Jersey Unreported Judgments

Firearms - application for the removal of the prohibition of possession of a firearm

[2020]JRC060

Royal Court

(Samedi)

16 April 2020

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Averty and Nicolle

 

The Applicant in person.

Advocate J. P. Rondel for the Respondent.

judgment

the deputy bailiff:

1.        On 5^th March 2020 we heard Mr Osment's ("the Applicant") application dated 4^th December 2019 (served on 9^th December 2019).  We reserved our decision. 

The Application

2.        This is an unusual application in that there is no decision recorded of a similar nature. 

3.        The Applicant seeks an order under Article 37 of the Firearms (Jersey) Law 2000 ("the Law").  Article 37 provides: 

"Possession of firearms by persons previously convicted of crime

A person sentenced to imprisonment or detention, whether in Jersey, or elsewhere in the British Islands or (subject to paragraph (5)) in any place outside the British Islands, for a term of 3 years or more shall not at any time have a firearm or ammunition in the person's possession.

A person sentenced to imprisonment or detention, whether in Jersey or elsewhere in the British Islands, or (subject to paragraph (5)) in any place outside the British Islands, for a term of 3 months or more but less than 3 years shall not, at any time before the expiry of a period of 5 years from expiration of the person's sentence, have a firearm or ammunition in the person's possession.

A person prohibited from possessing any firearm or ammunition -

(a)     by paragraph (1), may apply to the Court for the removal of the prohibition once during each fifth year from the date of prohibition; or

(b)     by paragraph (2), may apply to the Court for the removal of the prohibition,

and if the application is granted this Article shall cease to apply to the person."

4.        The Applicant was sentenced to a total of three years' imprisonment by reason of seven offences of dishonesty at Southwark Crown Court on 17^th July 1986.  By reason of his sentence he is, accordingly, permanently prohibited pursuant to Article 37(1) from having "at any time" a firearm or ammunition in his possession. 

5.        However, he is entitled under Article 37(3) to apply to the Court "for removal of the prohibition once during each fifth year from the date of prohibition ... and if the application is granted this Article shall cease to apply to the person". 

6.        Accordingly the role of the Court is to consider the application to lift the prohibition under Article 37.  A subsequent decision, if an application under this Article succeeds, to grant a firearms certificate under Article 3(4) of the Law would be a matter for the Connétable.  Under Article 3(4) the Connétable applies the following test: 

"(4) A firearm certificate shall be granted by the Connétable if he or she is satisfied -

(a)     that the applicant is fit to be entrusted with a firearm and is not prohibited by this Law from possessing a firearm to which Article 2, applies;

(b)     that the applicant has a good reason for having in his or her 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 or her possession without danger to the public safety or to the peace."

7.        Two matters fall to be considered under Article 37.  The first is the rather curious wording of Article 37(3)(a).  The second is the appropriate test for the Court to apply when considering an application under Article 37(3)(a). 

8.        As to the construction of Article 37(3)(a) a literal construction has the consequence that the Applicant was only entitled to apply for removal of the prohibition during the following periods namely: 

17/07/1990 - 16/07/1991

17/07/1995 - 16/07/1996

17/07/2000 - 16/07/2001

17/07/2005 - 16/07/2006

17/07/2010 - 16/07/2011

17/07/2015 - 16/07/2016

17/07/2020 - 16/07/2021

9.        At first glance this would appear to be a curious result.  However, as the Royal Court observed in Milner -v- Connétable of St Helier [2006] JRC 178, in respect of the possession of firearms in Jersey, at paragraph 15 said:

"15.... The possession of a firearm is a privilege not a right.  This is not a community where the bearing of firearms is some traditional right.  A firearm is a dangerous weapon and the legislature has recently indicated, through the enactment of the Law, that the possession and handling of firearms are to be strictly controlled...."

10.      There is no human right to bear firearms and we do not think that the provisions of the Human Rights (Jersey) Law 2000 are of assistance in this matter.  It might be different if this provision of the Law concerned deprivation of firearms held by an existing holder of a certificate. 

