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 WC2A 2LL
		3 July 2012

1. MR JUSTICE KENNETH PARKER: This is an appeal by the Chief Constable of Essex Police by way of case stated against the decision dated 29 July 2011 of the Crown Court at Chelmsford (Mr Recorder Caudle sitting with two lay justices) allowing the appeal of Mr Donald Campbell against the revocation of his Firearms Certificate by the Chief Constable. I say at the outset that this was an appeal by way of case stated by reference to the evidence that was given before the Crown Court. That is manifest from the form and manner in which the lower court has stated the case in these proceedings. I shall return to that matter at the end.
2. The Firearms Certificate in question was granted on 28 October 2010 and was stated to be valid until 27 October 2015. Condition 4(a) of the certificate required that the firearms and ammunition to which the certificate related must be stored securely so as to prevent, so far as was reasonably practicable, access to the firearms or ammunition by an unauthorised person. The additional conditions referred to the purposes for which the firearms could be lawfully used, and identified relevant firearms, namely a .410 single shot pistol, a .22 rifle and a .243 rifle.
3. Turning to the relevant law and policy, section 30A(2) of the Firearms Act 1968 provides, so far as is material:

"(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."

4. Section 44 of the Firearms Act 1968 provides as follows:

"(1) An appeal against a decision of a chief officer of police under section ... 30A ... 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."

5. In 2002 the Home Office produced a document, Guidance to the Police on Firearms Law. Chapter 12 is entitled "Fitness to be entrusted with a firearm". Of particular relevance to this appeal is section II, "Intemperate habits", and in that is cited (a), (b) and (c):

"(a) Evidence of alcohol or drug abuse that may indicate that a person is unfit to possess a firearm due to the possible impairment of judgment and loss of self-control. The relevant case law here is "Luke v Little" (1980) supported by "Chief Constable of Essex v Germain" (1991). An assessment will need to be made into the circumstances of each case. Usually, it will be a pattern of behaviour that causes concern but there may also be cases where one-off incidents will bring into question the fitness of somebody to possess firearms. In the case of "Lubbock v Chief Constable of Lothian and Borders" (2001) the Sheriff ruled that the revocation of a firearms and shot gun certificate following one isolated drink driving incident was justified given the individual's general attitude towards the offence;

(b) Evidence of aggressive or anti-social behaviour which may include domestic disputes or evidence of hostility likely to lead to violent acts against particular groups categorised by, for example, race, gender, sexual orientation, religion or class. As at (a) above, an assessment will need to be made of each case, particularly as regards the seriousness of individual incidents; or

(c) Evidence of disturbing and unusual behaviour of a kind which gives rise to well-founded fears about the future misuse of firearms. A pattern of abuse should generally be regarded more seriously than a single incident, although isolated incidents should not be disregarded in the assessment of the person concerned and their fitness to possess a firearm."

6. Section IV, relating to "Safe-keep and handling of firearms" provides as follows:

"Consideration should include any evidence that unauthorised persons, such as family members or associates, who may themselves present a danger to public safety, might have access to the firearms, notwithstanding any arrangements for their security which may have already been made. Any history of serious incidents involving firearms, including their loss, or a careless approach to the handling of other potentially dangerous items, should also receive close consideration. Where the latter exists, the police should consider the likelihood of repetition."

