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Cite as: [2003] ScotSC 44
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Meikle v. Chief Constable Of Strathclyde Police [2003] ScotSC 44 (07 May 2003)
B55/00
JUDGEMENT OF SHERIFF PRINCIPAL
BA KERR, QC
in the cause
JOHN MEIKLE
Pursuer
against
THE CHIEF CONSTABLE STRATHCLYDE POLICE
Defender
__________________________________________________
Act: Cruickshank, George Mathers & Co., Aberdeen
Alt: Campbell, Legal Services, Strathclyde Police, Glasgow
Paisley, 7 May 2003. The Sheriff Principal having resumed consideration of the cause Allows the appeal so far as relative to the revocation of the appellant's shotgun certificate and recalls the interlocutor of the sheriff dated 6 March 2002 so far as relative thereto and to the expenses of the appeal to the sheriff; Deletes the seventy-fourth finding-in-fact and the second finding-in-fact-and-law and substitutes for the latter a second finding-in-fact-and-law in the following terms: "On the available evidence it is not established that the appellant cannot be permitted to possess a shotgun without danger to the public safety or to the peace."; Sustains the pleas-in-law for the appellant and Repels the second and third pleas-in-law for the respondent so far as relating to the revocation of the appellant's shotgun certificate; Grants the first crave of the writ to the extent of reversing and setting aside the decision of the respondent to revoke the shotgun certificate held by the appellant and Directs the respondent to withdraw his purported revocation thereof contained in the letter dated 18 January 2000; in respect of the appeal to the sheriff Finds no expenses to be due to or by either party; quoad ultra Adheres of consent to the said interlocutor of the sheriff so far as relative to the revocation of the appellant's firearm certificate and in respect of its certification of expert witnesses and Refuses the first crave of the writ so far as relative thereto; in respect of the appeal to the sheriff principal Certifies the appeal as suitable for the employment of junior counsel and Finds the respondent liable to the appellant in the expenses of the appeal procedure; Allows an account thereof to be given in and Remits same when lodged to the auditor of court to tax and to report thereon; thereafter Remits the cause to the sheriff to proceed as accords.
BA KERR
NOTE:
In this appeal under the Firearms Acts the appellant was originally deprived of both his firearm certificate and his shotgun certificate by a decision of the respondent intimated to him by letter dated 18 January 2000 whose material terms are set out in the sheriff's thirty-ninth finding-in-fact and were as follows: "I am satisfied that you are unfitted to be entrusted with a firearm and cannot be permitted to possess a shotgun without danger to the public safety or to the peace. I therefore hereby revoke your firearm and shotgun certificate. In coming to this decision, I have taken account of the circumstances of your conviction on 26 October 1999 before Banff Sheriff Court for a breach of the peace in that you conducted yourself in a disorderly manner by making indecent video recordings of children. I have also taken into account the representations of your doctor ...". The respondent thus invoked certain provisions of sections 30A(2)(a) and 30C(1) of the Firearms Act 1968 as amended to revoke the appellant's said certificates. The precise terms of the charge of breach of the peace to which the appellant had pled guilty on 26 October 1999 are narrated by the sheriff in his twenty-seventh finding-in-fact and were that "... on 3 August 1999 at the Showfield, Turriff and elsewhere in Aberdeenshire you did conduct yourself in a disorderly manner, record by means of a video recorder the actions of females and in particular their dressing and undressing and did commit a breach of the peace". Against this decision to revoke his said certificates the appellant appealed by way of summary application to the sheriff who having heard evidence and argument dismissed the appeal with expenses, thus confirming the revocations. From the sheriff's findings-in-fact-and-law at page 12 of his judgement it is apparent that in common with the respondent's delegated officer (Assistant Chief Constable Papworth) he found established the same grounds of revocation, namely those set out in sections 30A(2)(a) and 30C(1) of the Act and in particular those which are stated in the following terms:-
Section 30A: "A firearm certificate may be revoked if the Chief Officer of Police has reason to believe that the holder is (otherwise) unfitted to be entrusted with a firearm".
Section 30C: "A shotgun certificate may be revoked by the Chief Officer of Police if he is satisfied that the holder cannot be permitted to possess a shotgun without danger to the public safety or to the peace".
These provisions were inserted into the Firearms Act 1968 in place of the original section 30 by section 40 of the Firearms (Amendment) Act 1997 but it is noticeable that the same grounds of revocation did appear in that original section 30 at subsections (1)(a) and (2) thereof: the only change in respect of them seems to have been the replacement in relation to the first ground of the words "is satisfied" by the words "has reason to believe".
