Scottish Sheriff Court Decisions

STEWART DICK NICOLL v. THE CHIEF CONSTABLE TAYSIDE POLICE [1999] ScotSC 25 (2nd August, 1999)

B885/98

Act: Cruickshank, George Mathers & Co.

Alt: Stevenson, Force Solicitor, Tayside Police

PERTH: 30 July 1999. The Sheriff having resumed consideration of the appeal finds as follows:

1. The appellant is Stewart Dick Nicoll. The respondent is the Chief Constable of Tayside Police.

 

2. On 18 November 1998 the Chief Constable revoked Mr Nicoll's Firearm and Shotgun Certificates.

 

3. Mr Nicoll is married. He is 68 years old. He is a retired precision engineer. He was formerly a registered firearms dealer. He works part-time repairing firearms and shotguns. He has held Firearm and Shotgun Certificates for many years. His principal interest is target shooting. He is a member of Perth and District Rifle Club and of West Atholl Full Bore Rifle Club. He has represented Scotland in International competitions at home and abroad on many occasions. He has also used 0.22 rifles for vermin control and his shotgun for clay pigeon shooting and game shooting. He is a member of a shooting syndicate which shoots pheasants and other game.

 

4. Mr Nicoll has been involved with target rifles since he was 12 years of age. He has continued to be involved with target rifles up till present time. Since his Firearm and Shotgun Certificates were revoked he has arranged for his rifles to be transferred onto the certificate of a friend. He has made similar arrangements in relation to his shotguns.

 

5. Mr Nicoll has been diabetic for 27 years, for the last 25 of which he has been insulin dependent. He injects himself with insulin twice daily. Despite his best efforts to balance his insulin he occasionally becomes hypoglycaemic. This may happen on average 2 or 3 times a year to such an extent that he becomes unconscious. Such a state may occur either during the day or during the night, and may occur while he is asleep. There are other occasions when his wife recognises the symptoms of the onset of hypoglycaemia and takes remedial action to prevent his condition from worsening. On some occasions when symptoms of hypoglycaemia occur he can recognise that he is becoming hypoglycaemic. On other occasions he is not able to do so.

 

6. On one occasion, more than 15 years ago, Mr Nicoll suffered a hypoglycaemic attack at Dechmont Firing Range while in the car park, having finished shooting for the day. He had a firearm with him in the car. There was nobody else there. He lapsed into a coma. He came round about 4 hours later and at that stage was able to work out what he required to do in order to recover fully.

 

7. In about 1991 Mr Nicoll did not drive for a period of about 6 months having had an accident. That accident was caused by a hypoglycaemic attack. On one occasion he had a hypoglycaemic attack at a time when he was on a firing range at Blair Atholl. He was coaching someone and was in charge of a firearm. He was given assistance on that occasion.

 

8. While target shooting is taking place on a firing range nowadays a Range Officer will always be present, i.e. those who are there to shoot will always be supervised while shooting is in progress.

 

9. When Mr Nicoll goes to shoot game he normally shoots as a member of his present syndicate totalling 19 persons. At each drive about half the guns stand and the other half walk. On such occasions it is unlikely that he would be in charge of a shotgun at a time when he was not in the presence of other adults.

 

10. For a number of years Mr Nicoll has been in the habit of shooting rabbits. He shoots them in the dark with a 0.22 rifle from his Suzuki 4x4 vehicle using a lamp mounted on the vehicle to illuminate the rabbits. When he is engaged in such activity he is normally on his own.

 

11. On 2 September 1998 Mr Nicoll went to shoot rabbits in the evening after having been fishing. That evening he had taken insulin but had not had his normal evening meal. He took with him 2 digestive biscuits and a flask of coffee. In his vehicle he had a supply of glucose, as he usually had. He had an amount of glucose which he considered would be likely to be sufficient for his needs. In fact the amount of glucose which he had in his vehicle that evening was insufficient. After he had finished shooting rabbits Mr Nicoll realised that he was having a hypoglycaemic attack. He took such glucose as he had available. He placed his gun inside his vehicle and then attempted to drive home. At that time it was dark. Mr Nicoll drove without lights. As he was driving along the A9 Stirling to Perth road his vehicle was weaving about the road. It then left the road going onto the nearside verge where it collided with and mounted a crash barrier. Fortunately one of the people who stopped shortly after the accident was a nurse who recognised that Mr Nicoll had had a diabetic attack. Mr Nicoll was taken to Perth Royal Infirmary, having been given some chocolate and some glucose on the way there. Mr Nicoll made a rapid recovery from hypoglycaemia.