Events giving rise to the revocation

7. Mr Campbell (now aged 63) lives with his partner, Michelle Bartlett (now aged 38), at Croft House, Spains Hall Road, Braintree, Essex. This relationship has apparently lasted for about ten years. Ms Bartlett has two children presently aged 17 and 13. On 23 November 2010 at about 9.30 in the morning, there was a violent domestic incident involving Mr Campbell and his partner. According to a formal witness statement made that day by her under, inter alia, section 9 of the Criminal Justice Act 1967, Michelle Bartlett was seriously assaulted by Mr Campbell. She said that he hit her in the stomach using a clenched fist, saying words to the effect that he would hit her where it would not mark her. He then took hold of her by the throat, pushed her against the fridge and punched her in the head, again with a clenched fist, at least twice, making contact with her just above her left eye. He then left by the back door. She locked the back door and went outside using the front door, immediately to phone the emergency services with her mobile.
8. While she was on the phone to the police Mr Campbell broke in through the front door using significant force, saying that he was coming to get money and his gun. She saw him leave with a rifle. The break-in was heard on the 999 call.
9. In a further statement made the next day (24 November 2010), Ms Bartlett added that she had bitten Mr Campbell a couple of times in self-defence after he had punched her in the stomach, as she was in fear and shock and did not know what else she could do to ward off his assault.
10. At about 12.15pm, following Miss Barlett's call to the emergency services, Detective Constable Burman, as part of a firearms team, was deployed to Croft Cottage. With Police Constable Sutton he arrested Mr Campbell as he returned home in his Shogun motor vehicle, for an assault on his partner. After caution Mr Campbell remained silent.
11. At 3.30pm Police Constable Mark Jones searched Croft House. He found various types and makes of ammunition left lying around the house. For example, in the front room he found a .22 calibre bullet, 24 loose Lyalvale .410 cartridges, a box which contained 7 Remington subsonic .22 rounds, two boxes of Remington .243 rifle rounds, containing 38 rounds in all. The keys to the gun cabinet, in an envelope marked "keys to Donny C's gun cabinet", were on the coffee table in the front room.
12. Police Constable Jones also found by the coffee table a box containing what turned out to be 45 grams of cannabis, a class B prohibited drug. The discovery of cannabis was not without significance in the present context given what is stated in the Home Office guidance about drug abuse.
13. On 8 December 2010 Mr Campbell was fined £65 by the Mid North Essex Magistrates for possession of this prohibited drug. On 18 February 2011 before the same magistrates he was fined £200 for failing to comply with the conditions of his Firearms Certificate.
14. On 23 March 2011 Police Constable Paul Quinton, having interviewed Mr Campbell, prepared a report concerning the events of 23 November 2010. Mr Campbell had told PC Quinton that he had earlier on 23 November taken out two of his guns to go shooting - the .22 rifle and the .410 pistol. Following the violent incident involving his partner, he had departed with the pistol, leaving the .22 rifle unsecured. He then returned shortly afterwards to collect the rifle, breaking into the house to do so.

The revocation

15. On 8 April 2011 Sue Harrison, Assistant Chief Constable (Operations) wrote on behalf of the Chief Constable as follows:

"I am in receipt of a report from the Firearms Enquiry Officer QUINTON regarding your arrest and subsequent conviction for Possession of Controlled Drug and Failure to comply with conditions of Firearms Certificate. In view of the information received I am revoking your Firearms Certificate under the provisions of section 30A of the Firearms Act 1968 (as amended), as I am satisfied you are unable to possess firearms without danger to public safety and to the peace and unfit to be entrusted with firearms and ammunition at this time."