It may assist an understanding of what is said in this note below to observe at this point the other provisions of section 30A(2) and 30C(1) of the Act. The whole material provisions of these sections are usefully set out by the sheriff at page 25 of the note which forms part of his judgement in the appeal to him. Section 30A(2) sets out grounds for the revocation of a firearm certificate in two paragraphs. By paragraph (a) revocation can occur if the chief constable (or the court) has reason to believe the certificate holder to be (first) of intemperate habits or (secondly) of unsound mind or (thirdly) otherwise unfitted to be entrusted with a firearm. The sheriff's decision that the firearm certificate had been properly revoked proceeded on the third of these grounds, as did the respondent's decision so far as expressed in the aforementioned letter of 18 January 2000. It is to this third ground that I refer as the test or ground under section 30A(2)(a) in what follows. By paragraph (b) a further single ground is given whereon a firearm certificate may be revoked which happens to echo almost exactly the ground for revocation of a shotgun certificate with which the present appeal is concerned, namely that there is reason to believe that the certificate holder can no longer have the firearm ... to which the certificate relates in his possession without danger to the public safety or to the peace. In evidence before the sheriff ACC Papworth appears to have given the impression that it was on this ground that he decided on the respondent's behalf to revoke the firearm certificate (see the sheriff's note at the top of page 22). This ground seems to have been added into the Act by amendment in 1997 (for a firearm certificate: it always existed for a shotgun certificate) and is referred to hereinafter by me as the test or ground under section 30A(2)(b). For completeness I should add that the subsequent subsections of section 30A set out further grounds for the revocation of a firearm certificate but none of them need concern us here.
Section 30C(1) sets out two grounds whereon a shotgun certificate may be revoked. They are the only two grounds for revocation and the present appeal is concerned only with the second of them, which appeared in the original 1968 Act and is to the effect (almost identical to the ground under section 30A(2)(b) for revocation of a firearm certificate referred to above) that revocation can occur if the chief constable (or the court) is satisfied that the certificate holder cannot be permitted to possess a shotgun without danger to the public safety or to the peace. It is to this second ground that I refer throughout the remainder of this note as the test or ground under section 30C(1). The other (first) ground for revocation of a shotgun certificate concerns prohibition of the certificate holder on account of having been sentenced to certain terms of imprisonment which does not apply to the present appellant who has never been imprisoned and so that ground has no relevance to this appeal.
For certification purposes a distinction is drawn in sections 1 and 2 of the 1968 Act between a shotgun and a firearm. A firearm certificate is required for any firearm which is not a shotgun or an air weapon. A shotgun certificate means what it says and applies only to shotguns.
The present appeal to the sheriff principal was marked initially in respect both of the revocation of the appellant's firearm certificate and in respect of his shotgun certificate, as can be seen from the note of appeal which contained two not dissimilar grounds of appeal. Shortly before the date set for the hearing of the appeal a letter was received from the appellant's agent intimating withdrawal of the first ground of appeal and that the appeal would proceed in relation to the revocation of the shotgun certificate only. Having now heard the appeal I take this withdrawal in respect of the firearm certificate to betoken a recognition on the part of the appellant or at least on the part of his legal advisers that the sheriff's decision was in that respect correct or in any event not appealable with any reasonable prospect of success. For my part I am of opinion, as will be seen below, that that is a proper recognition of the truth of the matter and it is clear to me that the facts found by the sheriff (which of course cannot normally be challenged before the sheriff principal) form an entirely sufficient evidential basis for the conclusion reached by him in his first finding-in-fact-and-law at page 12 of his judgement. The question remaining in the appeal is whether there exists in the case a sufficient evidential basis for the conclusion reached in the sheriff's second finding-in-fact-and-law.
