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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
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Cite as: [2001] NIQB 5
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Neutral Citation no. [2001] NIQB 5
Ref:
MCLF3343
Judgment: approved by the Court for handing down
Delivered:
16.02.2001
(subject to editorial corrections)
2000 No. 144
IN THE MATTER OF AN APPLICATION BY CONOR TENNYSON FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS DATED 20 APRIL 2000 BY THE CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY AND 25 JULY 2000 BY THE SECRETARY OF THE STATE FOR NORTHERN IRELAND
McLAUGHLIN J
Background
Early in 2000 the applicant applied to the Chief Constable of the Royal Ulster Constabulary for a firearms certificate pursuant to Article 28 of the Firearms (Northern Ireland) Order 1981 to permit him to possess a semi-automatic shotgun, together with suitable ammunition for same. The application was refused by the Chief Constable in a decision dated 20 April 2000. An appeal against that decision was lodged and the Secretary of State rejected the appeal in a letter of 25 July 2000. The decision of the Secretary of State was conveyed to the applicant in a letter to his then solicitor in the following terms:
"After careful consideration of all the circumstances of your client's case and representations, the Secretary of State has decided that there are no grounds for overturning the Chief Constable's decision."
Because the latter decision incorporated a reference to the earlier one Mr Valentine, who acted on behalf of the applicant, indicated that out of caution he had sought to quash both decisions. It is clear however that the final decision rested with the Secretary of State and it is that decision which is of consequence for the purpose of this application.
Preliminary Matters
Following receipt of the application Superintendent Gilbride wrote to the applicant on behalf of the Chief Constable indicating that the RUC, having considered his recent and previous criminal convictions, were of the opinion that he was not a suitable person to be entrusted with a firearm and that he was considering refusing the application. He invited the applicant to make any comments or representations which he wished to have considered. In a letter dated 6 April 2000 his solicitor responded saying that his client was of the opinion that his previous convictions did not 'disentitle him from being considered a suitable person to hold a firearm certificate' and indicated that any decision to reject his application would be resisted strenuously. No representations as such were made and the applicant's response was confined to these comments. The notice of appeal lodged on 18 May 2000 which contained detailed submissions and grounds of appeal. These did not produce a change in the outcome however as the original decision was confirmed by the Secretary of State in his letter to the applicant.
Superintendent Gilbride stated that he was of the opinion that Mr Tennyson was not 'a suitable person to be entrusted with a firearm'. Mr Valentine pointed out that the statutory test, as expressed in Article 28(2)(a)(i), is:
…. A firearm certificate shall not be granted unless the Chief Constable is satisfied that the applicant –
(i) …. is not for any reason unfitted to be entrusted with a firearm.
He sought to suggest that the use of the word 'unsuitable' in the letter, rather than the word 'unfitted', which is used in the Order, meant that the Minister had applied the wrong test. I consider this can be dealt with briefly. In my opinion the alleged distinction between the use of the word 'unsuitable' in the letter and the word 'unfitted' in the legislation is fanciful. In any event the officer was simply writing to the applicant to give him an opportunity to make such representations as he thought appropriate. His response came after he received legal advise and I cannot see how the use of the word 'unsuitable' could possibly have a prejudicial effect and none was asserted as it was not claimed that there was any difference in the meanings to be ascribed to the two words.
Mr Valentine then sought to argue that by using the expression 'no grounds for overturning the Chief Constable's decision' in the letter of decision of 25 July 2000 that this demonstrated the Department had simply conducted an exercise of scrutinising the decision of the Chief Constable rather than considering it de novo. The evidence as to how the appeal was conducted is contained in an affidavit sworn by Mr Ian Sloan, Firearms and Explosives Branch, Northern Ireland Office, Police Division. He has specified the documentation which was before his section when it prepared a summary and recommendation for the Minister and it is clear from it that all relevant material was before the official who prepared the document for the Minister. He states at paragraph 6 that the Minister, in addition to receiving the submission, was in receipt also of the whole file relating to the case and that the Minister considered all of that material before deciding to refuse the application for the certificate. I accept Mr Sloan's evidence and I am satisfied that this submission has no basis in fact and I reject it.