The Decision of the Crown Court

16. At the hearing in the Crown Court, as recited in the statement of case, the Chief Constable relied upon documentary evidence and oral evidence of two police witnesses, the gist of which has already been recited in the description given of the events leading to the revocation.
17. There were two further matters referred to in evidence, which are mentioned at the second page of the statement of case as follows. On 10 September 2003 a female brought her daughter home from hospital, arriving at 21.30. A few minutes later it is said she heard a loud bang at the front door, and when she opened it she found a dead bloody rabbit in a carrier bag hanging from the front door. Mr Campbell was not interviewed in relation to this allegation and no action was taken in relation to the allegation. Secondly, in December 2004 it was said that Mr Campbell was arrested, interviewed and charged with allegations of theft, criminal damage and malicious communication against a female he had been in a relationship with for five years. A trial date was set for August 2005. Mr Campbell informed FEO Alan Davidson that the incident was little more than a domestic argument and that the allegations were made out of spite. Neither of those two incidents had precluded Mr Campbell from obtaining or continuing to hold a Firearms Certificate.
18. Mr Campbell, as recited by the statement of case, gave oral evidence in which he presented himself as the victim of aggression on that day by his partner. He admitted that he had left the .22 rifle unsecured at the premises, but he said that it could not be fired as the bolt and magazine were not attached to it. He also admitted that he had left ammunition lying around and unsecured in the house, but said that he was not in the habit of doing so and had not done so previously.
19. Michelle Bartlett, as recited in the statement of case, also gave evidence in which, entirely contrary to her statements made at the time of the events and inconsistently with the tenor of her immediate call to the emergency services, she said that she had been the aggressor and Mr Campbell had used physical force in self-defence. Her earlier statements, she said, comprised lies.
20. The Crown Court dealt with the events of 23 December as follows:

"The incident in November was quite clearly a domestic violence incident in as much as there was domestic violence in a domestic scene between the appellant and his partner. Who is in the right or the wrong does not really matter. It is right that he received an injury from the assault and, even if he had assaulted his partner in some way, it in no way involved guns or ammunition or anything like that and, indeed, to defuse the situation he immediately removed himself from the situation and from the premises and, as we know, was then in possession when he came back out for the second time with the rifle.

He does absolutely nothing untoward with the rifle, or the other gun that was in the car, or the ammunition and when he learned that the police were involved we are told he took it straight round to a registered firearms dealer, which struck us as a very sensible and responsible thing to do.

It has been prayed in aid by the police that he was out, having had an argument and a domestic incident, and about with guns and ammunition and therefore if he was agitated members of the public might be in danger, but we do note and we see the address and we have looked on a map and we can see that, in fact, it is in the middle of nowhere. It is surrounded by countryside, so it is not as though he is going out in a built-up publicised area with it. In any event, he does nothing wrong."

21. Having dealt with the events in that way, the Crown Court turned to the breach of the Firearms Certificate, and in the ruling said this:

"As I say, the most worrying feature is the ammunition lying around. We have heard that that is not a common thing for him, it is a one-off, that he was sorting it and then the domestic incident took place and because he left the scene the ammunition was left there.

There has been no suggestion in the past of anything like that so we ask ourselves whether that is sufficient to say that the fact that he on that occasion had some ammunition lying around loose is sufficient to say that his possession of the firearm and the ammunition would cause danger to public safety or to the peace."

The Questions for this Court

22. The questions asked specifically of this court are set out at the end of the statement of case. There are four questions:

"1. Were we right to conclude that the 23rd November 2010 "Domestic Violence" incident was not sufficiently untoward and serious to justify our taking into account Donald Campbell's previous convictions when evaluating the test for revocation of his Firearms Certificate?

2. Were we right to conclude that it would be wrong to take account of Donald Campbell's convictions and abandoned allegations prior to 2010 to his detriment?

3. Were we right to conclude that the breach of the terms of the Firearms Certificate was the sole remaining factor relied on by the applicant to the detriment of Campbell in evaluating the test for revocation of the certificate?

4. Whether, having said that, 'the test we have to apply in exercising our discretion as if we were the Chief Officer of Police is to decide whether, in our discretion, Mr Campbell can be permitted to have firearms and ammunition, to which his Certificate relates, without danger to the public or to the police' and having heard all the oral documentary evidence from both sides (some of which was not available to the applicant previously), it could be said that our use of the phrase, 'we find the discretion of the police was exercised in the wrong way' meant that we had not determined the appeal on the merits as required by section 44(2) of the Firearms Act 1969."