 

12. On that occasion there was a BSA Supersport 5 Bolt Action 0.22 calibre rifle in the front passenger area of Mr Nicoll's Suzuki. In the passenger footwell was a 0.177 calibre air pistol. The interior of the vehicle was strewn with spent 0.22 rifle cases. There was a gun case on the front passenger seat. In the gun case was a rifle magazine containing 3 live 0.22 calibre rounds and a tin containing 0.177 calibre air pellets. Within the case and on the ground floor of the vehicle there were a further 11 loose live 0.22 calibre rifle rounds. On examination of the 0.22 rifle it was found that the magazine had 1 live 0.22 calibre round in it. The bolt of the rifle was forward but not fully engaged. When the bolt was drawn back a further live round was ejected from the breach. The air pistol was unloaded. The 0.22 rifle was one of the weapons listed on Mr Nicoll's Firearm Certificate, as was the sound moderator which was attached to that weapon.

 

13. Pulling the trigger of the rifle would not have caused it to fire while the bolt was in the position in which it was found by the Police Officers who attended the accident. While Mr Nicoll was affected by hypoglycaemia and particularly after the accident there was a risk that unauthorised persons could have removed the 0.22 rifle, the air pistol and the ammunition for both. If an inexperienced person had got hold of the 0.22 rifle that person might have fired it with unfortunate consequences. The rifle and the sound moderator were in the possession of Mr Nicoll and were not secure while he was affected by hypoglycaemia on that date.

 

14. Prior to the incident on 2 September 1998 no concern had been expressed as regards the suitability of Mr Nicoll to be a holder of a Firearm Certificate and a Shotgun Certificate. Nor had such concern been expressed since he was first granted such certificates in 1974. He is known to be very safety conscious and responsible in relation to weapons. He was not perceived as presenting any danger to the public in that regard.

 

15. Following upon the accident Mr Nicoll's driving licence was revoked. He is not now permitted to drive motor vehicles. He is dependent on his wife or a friend for transport to places where he may engage in shooting activities. In the normal course of events when he is intending to shoot he is accompanied by the person who currently has his weapons on his certificate. The inability of Mr Nicoll to take his own weapons means that he cannot attend shooting activities in a car driven by his wife. Nor can he keep his weapons at home.

 

16. Mr Nicoll's Firearm Certificate was subject to two additional conditions. These were that "the .22/250/.22 rifles and ammunition" to which the certificate related should only be used for vermin control and zeroing on Denmarkfield Farm and on any other land over which he had permission to shoot with that class of firearm. They could also be used for target practice or zeroing at ranges in respect of which a range safety certificate for that class of firearm was held. The other condition was to the effect that the remaining firearms and ammunition to which to certificate related were to be used only on ranges in respect of which a safety certificate for that class of weapon had not been revoked or on ranges controlled by the Ministry of Defence. These other firearms are 7.62 Sin target rifles, of which he has three.

 

17. Mr Nicoll has disposed of his 0.22 sporting rifle. He does not intend to continue to shoot rabbits with such a rifle even if his appeal is successful. He wishes to continue to use 0.22 rifles and full bore rifles for target shooting. He wishes to continue to use his shotguns for clay pigeon shooting and for game shooting.