11.      As to the provisions and content of Article 37(3)(a), the Court has considered, with some care the background to the drafting of this provision.  In its terms the provision is not ambiguous.  It marks a departure from the terms of the equivalent provision in Article 23 of the Firearms (Jersey) Law 1956 which did not have a special provision for those who were sentenced to three or more years' imprisonment.  However, the key provision was consistent with the draft Firearms Law that was considered by the Assembly in 1985 (Article 23 of the draft law is in very similar terms and the key provision in very similar terms) namely "a person prohibited by paragraph (1) from possessing any firearm or ammunition may apply to the Royal Court for the removal of the prohibition once during each fifth year from the date of prohibition."  Further, it appears from correspondence shown to the Court (between the Solicitor General of the day and the Chief Officer of the States of Jersey Police) that it was fully intended by those drafting the law that persons who fall into the same category as the Applicant should find it difficult to seek to have the prohibition upon them lifted.  It was suggested that the Court might be entitled to reject the obvious interpretation of Article 37(3)(a) on the grounds that it is "absurd".  Our attention was drawn to Bennion on Statutory Interpretation (Seventh Edition (incorporating the Supplement to the 7^th Edn), March 2019) and in particular Chapter 12 entitled "Construction against 'Absurdity'":

"Section 12.1: Presumption that 'absurd' result not intended

The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament.  Here, the courts give a very wide meaning to the concept of 'absurdity', using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief. 

The strength of the presumption against absurdity depends on the degree to which a particular construction produces an unreasonable result. 

The presumption may of course be displaced, as the ultimate objective is to ascertain what the legislature intended."   

12.      As to the "nature and strength of the presumption" Bennion says: 

"It is of course perfectly possible for Parliament to decide to pass an Act that, on one view at least, produces an absurd result, as the presumption against absurdity is simply a presumption.

The strength of the presumption depends on the degree to which a particular construction produces an unreasonable result.  The more unreasonable the result, the less likely it is that Parliament intended it, and accordingly the clearer the wording needed to produce that result." 

13.      Our attention was drawn to the decision of the Royal Court in the matter of Ostroumoff [1999] JLR 238 where the Royal Court did reject a construction that was contended for as absurd.  The relevant provision was Article 12 of the Bankruptcy (Désastre) Law 1990 which provided:

"Special provisions regarding matrimonial home

Where any property vesting in the Viscount pursuant to paragraph (1) of Article 8 or paragraph (3) of Article 9 represents the matrimonial home or an interest in part thereof the spouse of the debtor may, within three months of the date of the declaration, apply to the court for such order as is referred to in paragraph (5) as the court thinks fit." 

14.      The statute was designed to protect a spouse who was not insolvent.  However, on the facts of the case both spouses were insolvent and one of them argued that she should nonetheless enjoy the protection offered to the "spouse" provided by Article 12.  The Royal Court rejected this, saying: 

"We remain convinced that it was the intention of the legislature to protect a non-involved spouse and to strike a balance between her interest (which may also be the interest of the children) and the proper demands of creditors to receive satisfaction for their claims. 

The proposition of the applicant would in our view lead to an absurdity.  It cannot have been the intention of the legislature to give more protection to joint owners of property who are en désastre (and less security to their creditors) than to a single owner who is en désastre.  That is immediately apparent when we see that the result of a granting of the application would result in a freezing of the applicant's assets in her own désastre.  In our view the law did not intend that.  We agree with the argument in In re Hanley that the provisions of art. 12 make a considerable change in the previous position but to alter the common law concept in such a radical way as Advocate Renouf contends is a step too far."

15.      However, this is a rather different case from Ostroumoff as in that case the construction contended for would have frustrated the purpose of the legislation.  In this case the obvious construction merely seems to support the contention that it should be difficult for those subjected to a significant term of imprisonment from seeking to lift the prohibition upon them possessing firearms or ammunition.

16.      The difficulty for the Applicant in this case is that he is looking at this case through the lens of someone who is aged 73 and was last convicted of a criminal offence 34 years ago.  The terms of the statute may cause less difficulty with an applicant who has been convicted four, or seven or twelve years ago and merely needs to wait for the fifth anniversary of their sentence/commencement of the prohibition. 

17.      In R -v- Central Valuation Officer [2003] UKHL 20 Lord Millett said:

"116 ...The Courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless. 

117... the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result.  The more unreasonable the result, the less likely it is that Parliament intended it....I would prefer to go straight to the real question; whether the scheme established ... is so oppressive, objectionable or unfair that it could only be authorised by Parliament by express words or necessary implication."    