Decision

23. Turning now to my decision, it seems to me that question 3 is by far the most important. The appeal was reduced to a consideration of whether the breaches of the Firearms Certificate standing alone justified revocation, because the Crown Court in effect set aside as insignificant the specific events of 23 November 2010 for the reasons that are apparent from its ruling. However, I believe that they were wrong to do so, and that the decision to do so was insupportable in law.
24. On any view of the events there had been a violent domestic incident in which Mr Campbell had hit his partner, whether that was an unlawful assault or whether he was responding to some act of violence on her part. It was open to the Crown Court to conclude that Ms Bartlett's first account of the incident was the truth, and that Mr Campbell had committed a serious assault. Given the terms of the applicable legislation and the guidance, that alone would have been powerful grounds for revoking the Firearms Certificate. The Crown Court, however, simply did not reach any definite finding on that issue. In my view it should have done so, carefully examining how Ms Bartlett came to withdraw her statement. She had made her two statements contemporaneously with the incident. Those statements unequivocally pointed to Mr Campbell as the aggressor. She had apparently been in such fear at the time that she immediately rang the emergency services. In this context it must be remembered that Mr Campbell had previous convictions for assault occasioning actual bodily harm in 1973, 1989 and 1991, convictions that would have strengthened the grounds for revocation. He had an established propensity for violence, even if those convictions were relatively old.
25. Furthermore, the police also knew of his past convictions and his propensity and were likely to take action informed by that knowledge. In any event, immediately following this violent incident, Mr Campbell left the premises and took two firearms with him, a rifle and a pistol, with ammunition. With respect to the Crown Court, I have to say that I regard such conduct at that point as wholly irresponsible. First, the taking up of firearms in this manner in the immediate aftermath of a violent domestic dispute in itself gives cause for great concern for reasons that are almost too obvious to state. Secondly, viewed objectively, the situation that he thereby created on leaving the premises with firearms was also one of great public concern. In my view, it was entirely foreseeable that, in the light of what had just happened, his partner would contact the police, as she in fact did, reporting also that her partner had taken a rifle with him. To an objective observer, sensitive to the risks in such a situation, his intentions at that point would have been far from clear and would have been disturbing. He might, for example, seek to return to the home in order to confront his partner with firearms in his possession. An objective observer could not rule out the possibility that he might turn up at a school attended by one of his partner's children, in circumstances where it was known that he had a propensity for violence, had allegedly just seriously assaulted his partner and was armed with two firearms, including a rifle.
26. It is not at all surprising that, faced with a situation of this kind, created entirely by Mr Campbell, and taking account of all the potential grave risks to public safety, an armed response unit had to be called into action. This action was necessary, but it involved substantial deployment of police resources that should have been avoided. In short, a responsible holder of a Firearms Certificate, particularly one with the history of Mr Campbell, would have first and foremost made sure, even if he did leave the premises in this situation, that his firearms and ammunition were made absolutely secure before he left his house, particularly given that he had just been involved in an incident of domestic violence. Such a responsible person would have done so in order to minimise the serious concern that would inevitably be caused by a report that he had assaulted his partner and had then left the scene. As soon as it was reported that he had firearms, including a rifle, with him, such concern would obviously be intensified, as a responsible and careful holder of a Firearms Certificate would certainly have appreciated.
27. In these circumstances, in my view, it is no answer to say that in fact he did not employ his firearm for any improper purpose or that he later handed over his firearms to a registered dealer.