 

18. By letter dated 18 November 1998 the Assistant Chief Constable wrote to Mr Nicoll giving him formal notification that the Chief Constable was no longer satisfied that he could be permitted to possess firearms or shotguns without danger to the public safety or to the peace. Accordingly his Certificates were revoked with effect from 8 December 1998. In that letter the Assistant Chief Constable informed Mr Nicoll that it had been brought to his attention that on 2 September 1998 he was taken ill while driving his motor vehicle and that as a result of an accident he had been taken to hospital. He had been informed that the reason for Mr Nicoll becoming ill at that time was because he was an insulin dependent diabetic. The letter indicated that account had been taken of the opinion of the Medical Specialists who had treated Mr Nicoll including Dr Connacher, Consultant Physician, Perth Royal Infirmary. Dr Connacher stated that in his opinion "there could be a possible public danger should Nicoll suffer a hypoglycaemia attack while in possession of firearms and unaccompanied in the countryside."

 

19. Over the years since he was first diagnosed as suffering from diabetes in 1975 Mr Nicoll has been recorded as having poor recognition of the onset of such attacks. If he has little or no warning of such attacks and fails to act immediately when an attack develops he becomes unable to think rationally and to concentrate. There is a possibility of loss of consciousness. Mr Nicoll's condition appears to be constant, with no signs of deterioration.

 

20. Since the incident on 2 September 1998 Mr Nicoll has acquired a mobile telephone with which he will be able to summon assistance if he feels that he is about to have a hypoglycaemic attack. He now has with him at all times a sufficient supply of glucose. His medication for diabetes has recently been changed, apparently with benefit to him.

 

21. Mr Nicoll is prepared a to have a condition attached to his Firearm Certificate and to his Shotgun Certificate that he will not be unaccompanied while in possession of a weapon covered by the relevant certificate. While such a condition could be attached to a Firearm Certificate, it could not be attached to a Shotgun Certificate.

 

22. It is unlikely that there would any danger to the public safety or to the peace while Mr Nicoll is using target rifles, whether small or full bore, at a firing range. On such occasions he would be under the supervision of a Range Officer. It cannot be said that there would be no such danger if Mr Nicoll had possession of firearms or shotguns in other circumstances, e.g. at home or while travelling to or from a place at which he was to shoot or had been shooting. There is and will remain a risk that he will have a hypoglycaemic attack, the onset of which he will fail to detect, and that he may lapse into a coma. So long as he is in the company of a responsible adult that risk will at most be minimal.

 

Finds in fact and in law:

 

23. The Chief Constable had reason to believe that Mr Nicoll could no longer be permitted to have in his possession the firearms and ammunition to which his firearms certificate related without danger to the public safety or to the peace.

 

24. The Chief Constable was entitled to be satisfied that Mr Nicoll cannot be permitted to possess a shot gun without danger to the public safety or to the peace.

 

25. The Chief Constable was entitled to revoke the Firearm and Shotgun Certificates issued to Mr Nicoll.

Therefore repels the pleas in law for the appellant; sustains the pleas in law for the respondent; dismisses the appeal; finds no expenses due to or by either party.

This is an appeal against the decision of the Chief Constable to revoke Mr Nicoll's Firearm and Shotgun Certificates. In terms of the Firearms Act 1968 Section 30A(2) a Firearm Certificate maybe revoked if the Chief Officer of Police has reason to believe that the holder can no longer be permitted to have the firearm or the ammunition to which the certificate relates in his possession without danger to the public safety or to the peace. There is similar provision in Section 30C(1) of the Act in relation to the revocation of Shotgun Certificates. Section 44 (2) of that Act as amended provides that "an appeal shall be determined on the merits (and not by the way of review)". Section 44(3) of the Act provides that the 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. In disposing of an appeal a Sheriff may either dismiss the appeal or give the Chief Officer of Police such directions as he thinks fit as respects the certificate which is the subject of the appeal (see Firearms Act 1968, Schedule 5 Part III paragraph 3 as amended).

