Court of Appeal in Northern Ireland Decisions

"a firearm certificate shall not be granted unless the Chief Constable is satisfied that the applicant –

(i)is not prohibited by this Order from possessing a firearm, is not of intemperate habits or unsound mind and is not for any reason unfitted to be entrusted with a firearm; and

(ii)has a good reason for purchasing, acquiring or having in his possession the firearm or ammunition in respect of which the application is made; and

(iii)can be permitted to have that firearm or ammunition in his possession without danger to the public safety or to the peace."

A right of appeal lies under Article 28(10) to the Secretary of State. 

"22.-(1)Subject to paragraph (6), a person who has been sentenced to preventive detention, or to either imprisonment or corrective training for a term of three years or more, shall not at any time purchase, acquire or have in his possession a firearm or ammunition.

(2)Subject to paragraph (6), a person who has been sentenced to borstal training, to detention in a young offenders centre, to corrective training for less than three years or to imprisonment for a term of three months or more but less than three years, shall  not at any time before the expiration of the period of eight years from the date of his conviction, purchase acquire or have in his possession a firearm or ammunition."

Article 22(6) goes on to provide:

"(6)A person prohibited under paragraph (1), (2) or (3) from purchasing, acquiring or having in his possession a firearm or ammunition may apply to the Secretary of State under Article 55 to remove the prohibition, and, if the application is granted, the prohibition shall not then apply to that person."

Under Article 55 the Secretary of State on such application may make such order as he thinks fit having regard to the circumstances.

"In those cases where an applicant is subject to a life prohibition, the Secretary of State will not consider removal of the prohibition within 15 years of the applicant's release from prison, unless there are exceptional circumstances for doing so."

"I am a prominent member of Sinn Fein.  I am a member of the Six County Executive of Sinn Fein and I hold the position of Six County Organiser of Sinn Fein.  I am also a member of Sinn Fein's Ard Comhairle or national executive."

He has three previous convictions material to his entitlement to hold a firearm certificate.  In 1972 he was sentenced to three years' imprisonment for membership of the IRA.  In 1980 he was convicted of false imprisonment and sentenced to 12 years' imprisonment.  In 1988 he was again convicted of false imprisonment and on this occasion was sentenced to 15 years' imprisonment.  The 1980 conviction arose out of the seizure of a young man suspected by the defendants of being an informer.  He was held and restrained by a number of men in three different houses in Belfast until he was rescued by the Army some four days later.  The 1988 conviction was founded upon the capture by a hostile crowd in the early hours of 12 July 1986 of a young member of the Territorial Army off duty.  He was detained in a house in the Ardoyne area, bound and blindfolded, interrogated and seriously assaulted.  He was discovered and released in the afternoon of 12 July by soldiers taking part in a large rescue operation.  Each of these three offences would have triggered the lifetime prohibition provided for in Article 22(1) of the 1981 Order.  The seriousness of both offences of false imprisonment appears very clearly from the accounts of those cases given in the law reports.

"… (1) from a loyalist organisation made through the confidential telephone service on 21 May 2001 (and communicated to the applicant by police on 22 May 2001); the caller was female and she said that the applicant would be assassinated if he went into South Antrim during the following two weeks; (2) from the Red Hand Defenders communicated to a journalist on the Belfast Telegraph on the same date – it was to the same effect viz that he would be killed if he was seen electioneering in South Antrim; (3) his name was discovered on a computer disc owned by a person who was believed to have an association with a loyalist paramilitary organisation; and (4) on 25 September 2001 he was informed that an anonymous female caller had telephoned the RUC confidential telephone line the previous day and stated that the Red Hand Commandos would assassinate the applicant and his son."

In each instance the appellant was informed of the threat and he was offered advice for his personal safety.  There was also evidence that an attack had been prepared on the appellant's house in January 2001 and that one was mounted in July 2001 on his son's house.  The police conducted inquiries into the making of the threats and charged a person in relation to the discovery of the computer disc.  Work was carried out at public expense on the appellant's house under the Key Persons Protection Scheme in order to give protection against attack or intrusion.

"1.Our client's life is in imminent danger.  He has received numerous threats to his life from Loyalist paramilitaries and there have been numerous attempts on his life and the lives of members of his family.  The most recent of these was received only yesterday.

2.While our client avails of the Key Person's Protection Scheme, this is of no benefit while our client is not at home.  Some of the threats have been specific and have related to our client working in South Antrim, an area where he was electioneering until the recent elections.

3.Our client was elected to Antrim Borough Council in the local government elections held on 7^th June.  This has substantially increased his public profile.  Given that threats have already been made in relation to election work in this area, we submit that this risk is significantly increased now that our client has been elected.  Indeed our client was recently informed that Loyalist protests would be made should he attend the first meeting of the council on Thursday 21^st June.

4.The threat to our client's life represents a threat to the democratic process itself.  Our client is an elected representative of the people of Antrim Borough Council and we submit that in order to protect his life while carrying out his duties as a councillor he will require a firearms certificate.

5.Our client is now an elected representative of the people of Antrim Borough Council.  We submit that this fact demonstrates that our client is a suitable person to hold a firearms certificate.

6.Our client's last conviction was on 12^th July 1986, nearly 15 years ago.  His release from prison was 20^th January 1994.  We submit however that for the reasons outline above, and in particular the threat to our client's life, that there are exceptional circumstances for his allowing his application."