18.      Although this is an unusual provision the wording is clear.  There is no suggestion that the drafting was incompatible with the report which accompanied the draft law when it was presented to the States or is ambiguous. 

19.      Accordingly the Court interprets the provision as it is and the Applicant is accordingly only entitled to apply to lift the prohibition upon him "once during each fifth year from the date of prohibition". 

20.      If the consequence of the legislation is thought to be unjust then it is a matter for the States to amend the law, not for this Court to re-write it in the context of this or any similar application. 

21.      Accordingly, the Applicant should make his application between 17^th July 2020 and 16^th July 2021. 

22.      Nonetheless, as we have heard argument and evidence from the Applicant and also from Mr Cauvain, who gave evidence in his capacity as the Firearms Registrar for the States of Jersey Police, it is appropriate for us to consider the other matters that were raised before us.

23.      The second matter is the appropriate test for the Court to apply when considering whether or not to lift the prohibition. 

24.      In this regard we had some assistance from the case law arising from equivalent legislation in the United Kingdom although authority there is also sparse and, in any event, not binding upon this Court. 

25.      The equivalent provision is Section 21(6) of the Firearms Act 1968:

"(6) A person prohibited under subsection (1) ... 3A of this section from having in his possession a firearm or ammunition may apply to [the Crown Court] or, in Scotland, in accordance with Act of Sederunt to the sheriff for a removal of the prohibition; and if the application is granted that prohibition shall not then apply to him."

26.      It is clear that under the Jersey statute and the English equivalent that the Court has a discretion.  In the decision of the Divisional Court in Gordon -v- Northampton Crown Court (December 1999 CO/1022/99), Rose LJ presiding, the appellant had been sentenced to a term of 18 months imprisonment in respect of a number of offences of false accounting, and thereafter applied to Northampton Crown Court for removal of the prohibition.  He failed in his application and his appeal to the Divisional Court from the Crown Court was unsuccessful. 

27.      The Divisional Court made the following observations which we regard as helpful: 

(i)        "The discretion of the Crown Court is, by the very terms of the section, unfettered";

(ii)       "The burden must be upon the applicant to the Crown Court to satisfy the Court that the prohibition arising ... to be removed";

(iii)      "Reasons must be given";

(iv)      "The Court when looking at a matter of this kind must exercise its discretion by reference to the circumstances of the particular case and must not apply a blanket policy";

(v)       The Court went on to say "the terms of section 21(6) do not limit prohibition in relation to firearms to those cases where the conviction is for one of violence.  In any event, it is apparent from the words of the ruling which I have rehearsed that the nature of the offence, namely that it was one of dishonesty and had resulted in a sentence as long as 18 months, was referred to by the Crown Court judge.  Mr Mayo accepted that if there was to be an inquiry by the Crown Court as to the circumstances of the offences of which the appellant had been convicted, it was incumbent upon the appellant to adduce features of those offences which tended to support his application.  Mr Mayo accepts that the appellant did not lay before the Crown Court any such features."           

28.      Having heard the submissions of counsel in this case and having regard to this authority and the provisions of the Law, we regard the correct approach to this application to be as follows:

(i)        The Court has a wide discretion under Article 37(3)(a);

(ii)       The burden of proof is on the Applicant to show that the prohibition should be lifted;

(iii)      That burden is to the civil standard;

(iv)      The Court must consider all the circumstances of the case and not apply a blanket policy;

(v)       Reasons need to be given for the Court's decision;

(vi)      The matters which the Court is entitled to have regard to include, the length of the prison sentence and the nature of the offence, and the circumstances which a Connétable needs to have regard to under Article 3(4) when considering an application for a firearms certificate, although the application of such a test would not be determinative when considering whether to lift the prohibition. 

29.      We now apply these principles to the facts of this case. 

30.      In evidence, the Applicant said that he was 73 years old and had significant experience of the use of firearms, including pistol shooting.  Owing to various physical disabilities there are very few sports in which he may now compete.  He had an air pistol in England (hand guns cannot be held lawfully in England).  He shoots rifles whilst sitting at a table in England.  He also shoots full-bore at Bisley.  He had done some pistol shooting in the United States some 15 years ago and prior to that when he was in the Royal Air Force, where he was a trainer.  He ceased shooting regularly when he left the RAF in 1985.  Although this is not something that the Court could insist on, he said that he had no intention, if he successfully applied for a fire certificate in Jersey, to hold ammunition.  He would merely keep a pistol secured, as appropriate, at home and use the ammunition supplied at the club.  He ceased shooting in Britain between 1986, when he was convicted, and recommenced in 2012 when his UK firearms certificate was granted by Sussex Police.  There was an administrative error in relation to the granting of this certificate which in fact could only have been granted as a matter of English law by the Crown Court.  That was not an error which, on the evidence the Court heard, could be attributed to the Applicant. 