In the course of the submissions which were made at the conclusion of the appeal there was some discussion as to the effect of the amendments to the 1968 Act on the approach which the court should adopt in disposing of appeals such as this. At one time such appeals where treated as an exercise of the administrative functions of the Sheriff: see Kaye v Hunter 1958 SC 208. However, the decision in Rodenhurst v Chief Constable Grampian Police 1992 SLT 104 made it clear that the decision of the Sheriff was one which was taken in a judicial capacity. In the Cullen Report into the Dunblane tragedy at paragraph 8.115 it is stated that, since the decision in Rodenhurst, sheriffs had disposed of appeals to them on a variety of bases: in some cases the Sheriff had proceeded to reconsider the Chief Constable's decision along the same lines as such a decision would have been reconsidered in England & Wales. In some cases (including decisions of my own) the decision had turned on whether the Chief Constable's decision was "justified and reasonable". In others the sheriff had considered whether the decision was based on an error of fact or law, oppressive, unjust or malicious or unreasonable. Reference is made in that paragraph to an unreported decision of the Court of Session: Howson v Chief Constable of Fife, 5 November 1993 in which the court said: "the essential matter that the Chief Constable had to decide, that the Sheriff had to decide or that we should have to decide if we were considering the matter afresh, is whether or not the circumstances revealed a danger to the public". In the course of submissions in connection with this appeal reference was also made to an unreported decision of Sheriff Principal Risk: Banks v Chief Constable of Northern Constabulary 13 July 1995.

The only decision to which I was referred, which dealt with an appeal against the revocation of a Firearm Certificate subsequent to the introduction of the amendments to the 1968 Act, is an unreported decision of Sheriff Smith at Stranraer: Kelly v Chief Constable of Dumfries and Galloway, dated 24 August 1998. In that case the learned Sheriff adopted the approach of Sheriff Principal Risk. In Banks Sheriff Principal Risk, after setting out the relevant section of the Firearms Act, said: "That wording plainly indicates that the Chief Constable is required to apply his mind to material placed before him and to decide upon that material whether he is satisfied that certain conditions exist. If he is so satisfied he may or may not revoke the certificate. The decision is his. It seems to me that the starting point for the Sheriff is that he has before him a prima facie valid decision made by a public official in the exercise of his discretion which should only be altered if it is shown that that discretion was not exercised in proper manner. Summary application procedure is sufficiently flexible to allow the leading of evidence in appropriate cases, but that does not mean the Sheriff is deciding the issue afresh. He might be persuaded that the Chief Constable's discretion was vitiated by an error of material fact or of law, or less probably by oppressive, unjust or malicious actings on the part of the Chief Constable in his dealings with the certificate holder. If nothing of that sort is raised, the Sheriff should proceed in the manner of any appeal court reviewing the exercise of a discretion and should consider whether it has been demonstrated that the party vested with that discretion exercised it unreasonably."

In my opinion the approach of Sheriff Principal Risk cannot now be followed in its entirety having regard particularly to the terms of the Firearms Act 1968 Section 44 (2) and (3) as amended. The appeal is to be determined on its merits and not by way of review of an existing decision. Furthermore the court may consider any evidence or other material, whether or not it was available when the decision of the Chief Constable was taken. It respectfully appears to me that on that basis the Sheriff is required to consider the decision of the Chief Constable anew in the light of the material which is put before the Court. What the court is required to do is to determine whether or not, in the light of the information before it, the Chief Constable had reason to believe that the continuing possession by the appellant of the firearms, ammunition or shotguns referred to in the certificate (or certificates) concerned would be without danger to the public safety or to the peace. If there is reason to believe that there would be no such danger the appeal must be allowed and the certificate or certificates restored to the appellant. That would entail giving the Chief Constable appropriate directions. In determining whether the certificates should be restored the court must take account of the material which was before the Chief Constable and any relevant additional material. In assessing that decision the court must consider the statutory framework in the light of which that decision was reached.

That framework provides that, if there is reason to believe that the continuing possession would be a danger to the public safety or to the peace, the Chief Officer of Police may revoke the certificate or certificates concerned. Such a decision therefore calls for an exercise of discretion on the part of the Chief Officer. It will inevitably be difficult in some cases for the court to put itself in the position of a hypothetical Chief Officer of Police exercising a discretion statutorily vested in him. Part of the material which will be before the court is the decision of the Chief Officer of Police, which will include within it the reasons why that decision was taken. It may be that, in the course of an appeal, information will be put before the court which will convincingly contradict the basis for the decision of the Chief Officer. It may be that there will be evidence of events subsequent to the decision to revoke which have a material bearing on the decision. So, if it became apparent, subsequent to the revocation of the certificate, that the certificate holder had come to be of "intemperate habits or unsound mind" (see Section 30A(2)(a) of the Act as amended) he may have become a person who is unfitted to be entrusted with a firearm in terms of Section 30A(2)(a) for that reason, even though he was not unfitted for the reason given for the revocation. If such were to be the circumstances, and such circumstances do not apply to this case, the court might come to the same decision as the Chief Officer of Police but for different reasons. It is, in my opinion, necessary for the court to consider the material before it anew for these reasons.