For the appellant the position adopted by his counsel before me at the hearing of the appeal was that the sheriff's second finding-in-fact-and-law, which effectively held the "danger test" in section 30C(1) to be established, had no proper or sufficient basis in the available evidence. From the authorities it was clear that the danger contemplated by the statutory test was one arising out of the certificate holder's possession of a shotgun and the risk that he might misuse it in a manner endangering the public safety or peace. A conviction therefore of an offence not involving a gun could not of itself justify a revocation of the certificate in the absence of some coherent line of reasoning properly connecting it to the risk or danger previously described. It was necessary therefore to consider specifically what risk existed of the holder being a danger with a shotgun and to identify some particular danger arising out of his possession of a shotgun which put public safety or the peace in jeopardy. In the present case the breach of the peace to which the appellant had pled guilty on 26 October 1999 had no connection with guns or with violence, there was no suggestion of any failure on the appellant's part to maintain proper security of the guns possessed by him and there was no evidence from the psychologists or any other source of any propensity in the appellant to undue anger or to violence. Even the sheriff's assessment of the broad conduct of the appellant and his demeanour as a witness in his own appeal, which was admittedly adverse to the appellant, contained nothing indicative of the appellant presenting any danger to the public. The statutory test in section 30C(1) was concerned with danger but there was in short no evidence before the sheriff to suggest that the appellant would present a danger by virtue of his possession of a shotgun. The sheriff had formed a dislike or mistrust of the appellant in the witness box but that was not relevant to the statutory test and it was inappropriate to base his judgement so largely on his own assessment of the appellant when there existed expert evidence from psychologists in the case. The sheriff had misdirected himself by importing a concept of trust into the statutory test under section 30C(1) whereof it formed no part: he had been led into this misdirection partly by a failure to recognise that Professor Cooke had been misled into the same error by the confused language of another sheriff's judgement in a case of Thomson v Chief Constable of Grampian Police (see below) to which the professor had been referred by the present respondent's agent. The sheriff had thus misconstrued the statutory test which he had to apply and had then gone on to speak of a "loss of control" in the appellant's photographing of girls which he had transferred without any evidential basis to the appellant's possible behaviour with a shotgun even although his conduct with the videocamera carried no implication of violence and so could yield no inference of a danger to the public safety or to the peace with a shotgun. In the whole matter the sheriff had fallen into error of law and I was invited to allow the appeal with expenses and substitute for the sheriff's ruling a direction to the Chief Constable to withdraw the revocation embodied in ACC Papworth's letter of 18 January 2000 in respect of the shotgun certificate.
For the respondent it was maintained that the present appeal was in truth a disguised attack on the sheriff's exercise of his discretion, especially since the nature of an appeal to the sheriff had since 1997 been one for determination of the matter by the sheriff on its merits and not a review merely of the chief constable's decision - in other words a rehearing by the sheriff starting with a "blank sheet" in which the chief constable's view was merely one factor to be taken into account: see section 44(2) of the 1968 Act as substituted by section 41 of the 1997 Act. It was accordingly open to the sheriff to take account of all matters before him including such things as the demeanour of the appellant before him and the impression formed by him of the appellant as a person. A prospect of violence was not at all a necessary ingredient of "danger ... to the peace" (see the case of Ackers, infra) and the appellant's counsel was accordingly wrong to suggest that the sheriff should have been looking for evidence to that effect or considering whether the appellant's continued possession of a shotgun presented a risk of violence. The statutory test contained in section 30C(1) was a broad one allowing the chief constable to take account of all material factors including convictions for offences not involving a shotgun and the risk of repetition of such offences. Professor Cooke had been wrongly criticised by the appellant's counsel for supposedly making a legal mistake in reliance on the Thomson case. The sheriff's assessment of the appellant's character was an entirely legitimate exercise in the context of the appeal to him which, taken together with his use of a videocamera to photograph juvenile girls which had been a gross misjudgement and amounted itself to an undermining or endangering of the peace, could lead him reasonably to conclude that a dangerous prospect existed of a general loss of control on the appellant's part and in particular a loss of control with his shotgun. Essentially the sheriff had correctly understood and applied the statutory test in section 30C(1) and had taken account of all relevant considerations in the exercise of his discretion which was beyond criticism and the appeal should be dismissed with expenses.
I was referred in the course of argument to numerous decisions in this field, the great majority of them by single sheriffs hearing first appeals from the decisions of chief constables to revoke certificates, which were of interest but not authoritative or binding upon me. For completeness I record here that I was also referred to the following cases in respect of the nature of an appeal to the sheriff or sheriff principal and the manner in which such appeals ought to be dealt with or approached, namely (1) Benmax v Austin Motor Co 1955 AC 370; (2) Rodenhurst v Chief Constable of Grampian Police 1992 SC 1; (3) Nicoll v Chief Constable of Tayside Police (unreported), Perth Sheriff Court (Sheriff Principal Cox) 5 May 2000 and (4) Denton v Chief Constable of Dumfries & Galloway (unreported), Dumfries Sheriff Court (Sheriff Principal McInnes) 7 February 2001. In addition I was referred in this connection to part of the proceedings of the House of Lords in the debate on the Firearms (Amendment) Bill on 11 February 1997 as recorded in Hansard at columns 161 to 168 inclusive. These matters were however relatively uncontroversial in the present appeal and I do not dwell further upon them here.