31.      The Applicant lives between Jersey and the United Kingdom and has done for many years.  In the United Kingdom he said he holds four rifles, three in his safe at Shoreham and one currently with a gunsmith. 

32.      The Applicant said that he had not offended since 1986 and claimed that he was innocent of the charges of which he was convicted.  The Court viewed this claim with some caution and in any event cannot treat the Applicant as anything other than a man who was sentenced to a term of three years' imprisonment in 1986.  The Applicant was uncertain as to whether or not he had appealed his conviction in the 1980s.  He had only very recently attempted to refer his conviction to the Criminal Cases Review Commission in the United Kingdom. 

33.      The members of the Court were very concerned about the fact that the Applicant had lied to the Jersey Pistol Club in his provisional membership application form dated 26^th October 2018 where he had said that when he ticked the box "No" when asked the question "Have you ever been convicted, in any jurisdiction for a crime other than a motoring or similar offence". 

34.      The same form required him to confirm "that I am not a prohibited person under Article 37 of the Firearms (Jersey) Law 2000".  "Prohibited person" was defined in bold type as follows "The Law prohibits the possession of firearms for specific periods by persons who have received certain custodial sentences.  Any person sentenced to imprisonment for a term of three years or more shall be prohibited for life, and any person sentenced to imprisonment for a term of three months or more (but less than three years) shall be prohibited for a period of five years from the end of their sentence".  

35.      The Applicant's explanation as to why he had dishonestly completed this form, namely that he had made a "grievous error in UK law being the same as Jersey law" was rejected by the Court.  Indeed it was palpably false.  The Applicant was applying to join a pistol club when he knew that hand guns had been banned in the United Kingdom.  He knew very clearly that Jersey and United Kingdom firearms legislation were distinct and accepted in evidence that his answer was not true. 

36.      The Court found that the Applicant was prepared to mislead the Jersey Pistol Club for the purpose of obtaining access to a firearm and the opportunity to fire a weapon in circumstances where he knew that it was unlawful for him to do so as a matter of Jersey law. 

37.      In Mr Cauvain's evidence he said that when he met the Applicant in February/March 2019 the Applicant did inform him of the fact of his previous convictions.  He also said, although this was not independently confirmed that when he was made aware by the Parish that he could not shoot in Jersey then he stopped visiting the pistol range.  

38.      We also note that the Applicant's evidence has recently been rejected by the Royal Court in a separate civil case in 2017 (see Trigwell -v- Clapp [2017] JRC 145 at paragraph 123(vii)).  Nonetheless in view of the Applicant's age, absence of convictions for over three decades, wish to resume shooting and indication that he will not wish to hold ammunition at home, the Court was satisfied that it was appropriate in the Court's exercise of its discretion for the prohibition upon the Applicant to be lifted so that he may, if he wishes, make an application to the Connétable for a firearms certificate. 

39.      However, by reason of the decision that we made in relation to the legislation he will need to make a further application to court on or after 17^th July 2020 which, in the circumstances, may be dealt with briefly in view of the indication that we have given as to the view that the Court took as to the way in which its discretion would most likely be exercised at that time.    

Authorities

Firearms (Jersey) Law 2000. 

Milner -v- Connétable of St Helier [2006] JRC 178. 

Human Rights (Jersey) Law 2000. 

Firearms (Jersey) Law 1956. 

Bennion on Statutory Interpretation (Seventh Edition (incorporating the Supplement to the 7th Edn), March 2019). 

Ostroumoff [1999] JLR 238. 

Bankruptcy (Désastre) Law 1990. 

R -v- Central Valuation Officer [2003] UKHL 20. 

Firearms Act 1968. 

Gordon -v- Northampton Crown Court (December 1999 CO/1022/99). 

Trigwell -v- Clapp [2017] JRC 145.