Criminal record of the applicant
It is clear that the applicant's criminal record was the key factor leading to the rejection of his application. It is worth considering it in some detail therefore. It involves some 46 convictions since 9 November 1976. The summary of the offences set out at the top of the record is as follows:-
Road Traffic Offences 17
Construction & Use Regulations 10
Lighting Regulations 7
PSV/HGV Regulations (Inc MOT) 5
Driving Licence Regulations 1
Liquor Laws 1
Common Assault 1
Assault on Police 1
Obstructing Police 2
Criminal Damage 1
On looking through the details relating to the individual charges it is remarkable how many of the convictions arose from breaches of administrative regulations of various kinds in the road traffic and other fields. They include convictions for no insurance, failing to produce insurance, failing to keep manual records when recording defective equipment, no goods vehicle licence, breach of liquor laws, using a vehicle without a tachograph and carrying an insecure load. In addition there are some very significant convictions under the Road Traffic Order. In 1984 he was convicted of driving whilst under the influence of drink, failing to undergo medical examination and failing to provide a specimen. In April 1988 he was convicted of driving with excess alcohol. Finally, he has had other serious offences of a public order nature recorded against him. In 1984 he was convicted of criminal damage, assault on the police and resisting the police and in 1996 he was convicted of obstructing the police. The applicant has sought to make the case that the 1996 convictions arose out of road traffic incidents, including those relating to the assaults and the other entanglements with the police. He has been at pains to point out that he has no convictions for dishonesty or any serious act of violence. He has also pointed out that prior to his convictions in December 1984 he did have a shotgun licence and that his licence was revoked as a result of convictions at that time but whilst in possession of a shotgun in the preceding years there was never any suggestion of abuse of the possession of the weapon. That seems to be common case and I accept it as factually correct.
The applicant's case
The Order 53 statement as amended contains a formidable list of issues, but in the event the hearing proceeded on the basis that only some of these were directly relevant or might give rise to the decision being impugned. It was argued that the use of his criminal record as a sole ground for refusing the certificate was irrational. I do not see how this point can be said to have any merit. Obviously a criminal record may be so slight that in the overall circumstances of the case it could not be said to make a person unfitted to be entrusted with possession of a firearm. It may be the case that any of the convictions registered against the applicant, if taken individually, or even in small clusters, might fall into that category. I make no judgment about that. What is clear, however, is that the catalogue of convictions against the applicant, the nature of the convictions and the period of time over which they were recorded could amount to sufficient evidence to support the opinion that the applicant is careless to the point of criminality about ordinary rules and regulations which govern many important aspects of everyday life, particularly the use of motor vehicles, that he is liable to become entangled with the police when challenged about these matters and that it might be said fairly that he should not be trusted with a firearm. I have no doubt that in this case the nature, extent and duration of the criminal offences recorded against the applicant amounts to material which a deciding authority not only may, but ought, to take into account. Once that is established there is no basis to interfere with the decision on that ground unless it can be challenged on grounds of Wednesbury unreasonableness the weight to be given to it in reaching the decision must be a matter for the decision-maker.
It was then said that the Chief Constable and the Secretary of State misinterpreted the meaning of the Firearms Order. This was argued by reference to the decision of the Queen's Bench (Divisional Court) of England and Wales, in Spencer-Stewart –v- Chief Constable of Kent (1989) 89 Cr App Rep 307. Mr Spencer-Stewart had been convicted of many criminal offences between 1970 and 1987. These demonstrated that he followed a way of life which involved consorting with criminals and a decision was taken to revoke his shotgun certificate. The Crown Court reversed that decision and the matter came before the Divisional Court by way of case stated. Section 28 of the Firearms Act 1968 provides:
(1) A shotgun certificate shall be granted or, as the case may be, renewed by the Chief Officer of police unless he has reason to believe that the applicant ….
(b) cannot be permitted to possess a shotgun without danger …. to the peace.
The Crown Court judge had concluded from the facts before her, that there was no risk to the peace from his possession or use or misuse of a shotgun. Since that was a decision open to the learned judge based on the evidence before her, and since the conclusion of fact was not under challenge, the court (Bingham LJ, as he then was, and Leggatt J, as he then was) dismissed the appeal. Mr Valentine sought to argue that this supported the general proposition that a shotgun certificate should not be revoked unless it gave rise to the view that the holder would be a danger to the peace for there was no other realistic basis upon which the applicant might be unfitted to be entrusted with the possession of a gun.