In connection with the criteria thought relevant by various courts to the application of the statutory test with which the present appeal is concerned I was referred to eleven decisions, whereof seven were decisions of single sheriffs. I deal with them here in their chronological order as follows. In Ackers v Taylor 1974 1WLR 405 (a decision of three judges in a Divisional Court of the English High Court) it was held that carrying shotguns on a poaching expedition involved a breach of good order and so constituted a "danger ... to the peace" without any need for a notion of violence or prospective violence, so that the shotgun certificates of the three appellants had been rightly revoked. It was also made clear that what mattered was a danger to the peace arising out of the possession, use or misuse of a shotgun only and not a danger or potential danger arising by any other means. In Luke v Little 1980 SLT (Sh.Ct.) 138 (a decision of a single sheriff at Arbroath) it was held, under the old basis of appeal, that the chief constable had been sound in his equiparation of irresponsibility with a gun to irresponsibility with a car so that an appeal against revocation of a shotgun certificate following upon three drink-driving convictions was refused. In Spencer-Stewart v Chief Constable of Kent (1989) 89 Cr.App.R.307 (a decision of two judges in a Divisional court of the English High Court) it was again stated that the danger to the peace requiring to be considered was a danger involving the use of a shotgun and it was held that a conviction for handling stolen goods was not a proper ground for revoking a shotgun certificate. Bingham LJ (as he then was) did however say obiter that a man given to gross bouts of drunkenness might well be an unsafe person to be "entrusted with a shotgun". In Stewart v The Chief Constable of Strathclyde Police (unreported), Oban Sheriff Court 7 June 2000 (a decision of a single sheriff at Oban) the holder of a firearm and shotgun certificate threatened suicide with a gun when in a state of depression on account of his domestic circumstances but his appeal against their revocation was granted on the view supported by psychiatric evidence that such a situation was unlikely to recur. In Thomson v The Chief Constable of Grampian Police (unreported), Aberdeen Sheriff Court, 6 September 2000 (a decision of a single sheriff at Aberdeen) an appeal against revocation of a firearm and a shotgun certificate was refused where the certificate holder had conducted himself menacingly towards his estranged wife and her new man but not involving guns. I comment more fully on this case below. In Denton v The Chief Constable of Dumfries & Galloway (unreported), Dumfries Sheriff Court, 26 October 2000 (a decision of a single sheriff at Dumfries) the appellant left his shotgun covered up in the rear of a locked car with some cartridges while he spent the night at his girlfriend's house but in the morning found that his car had been broken into and the gun and cartridges stolen. He pled guilty to a contravention of the Firearms Act 1968 and was fined. The sheriff however granted his appeal on the view that guns have to be carried in vehicles and sometimes left briefly unattended but the car had been locked with the gun concealed and the sheriff assessed the appellant in his evidence as understanding the need for improved security and as having taken steps in that direction. An appeal to the sheriff principal (on the nature of such an appeal to the sheriff under section 44(2)) was refused. In Evans v The Chief Constable of Central Scotland Police (unreported), Stirling Sheriff Court, 9 May 2001 (a decision of Sheriff Principal Nicholson) the appellant whose shotgun certificate the chief constable had revoked indulged with some frequency in disputes with his neighbours over a gate on an access road; these disputes involved intimidating and threatening behaviour on his part, of which the sheriff disapproved, but never involved a shotgun and the sheriff held it not proved that any danger to the peace or public safety arose from his possession of a shotgun so that the ground for revocation of the certificate was not established. The sheriff principal in refusing the appeal to him said inter alia that "the relevance of past conduct is to be assessed in terms not of whether there is a risk of future misconduct of any kind but rather of whether there is a risk of future misconduct involving the use or threatened use of a shotgun" and that the presence or absence of a shotgun in any prior incidents founded on was a matter to be weighed by the sheriff. The sheriff principal also considered that since a sheriff's decision could be appealed to him only on a point of law (paragraph 4 of part III of schedule 5 to the 1968 Act as amended) he could not review the sheriff's decision and substitute a decision of his own unless he discerned an error of law in the sheriff's approach to the issues before him. I comment further on this case below. In Lubbock v The Chief Constable of Lothian & Borders Police (unreported), Jedburgh Sheriff Court, 18 June 2001 (a decision of a single sheriff at Jedburgh) it was held that both a firearm certificate and a shotgun certificate should be revoked on the same ground (now applicable to both), namely that it was established that possession by the appellant of firearms or shotguns would constitute a danger to the public safety or peace where the appellant had been convicted of a single drink-driving offence (Con RTA 1988 s.7(6): failure to provide specimens). The sheriff viewed the particular offence as one of some gravity, showing a failure to grasp the potential danger to others which the sheriff described as astonishing and lamentable while he found the appellant's expressions of remorse in the witness box perfunctory and unconvincing. In Willis v The Chief Constable of Strathclyde Police (unreported), Dunoon Sheriff Court, 14 August 2001 (a decision of a single sheriff at Dunoon) the appellant, who lived in a remote part of Argyll, left a shotgun which he had been cleaning out to dry on a radiator covered by a newspaper and found next morning that it had been stolen by a housebreaker while he had been out during the evening. The sheriff viewed the appellant as contrite and genuinely sorry and as having in addition a proper appreciation of his responsibilities as a certificate holder: his firearm and shotgun certificates were restored and the appeal granted. In Craw v The Chief Constable of Strathclyde Police (unreported), Hamilton Sheriff Court, 25 October 2001 (a decision of a single sheriff at Hamilton) the appellant had a shotgun stolen from his house by his grandson who came to visit him when he had left it in an unlocked cupboard: he noticed its absence two days later. The sheriff was concerned by the appellant's attitude and failure to accept the gravity of the situation which left him unconvinced that there would not be a repetition and the grandson was a known criminal and drug user. The appeal was refused in respect both of a firearm certificate and a shotgun certificate on the same ground, namely danger to the peace or public safety. In Shepherd v The Chief Constable of Devon & Cornwall (unreported), 19 July 2002 (a decision on appeal of a single judge in the Administrative Court of the English High Court) the appellant was the holder of a firearm and a shotgun certificate but had in his possession two pistols not covered by the certificates: these however were well concealed within his house. It was held that the appellant was unfitted to be entrusted with a firearm since he was unreliable as a custodian and incapable of being entrusted to comply with the terms of the licence but that there was no evidence in the case of any risk to public safety or to the peace given that the appellant had no propensity toward anger or violence and was not at risk of misusing the guns. The revocation of the firearm certificate was accordingly upheld but that of the shotgun certificate was discharged since there was no evidence on which the conclusion could be reached that there was a risk of danger to the public safety or to the peace by virtue of the facts found against the appellant.
From these decisions I make a number of deductions as to the currently prevailing treatment by the courts of the statutory test laid down in section 30C(1) and its application (namely that the certificate holder cannot be permitted to possess a shotgun without danger to the public safety or to the peace). In the first place it is clear that attention requires to be focussed at all times on the risk of danger arising out of the certificate holder's possession and use or misuse of a shotgun and not on danger likely to arise for any other reason. Secondly the conclusion that there exists a risk of danger to the public safety or to the peace from that possession has to be based on a sufficiency of pertinent evidence to that effect in the case as heard at appeal by the sheriff or as presented to the chief constable. Thirdly, with regard to the ingredients of the necessary evidence, proof of previous violent propensities is not an essential but its presence will be a factor of importance. Similarly previous conduct involving misuse of a gun is not an essential feature but revocations seem to have been upheld (with one exception in the case of Thomson) only where there has been either such misuse or irresponsible conduct in driving a car under the influence of drink. A single aberration with a gun may not satisfy the test for revocation if the court can be sufficiently assured that a repetition is unlikely; a risk of repetition however points strongly toward revocation. Aggressive conduct without involvement of a gun is not a pointer by itself to the existence of the danger necessary to justify revocation and a conviction of offence(s) not involving a risk or likelihood of the use or misuse of a shotgun is not a proper ground for revocation of a certificate. The presence or absence of a shotgun in any prior misconduct is a matter whose importance it is for the sheriff to weigh.