In the course of that consideration the court will have regard to the decision of the Chief Officer of Police and the reasons given for it. It cannot and should not be ignored. In an unreported decision of my own: Cameron v Chief Constable of Tayside (Perth, 8 November 1991) I said: " In appeals of this kind I am of opinion that it is not for the sheriff simply to substitute his or her own opinion for that of the Chief Constable. It is clear that the Chief Constable has a discretion whether to grant, renew or revoke such certificates as these. He has to take account of information bearing on matters of public safety in the formulation of a policy in regard to such certificates and in the even-handed application of such a policy to particular applications or decisions to revoke certificates. These are matters which are unlikely to be fully before a court in the context of a single appeal, if only because the reasons for revocation are unlikely to set out the policy of the Chief Constable in full. I do not suggest that the Chief Constable is required to set out his policy. That is a matter for him, having regard to the facts of the particular case. Nor do I suggest that such appeals are to be determined by reference to the party upon whom the onus lies. But in marginal cases the court maybe slow to assume that the Chief Constable's exercise of his discretion is wrong. There will, in many cases, be room for a Chief Constable to arrive at a decision in the proper exercise of his discretion either to grant or not to grant, or to revoke or not to revoke a certificate on the information before him. It does not follow from the facts (a) that he has decided one way rather than another and (b) that the opposite conclusion would have been a reasonable exercise of his discretion that his decision should be reversed on appeal." In my opinion where the court is required to base its decision in an appeal on the same material as the Chief Constable had before him these comments remain applicable to appeals made subsequent to the coming into effect of the amendments to the 1968 Act. The purpose of an appeal is not to give the appellant a second bite at the same cherry. The purpose of an appeal is to determine whether the decision of the Chief Constable was wrong. As was indicated in the case of Howson, referred to above, the issue in essence is whether, having regard to all the material which is before the court, the circumstances reveal that the continuing possession of the weapons and/or ammunition referred to the certificate or certificates concerned would be without danger to the public safety or to the peace. Before the court could allow an appeal it would have to be satisfied that the Chief Constable had reached the wrong decision in respect of that matter.

In submitting that the appeal should be allowed Mr Cruickshank, the agent for the appellant, said that Mr Nicoll was not a danger in the sense mentioned in the Act when he was in possession of his normal faculties. The court should direct the Chief Constable to restore to Mr Nicoll the Firearms Certificate which he had previously held, deleting the reference to the BSA rifle which he had sold. That would mean that all the weapons which were now owned by him would be subject to a condition that they were to be used on ranges only. If he was so restricted he would always be under the supervision of another person while he was using the weapons. So far as his Shotgun Certificate was concerned there was ample evidence that he was a very responsible citizen when in his sober senses. He had acquired a mobile phone so that if he had a hypoglycaemic attack he could call for help. He now had different medication from the medication available to him at the time of the particular incident which gave rise to the revocation of his certificates. He now always had enough glucose with him. The only risk of him being on his own in the same place as his weapons during a hypoglycaemic attack was now within his own home. It was extremely improbable that he would have his weapons out of his gun cabinet, for example to clean them, at such a time and that at that particular time a window cleaner or a passerby (who might have an evil intention) would see what had happened. He would be prepared to accept additional conditions on his Firearm Certificate. He now had no driving licence. He was therefore dependent on another person to transport him to places where he could take part in target or game shooting.

No harm had occurred on the occasion of the incident which led to this appeal. A nurse had attended him and had stabilised his condition. It had been extremely unlikely that an ill intentioned person would have stolen his firearm. There could be no repetition of that risk because he would not now be alone in possession of his firearms. It was of great importance to him that his certificate be returned to him. He was an excellent shot. It was his hobby. He had now retired. He had taken precautions to ensure that there was no further risk to the public. Any risk which remains was now so slight and remote that the appeal should be allowed and the certificates should be returned to him.

