was not justified in revoking the two licences concerned..."

And for reasons which he then sets out they concluded that these appeals ought to be allowed. He then said this:

"Irresponsibility on the part of the holder of a licence in relation to matters other than firearms may often be a good ground for revocation of a licence. That is well established, for example, by the case of Germain. On the other hand, the commission of offences or conduct which does not raise the slightest risk or likelihood of the use of a shotgun is not a ground for refusal or revocation."

In my judgment it would be wrong to pick out of context the sentence on which Mr Scrivener fastened in support of his submission that the Crown Court had gone wrong in law. It is quite clear that Judge Langan structured the remainder of his judgment in three ways. First he looked at the conduct of the appellant in relation to the particular incidents involving Miss Button and the way that he treated her. In the context of that conduct and that incident, and that conduct only, he referred to no element of irresponsibility in relation to firearms. In that he was unquestionably correct because there is no suggestion that Mr Edwards used a firearm, or threatened to use a firearm, or was in any way involved with a firearm in the way he treated this lady.

The Crown Court then went on to consider the general evidence about Mr Edwards, who had given evidence to them, and they clearly were very impressed by the character witness who went shooting with him regularly and they referred to him as, generally speaking, a highly responsible citizen. They said:

"We have already referred to the responsible nature of the job he does..."

and they then go on to describe the character evidence they had heard. Finally they observe that Mr Edwards was not a man who had a drink problem of any kind, and that the witness for the Chief Constable had said that he was not aware of the appellant drinking to excess. It was on the basis of that approach that the Crown Court came to the view that it was appropriate to allow the appeal and to restore the certificates to Mr Edwards.

I am not for one moment suggesting that if I had been sitting in the Crown Court I would have reached the same conclusion as the Crown Court judge on the facts of this case, but it is completely clear from authority that the decision is for the Crown Court and not for this court on appeal on a point of law. The steepness of the task which a Chief Constable faces when he tries to dislodge a decision of the Crown Court was well set out by Stuart-Smith LJ in his judgment in Agar. For my part I can detect no error of law in the approach of the Crown Court, and, certainly so far as applying the law to the facts are concerned, I can find no basis on which it would be legitimate to take the view that the Crown Court had reached a conclusion that no reasonable Crown Court could properly have reached on the merits of the case. Accordingly, for those reasons, the answer to the second question that the Crown Court has asked must be "Yes" and the appeal is therefore dismissed.

MR JUSTICE BLOFELD: This is an important area of law. Both firearms and shotguns are potentially extremely dangerous weapons. As has been said before, the granting of a certificate is a privilege not a right. It is therefore essential that the greatest care is exercised before the decision is made to grant an applicant a firearm or a shotgun certificate. The Chief Officer of Police is peculiarly fitted to make these decisions as he has so many sources of information available to him, but inevitably these decisions are decisions that are made by him without a hearing. A dissatisfied applicant has a right of appeal under Section 44 of the Firearms Act 1968. That "appeal" is aptly to be described as a re-hearing, even though the earlier decision was not a hearing but rather a decision made on material. The test for the Crown Court is exactly the same as that that is applied by the Chief Officer of Police. It is set out in the Act. In all cases the Crown Court should always pay the closest attention to all the material that was before the Chief Officer of Police, but in addition the Crown Court may have other material before them, as they did here. I am unable to detect from the case stated, which incorporates the transcript of the judgment, that this Crown Court in any way fell into error of law or that it did not apply its discretion properly. I too find the passage by Stuart-Smith LJ in the Chief Constable of Lincolnshire v Agar which has been read into the judgment of my Lord, a very telling passage. I would only add that it is not sufficient for this court to conclude that it would have exercised its own discretion differently. It must be satisfied that the Crown Court came to a decision which no reasonable court could reach or that it fell into an error of law. For my part I am quite unable to go that far in this case, and therefore for the reasons given by my Lord I too would dismiss this appeal.

MR TIVERIDGE: I would ask for an order accordingly with costs against the appellant.

MR SCRIVENER: I accept that.

LORD JUSTICE BROOKE: We make that order.