Against this background I can indicate my views on certain preliminary matters before coming to the sheriff's judgement itself. As to the nature of an appeal by way of summary application to the sheriff, it was not in dispute before me that the sheriff in the present case had correctly approached the appeal to him under section 44 of the 1968 Act as one which required him to make his own decision on revocation or otherwise on the basis of the material laid before him by the parties in the appeal and in which the decision of ACC Papworth (who gave evidence as to how he had reached it) was merely one factor to which he could attach such weight as he thought fit but whose inherent correctness or incorrectness he was not intended by Parliament to assess. This incidentally could give rise to an interesting question, perhaps for determination in another case if raised but which was not made an issue in the present case, as to whether or not it is open to a sheriff in such an appeal to decide that a certificate should be revoked on a ground contained in section 30A or section 30C of the Act other than that upon which the chief constable has proceeded if the sheriff holds on the evidence before him that such other ground is made out. Something in such a circumstance would of course depend on the position adopted by the parties in their pleadings in the summary application presented to the sheriff. The sheriff in the present case applied his mind to the same tests as those applied in the letter dated 18 January 2000 by ACC Papworth, as the pleadings required him to do. That being the nature of an appeal to the sheriff in modern conditions I am not in doubt that a sheriff is fully entitled to take account of the demeanour of an appellant in the witness box at an appeal and of the impression made on him by the appellant as a person (whether or not there be other evidence available bearing on the appellant's character from psychologists or the like), as the sheriff did in the present case and as several other sheriffs seem to have done in their decisions to which I was referred which are listed above. I am therefore unimpressed by counsel for the appellant's submission that the sheriff here acted inappropriately in founding his judgement substantially on his own assessment of the appellant as an individual when there existed expert evidence in the case from psychologists. On the contrary I consider the sheriff to have been entitled to form an adverse impression of the appellant if he saw fit and to apply that impression in reaching his decision. I too am bound to accept the sheriff's adverse impression as the correct one in the appeal to me and I proceed therefore in what follows on the view that the appellant is to be regarded as generally untrustworthy and a somewhat unsavoury character. Nor am I willing to accept counsel for the appellant's submission as to the importance of violence or a propensity for violence as an ingredient in the "danger test" laid down by section 30C(1). He did not I think go so far as to say that violence was an essential ingredient in the test or that the evidence had to establish a clear risk of violence in the appellant's conduct with a shotgun but his submission at some points came close to that and he reminded me several times that Professor Cooke had assessed the appellant (at page 9 of his report) as "representing a low risk of future violence" which he said negated the conclusion reached by the sheriff that the appellant's continued possession of a shotgun represented a potential danger to the public safety and to the peace. I took this to be in effect an invitation to me to reassess the weight to be attached to this factor among the others bearing upon the sheriff's decision and thus reach a conclusion different from him by re-evaluating the evidence, which is an exercise not open to me unless I am first satisfied that the sheriff has fallen into some significant error of law. More fundamentally the solicitor for the respondent made a submission with which I do not agree to the effect that the present appeal was really a disguised attack on the sheriff's exercise of his discretion and should accordingly be refused. That however is not how I view the position which was I think correctly set out by counsel for the appellant. The wording of section 30C(1) indicates a two-stage process whereby one of the two tests ("prohibition" or "danger") must first be satisfied before the chief constable or sheriff goes on to consider secondly whether in his discretion to revoke the certificate. Counsel offered no challenge to the correctness of the sheriff's exercise of his discretion in the second stage if that stage were reached. First however one of the two grounds of revocation set forth in the subsection must be established and that to my mind is not an exercise of discretion but a matter of legal judgement in deciding whether or not the test, or one of the tests, is satisfied on the available evidence. It was in carrying out this first exercise that counsel maintained the sheriff had fallen into error of law and in particular that the sheriff had no proper or sufficient evidential basis for holding the second ground of revocation (danger to the public safety or to the peace) to be established. In this approach to the matter I agree with counsel: the question in the present appeal is whether or not the sheriff had a sufficient basis in the evidence available to him for the conclusion reached by him when the "danger test" in section 30C(1) is applied to the facts. Another way of putting the same question is to ask whether the sheriff correctly understood the test which had to be applied to the available evidence so as to yield the result arrived at by him. Either way the question is or raises a point of law (as is required by paragraph 4 of part III of schedule 5 to the 1968 Act as amended) and is not merely a question as to whether or not the sheriff has correctly exercised his discretion.