On behalf of the Chief Constable Mrs Stevenson, after dealing with the approach which the court should adopt in dealing with appeals of this nature, referred to the statement of Dr Connacher. She said that it was not necessary for the revocation of his certificate that it was Mr Nicoll himself who was dangerous with a gun. If there was a risk that a criminal could get hold of Mr Nicoll's guns there would be a danger to the public. Such a danger could arise if Mr Nicoll did not take his normal meal or did not have sufficient glucose with him. She submitted that Mr Nicoll should not have attempted to drive home on the occasion concerned. He should have waited in his car until he recovered from his coma, as had happened on a previous occasion. It had been fortunate that no danger to others had arisen on that occasion. Mr Nicoll's car had left the road. A child or a criminal could have picked up his rifle. It had been in the area of front passenger seat in a loaded condition. Mr Nicoll had had a number of similar attacks in the past. He was unable to be sure that his medication would be effective. Although he had claimed that he would not in the future be on his own with weapons, the unexpected could happen. These were not matters which could be checked up on readily by the Police. If the appeal were to be refused Mr Nicoll would only suffer inconvenience. He was dependent on other people as it was to go target shooting and game shooting. Because of his connections with those activities he should not have difficulty finding someone to assist him. It was accepted on behalf of the Chief Constable that Mr Nicoll had had a long and safe record as a holder of Firearms and Shotgun Certificates. However, a balance had to be struck between that and the risk to the public. The appeal should be refused.

I accept that Mr Nicoll is not a danger in the sense mentioned in the Act when he is in possession of his normal faculties. The sad thing is that there are occasions when that is not the situation. He has and will continue to have poor recognition of the onset of an attack. If his certificates were to be returned to him the precautions which he now takes will not prevent an attack. Nor can there be any certainty that he will recognize the onset of hypoglycaemia. The arrangements which he has made, while no doubt inconvenient to him, enable him to carry on shooting in circumstances in which there will always be a responsible person present. There should, therefore, be no danger. If the certificates were to be returned to him. Mr Nicoll's possession of the weapons concerned could, in some circumstances, present a danger to the public. The number and nature of past incidents indicates that that danger is not negligible. Looking at the matter as a whole I am not satisfied that the decision of the Chief Constable was wrong. If the initial decision had been mine I would, on the information before me, have reached the same decision. I would have done so with very great regret. Mr Nicoll has had a long and very distinguished career as a rifle shot. He has clearly been a man who, throughout his life, has been very aware of the dangers which can arise from the use of firearms and shot guns. He has done all he can to avoid such dangers. The difficulties which he has encountered have arisen from a medical condition and not from any fault on his part. I have come to the conclusion that his appeal must be dismissed.

At the conclusion of the hearing of the appeal there was a debate as to whether expenses should follow success or whether there should be a finding of no expenses due to or by either party. This is not the case in which to determine a general rule. I am clearly of the view that in this case there should be a finding of no expenses due to or by either party. The Chief Constable in a matter of this kind is exercising a statutory function on behalf of the public as a whole. If that function is exercised in a manner which is improper or plainly unreasonable I would be of the view that an award of expenses against the Chief Constable would be appropriate. Similarly if an appeal is without merit and had no real prospect of success I do not see why a Chief Constable should not be entitled to recover the expenses to which the public would otherwise be put. In this case it is apparent from the papers which have been produced to the court that the matter was carefully investigated and anxiously considered by the Chief Constable before a decision to revoke the certificates was taken. Having regard to the decision which was taken it is not at all surprising that Mr Nicoll then appealed against it. The use of firearms has been a major part in his life for many years. He has represented Scotland internationally and wishes to continue to be able to pursue his hobby with the minimum of restriction. It is his misfortune that he suffers from diabetes to the extent to which he does. It was entirely reasonable that he should wish to appeal against the decision taken by the Chief Constable. In these circumstances it would be inappropriate to say that expenses must follow success.