The solicitors were assured that the matter was being dealt with as quickly as possible, but the decision of the Secretary of State was not issued until a letter was sent on 11 October 2001, stating as follows:

"After careful consideration of all the circumstances of your client's case, the Secretary of State has decided not to remove the prohibition at this time.

In arriving at his decision the Secretary of State took into account the seriousness of Mr Meehan's criminal record and the fact that his period of release from prison on licence ended on 21 July 2001.  He also took into account the fact that the Chief Constable had no specific intelligence of a serious terrorist threat to Mr Meehan's life, the criterion by which he judges whether a person should be permitted to have a personal protection weapon.  This is quite a different matter from the general intelligence and significant threat which led to Mr Meehan's admission to the Key Persons Protection Scheme."

"9.The Chief Constable tells us that he has no specific intelligence from his own sources of a serious terrorist threat to Mr Meehan's life, the criterion by which he decides whether a person should be permitted to have a personal protection weapon (PPW).  A specific threat may also be implied if there is evidence of an attempt on an applicant's life.  This is quite a different matter from the general intelligence and significant threat which led to Mr Meehan's admission to the KPPS.

10.In addition, police consider that Mr Meehan represents a considerable risk to public safety by virtue of his criminal record and we would share that view.  One might disregard the IRA membership convictions in 1972 but the false imprisonment/kidnapping convictions in 1980 and 1988, which are offences involving violence, cannot be easily set aside.  As the police point out, Mr Meehan was on licence until 21 July 2001 and had he been convicted of another offence he could have returned to prison to finish the remaining 7½ years of his sentence.  That would have been a considerable incentive to him to be on good behaviour since his release in 1994.

11.In view of Mr Meehan's high political profile and notoriety there may have been a threat to his life from loyalist paramilitaries but, even if it were enough to warrant a PPW, we do not believe that his need outweighs the potential threat to public safety that his possession of a PPW would represent.

12.Taking all factors into account there are no exceptional circumstances which would lead the Secretary of State to consider removing the prohibition sooner than the minimum 15 year period, which will end in January 2009.  Moreover leaving aside altogether the issue of exceptional circumstances there appears to be no compelling reason for exercising the discretion conferred by Article 22 of the 1981 Order in Mr Meehan's favour.  In the absence of specific police intelligence to indicate a serious terrorist threat to Mr Meehan's life and in view of his criminal record containing serious offences of violence, I recommend that his application should be refused."

The minister agreed with this recommendation and accepted it.  Mr Kingsmill summarised in paragraph 6 of his affidavit of 29 November 2001 the material contained in the submission which the minister took into account relating to the degree of threat to the appellant:

"6.In the context of the decision making process the views of the police were obtained as well as the views of the branch of Government which administers the Key Persons Protection Scheme.  Notably the Chief Constable's view was that he had no specific intelligence from his own sources of a serious terrorist threat to the Applicant's life and that, if the prohibition were to be removed and the Applicant applied for a personal protection weapon, he would not meet this criterion.  A threat based on specific intelligence of the type just mentioned is to be distinguished from a threat based on general intelligence which may lead, as it did in the Applicant's case, to admission to the Key Persons Protection Scheme."

(a)       The judge applied the wrong test in determining the threshold of risk which must be established for the appellant's Article 2 rights to be engaged.

(b)       The Secretary of State's approach to the exercise of his discretion should have been modified in light of the applicability of Article 2.

(c)        The Secretary of State's discretion was fettered by the requirements (i) of a specific threat and (ii) that it be founded on a Special Branch intelligence assessment.

(d)      The Secretary of State wrongly took into account two factors:

(i)    the attempts on the appellant's life;

(ii)  the relevance of the appellant's release from prison on licence.

(e)       The judge wrongly held that there must be evidence of contemporary threats to the appellant's life.

(f)         The Secretary of State failed to make a proper assessment of the risk to the public if the appellant were granted a firearm certificate.

"115.The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.  It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.  It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.  The scope of this obligation is a matter of dispute between the parties.

116.For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.  Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.  Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Article 5 and 8 of the Convention.

In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.  The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life.  Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2.  For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.  This is a question which can only be answered in the light of all the circumstances of any particular case."

(a)     The degree of risk to the appellant's life created by the threats and other acts of those hostile to him.  In assessing these it is legitimate to take into account the temporal immediacy of such threats or attacks.  If the Chief Constable is to allow a private citizen to possess and carry a firearm for his personal protection – which involves the consequence that he or others may use it with lethal intent and result against another person – it is in our view legitimate for him to require that that threat should be of a real and immediate nature.  In referring to the need for contemporaneity the judge was in our view merely using a synonym for the test of immediacy. 

(b)     It is relevant to consider the steps which the State has already taken to reduce the risk, together with the steps which it or the appellant could proceed to take, other than the issue of a firearm certificate.

(c)      The difficulty involved in taking the action to reduce the risk requested by the applicant.  In a case of this nature that is small in extent, consisting merely in issuing a firearm certificate.

(d)    The possible adverse consequences to the public of such action, if taken.  The risk to the public arising from the arming citizens with lethal weapons has to receive very careful attention   The identity and antecedents of the applicant for a firearm certificate may be a very important consideration.