The first problem with this suggestion is that the legislation in Northern Ireland is different from that in England and Wales where appeals arising from refusals of firearms certificates are heard in the Crown Court rather than by a Minister. The Crown Court rehears the matter and an appeal lies to the Divisional Court by way of Case Stated. The limited principles upon which judicial review may be granted are not applicable as they are in Northern Ireland if the matter reaches the courts as a full appeal is heard in England and Wales. Further, under the 1968 Act, a shotgun certificate cannot be refused on the ground that a person is unfitted to be entrusted with the possession of a shotgun. That test is present in the 1968 Act but it does not apply in the case of an application for a certificate for a shotgun whereas in Northern Ireland the test may be used to reject an application for any type of weapon. The court in the Spencer-Stewart case was therefore dealing with an entirely different test in the legislation from that which I am asked to deal with.
Test of fitness
Counsel have conducted a LEXIS search in order to assist me and the only case which they have been able to find in which the equivalent of the "fitted to be entrusted" test was considered is Chief Constable of Essex –v- Cripps, Unreported, Queen's Bench Division (England and Wales), 5 November 1993. A transcript of the judgment was provided. It is worthy of note that Brooke J (as he then was) stated that reference to the line of authority relating to the different concept of danger to public safety was not directly relevant, and might be positively unhelpful, when applying the test set out in Section 30(1)(a) of the 1968 Act which is almost identical to the provision which I am asked to consider. The Act uses the expression 'otherwise unfit to be trusted with such a firearm' but I see no material difference in the two provisions.
I agree respectfully with the comments of Brooke J and consider that he was right when he said that it may be positively unhelpful when applying this test to have regard to authorities dealing with a different test involving different concepts. Brooke J went on to state that '…. Parliament did not seek to fetter his discretion by limiting the matters which he was to take into account'. It is clear to me that the Northern Ireland statutory provision is intended to give the decision-maker the widest possible discretion to take into account all matters considered relevant, subject only to the limits of rationality, in determining this important matter. I have regard also to the fact that policy in relation to the possession of firearms in general and shotguns in particular in our society may give rise to different and wider consideration of what might be regarded as reasonable from those which might obtain in England and Wales.
It must not to be overlooked either that in possessing a firearm a person is required to exercise great care for the safety of himself and others in many respects. A sample firearms certificate was produced to me and it sets out six general conditions which apply when a certificate is granted including a requirement that the firearm and ammunition must be kept in a secure place and out of the reach of children when not in use. There is also a list of what are described as simple rules 'to ensure that in using firearms you will not be a danger to yourself or other people'. I consider these to be important and valid considerations. Given the blatant disregard of simple rules and regulations in other aspects of life as demonstrated by the applicant's criminal record, I see no reason for saying that a Minister should not take into account such matters when deciding whether or not a person is likely to comply with the basic safety rules and regulations in respect of a firearm as the danger to others if these simple rules are ignored is self evident. I do not consider that the Minister has misinterpreted the provisions of the Firearms Order and reject these submissions as untenable.
There were some other criticisms made of the decision-making process. It was suggested that the official preparing the summary of the material to go before the Minister, which incorporated her own recommendation to refuse the application, contained exaggerated language and as such showed irrationality in the decision-making process. I reject this suggestion. It is clear from a reading of the document that the official concerned set out fully, and entirely fairly, all of the points in favour of the application. She then set out the case on behalf of the Chief Constable and included her own recommendation. The interpretation of the criminal record and her comments upon it were stern, but in my view were entirely within the realms of propriety and she was entitled to form those opinions in deciding what recommendation to make to the Minister. It must have been obvious to the Minister who received her recommendation that she was expressing her own view. Besides the Minister had all the relevant information in the files before him and reached his own decision in the matter.
Some other matters of minor import were raised by Mr Valentine but they were not pursued with any great vigour and in any event no ground to justify judicial review of the decision was advanced. I refuse the application.
2000 No. 144
IN THE MATTER OF AN APPLICATION BY CONOR TENNYSON FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS DATED 20 APRIL 2000 BY THE CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY AND 25 JULY 2000 BY THE SECRETARY OF THE STATE FOR NORTHERN IRELAND
Counsel:
B J A C Valentine Paul Maguire
For the Applicant for the Respondent