28. For these reasons, I do not believe that the events of 23 November 2010 could properly be set aside as insignificant in the way that they were by the Crown Court. The irresponsible conduct of Mr Campbell in the circumstances described above rendered him unfit to hold a Firearms Certificate. The Chief Constable had been fully entitled to revoke the certificate on that ground alone, and the Crown Court's decision to overturn the revocation was flawed by a fundamental misappreciation of the importance of what had happened in the context of the decision to revoke the certificate.
29. Furthermore, the breaches of the Firearms Certificate fell to be considered in the context of Mr Campbell's conduct as set out above. These breaches were themselves significant. A rifle had for a time been left unsecured. That was a breach of a clear obligation under the conditions of the Firearms Certificate, whether or not, as Mr Campbell later told the Crown Court, the rifle was not capable of use.
30. In addition, as explained, ammunition had been found left lying around the house, and the Crown Court had rejected as not credible that all this ammunition had been taken out for sorting and weighing. Of course, on top of these breaches were the cannabis possession and the earlier violent alleged incidents in 2003 and 2004. Even if Mr Campbell's conduct, standing alone, had not been sufficient to justify revocation, that conduct, taken together with the breaches of the Firearms Certificate, the possession of cannabis and the two more recent episodes of alleged violence in 2003 and 2004, themselves to be seen in the context of a person with three older convictions for assault occasioning actual bodily harm, made revocation, in my view, not only justifiable but inevitable.
31. This appeal by way of case stated, as I have already indicated, was brought on the footing that the evidence could not sustain the conclusions of the Crown Court. Realistically analysed, this is a challenge to the rationality of the decision of the Crown Court, and an invitation to this court, in the light of all the facts and the matters before us, to conclude that the revocation was lawful and correct.
32. For my part, I have no hesitation in concluding, for the above reasons, that the decision by the Crown Court was not rationally based, and that on the relevant facts and matters before this court, only one conclusion could in law have been lawfully reached, namely that the revocation was both lawful and correct.
33. It is unnecessary, perhaps, to answer formally the questions, but the answers formally to the first three specific questions are "no", and the third does not in any event arise.
34. For those reasons, I would allow the appeal. I would set aside the decision of the Crown Court setting aside the revocation and would restore the revocation in this case.
35. THE PRESIDENT: I agree. There is only once observation I wish to make.
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 Firearms 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 a Circuit that a Recorder should be permitted to hear any such appeal, given the overwhelming importance of the strictness of control over those who have the privilege of holding firearms.
38. MISS SIMCOCK: My Lord, I am very grateful for the detailed judgment. There is then just the matter of a costs application. That is an order which is in your discretion, which you are entitled to make under section 28A of the Senior Courts Act. I ask for an order that costs follow the event.
39. THE PRESIDENT: What are your costs?
40. MISS SIMCOCK: The bottom line figure is £3,270.
41. THE PRESIDENT: What is that made up of? Have you got a piece of paper we can look at?
42. MISS SIMCOCK: Yes, of course.
43. THE PRESIDENT: When this matter was heard by the Recorder, it was done in person, is that right?
44. MISS SIMCOCK: By Mr Campbell.
45. THE PRESIDENT: And on your side?
46. MISS SIMCOCK: Represented by counsel, my Lord. My instructing solicitor points out that the costs claimed are not in relation to the Crown Court appeal, but merely of this appeal by way of case stated.
47. THE PRESIDENT: I just wanted to know what had happened below. Yes?
48. MISS TYLER: My Lord, I resist the application on behalf of Mr Campbell. I appear unfunded today on his behalf. He appeared in the lower courts, and he would be in difficulty to pay any costs.
49. THE PRESIDENT: What does he do for a living?
50. MISS TYLER: May I turn my back?
51. THE PRESIDENT: Of course.
52. MISS TYLER: My Lord, Mr Campbell is registered disabled so he is in receipt of disability living allowance. His partner, Ms Bartlett, does not work either. (Pause)
53. THE PRESIDENT: You have heard what is said. He is, despite having previously having held a Firearms Certificate, apparently disabled. His wife is in receipt of benefits. Is there any point in us making an order, particularly in these sort of sums of money?
54. MISS SIMCOCK: My Lord, the enforcement of an order is perhaps another matter.
55. THE PRESIDENT: I know, but it is something we have to take into account. It is not for us to comment on his disability status, but is there any point? They have two children. They are on disability allowance. Is there any point in an order of this magnitude?
56. MISS SIMCOCK: My Lord, I point out that, on behalf of the Essex Police, they have expended public money in obtaining this judgment. In consideration of the public interest, they are concerned that where they are successful in their duties, at least the principle follows. We would be happy with an order that reflected costs to be assessed if not agreed.
57. THE PRESIDENT: There is no point; we will not do that.
58. MISS SIMCOCK: No doubt the Essex Police will take a view on enforcement and on Mr Campbell's personal circumstances, as any enforcement proceedings would also.
59. THE PRESIDENT: This is not a criminal matter, obviously, is it? If this was a case stated in a criminal case we would obviously be very concerned about means, and all the rules applicable to means would apply, therefore a, sort of, sum he could pay off within two years. But this is not a criminal case. You say it is a civil matter, and therefore costs should follow the event?
60. MISS SIMCOCK: Indeed, that would be the appropriate order, unless there are some exceptional circumstances. There are not here. It is often the case that those on the other side pray in aid a difficulty in payment, but that is a matter, in my respectful submission, that really should be taken account of either in an agreement between the parties of how costs are to be met or in enforcement proceedings. The principle should remain.
61. THE PRESIDENT: What is this enforced as? How are these costs enforced? By a debt collector? This is a civil judgment, is it not?
62. MISS SIMCOCK: Indeed.
63. THE PRESIDENT: So there is no question of going to the Magistrates' Court or any remission; it will be a full debt of £3,000, if we were to make an order in the sum.
64. MISS SIMCOCK: In that sum, yes.
65. THE PRESIDENT: It is unlike costs in a criminal case.
66. MISS SIMCOCK: It is unlike that; it would be a County Court judgment through enforcement proceedings there, in the same way that if one cannot pay any other type of civil debt, one can get a County Court judgment.
67. THE PRESIDENT: Okay, fine. Yes?
68. MISS TYLER: Your Lordships have the point. Mr Campbell does not work as a result of a liver transplant operation that he had. He has, as your Lordships will have seen in the documentation, used his Firearms Licence to assist those around him in terms of vermin control. He has been able to earn some living by that. But circumstances being as they are, with two children and a partner who does not work, and has also recently, as I understand it, undergone surgery in respect of a hysterectomy, he is simply not in a position to pay this money. It would put him and his family in an extremely difficult position.
69. THE PRESIDENT: If this is a civil claim, then his remedy would be in the ordinary way as someone who is insolvent deals with that matter. If this was a criminal causal matter, then the position would be very different.
70. MISS TYLER: My Lord, all I can say in addition is, of course, as a result of today's decision, that is going to have a significant impact on him in any event, both emotionally and financially, and to impose further costs in the circumstances, and his success in the Crown Court, would not be appropriate, in my submission, in this case.
71. THE PRESIDENT: He was not entitled to legal aid for this appeal?
72. MISS TYLER: I do not know the answer to that.
73. THE PRESIDENT: Because if he was he would be completely protected.
74. MISS SIMCOCK: He was not entitled to legal aid.
75. THE PRESIDENT: Why is that?
76. MISS SIMCOCK: For entirely the reason that your Lordship has already alluded to: it is a civil matter.
77. THE PRESIDENT: But I mean civil legal aid.
78. MISS SIMCOCK: But even in civil legal aid there are thresholds and categories of case for which one is entitled to legal aid. This simply is not one of them.
79. THE PRESIDENT: Not within the categories.
80. MISS SIMCOCK: Indeed. As you have alluded to, my Lord, the holding of a certificate of licence for a firearm is a privilege essentially, and in its wisdom the Legal Services Commission does not consider the litigation of those matters to be worthy of public funding.
81. THE PRESIDENT: Okay. (Pause)
82. This is an ordinary civil matter. This is an area where no public funding, we are told, is available. It seems therefore, as a matter of ordinary principle, that the respondent, Mr Campbell, must pay such costs as we think are correct. We have carefully examined the costs, and bearing in mind the sort of work done, we will assess them at £1,200.
83. The enforcement of that judgment is a matter for the civil courts. Thank you.