The sheriff in his judgement has set out no fewer than seventy-four findings-in-fact and two findings-in-fact-and-law. As already indicated the second of these findings-in-fact-and-law is under attack in this appeal but the first is not challenged. The sheriff has appended to his interlocutor a note of twenty-four pages in which after a brief introduction he summarises the evidence of the witnesses heard by him (between pages 14 and 24). These comprised two shooting friends or acquaintances of the appellant and a psychologist by name of McAllister whose evidence the sheriff discounted as having been founded on incorrect information supplied to the witness; also the appellant himself, ACC Papworth himself and another psychologist entitled Professor Cooke. After briefly summarising certain submissions made to him for either side he then sets forth (at page 25) the applicable statutory provisions and proceeds to a discussion of the actings in 1999 and evidence in 2002 of the appellant and what is to be deduced therefrom in respect of the appellant's sexual proclivities and his character, especially his trustworthiness, in light of the appellant's own demeanour and the expert opinion evidence of Professor Cooke. It is clear that the sheriff formed an adverse view of the appellant as to his character and trustworthiness and also deduced that, being "in denial", he is likely at some point in the future to pursue his sexual interest in young girls by some form of activity which might be criminal (while acknowledging that his only conviction thus far has been one for breach of the peace involving conduct at the lower end of the range of criminally sexual activity). To this assessment of the appellant the sheriff was fully entitled if he thought fit and I am not in a position to gainsay it or to do anything other than simply accept it in its terms. The sheriff then returns (at page 29 in the third paragraph) to a consideration of the statutory provisions applicable to revocation of a firearm certificate and those applicable to revocation of a shotgun certificate respectively and it is clear, notably from his remarks at page 30, that the sheriff has correctly recognised (unlike some of the other people mentioned by him on that page of his note) the existence of a distinction between the test to be applied under section 30A(2)(a) in respect of a firearm certificate ("unfitted to be entrusted") and that to be applied under section 30C(1) in respect of a shotgun certificate ("cannot be permitted to possess without danger to the public safety or to the peace"). This recognition leads him, again correctly as seen at pages 31 and 32, to a separate consideration of each of the two grounds of revocation and the application to each of the available evidence to determine whether or not each test is satisfied on that evidence so that the relative ground of revocation can be held established. The distinction and separate consideration is reflected in his two findings-in-fact-and-law at page 12 of the judgement. So far as the firearm certificate is concerned the sheriff has little difficulty in deciding that the appellant is unfitted to be entrusted with a firearm, viewing him as a person who is not to be trusted because of his abnormal sexual interest in young girls and his attitude to that interest, which the sheriff takes to be indicative of some serious breakdown in his behavioural control and as distorting seriously his reasoning. I have no real doubt that this conclusion has been correctly arrived at by the sheriff even although no argument was presented to me in connection with it: and equally I take the correctness of it to be recognised by the appellant's withdrawal of his appeal originally marked against it. With regard however to the shotgun certificate, whose revocation is the subject of the present appeal, the sheriff has found much greater difficulty and has set forth his thinking on the matter at greater length over four pages at pages 32 to 35 inclusive. In this passage of his judgement he addresses the question whether the appellant's behaviour is indicative of some "wider potential behavioural breakdown" than one confined to his sexual proclivities. He quotes with approval two passages from Sheriff Principal Nicholson's judgement in the case of Evans v The Chief Constable of Central Scotland Police (supra), one referring to the case of Luke v Little (supra), and declares that he cannot be confident about the appellant's future conduct, noting "evidence of an arrogance and disdain for authority where it conflicts with his wishes" due to his general character and the serious distortion of his reasoning because of his untreated abnormal sexual interest. He says that he has serious misgivings about the appellant's character and then, under reference again to the case of Evans, states his opinion to be that the appellant's loss of control which caused his criminal activity supports the view that the appellant may lose control in the use of his shotgun. He then lists four factors connected with the appellant's character, sexual proclivities and lack of judgement which incline or lead him to think that the appellant "has the potential for being a danger to the public or to the peace in various ways including as holder of a shotgun certificate" and concludes that he is satisfied that the test is met and the ground of revocation established. He adds that the case is not marginal and that the evidence before him, whereon his decision is based, differs materially from that which was available to ACC Papworth. Having refused the appeal to him the sheriff comments on two further matters, one of which is the question whether or not it is proper to brand the appellant "a paedophile", and states his view in this connection to be that the appellant does not fall into that category at least as understood by the meaning ascribed to "paedophile" in common parlance, even although Professor Cooke had defined the appellant as such in terms of the current medical clinical definition (see findings-in-fact fifty-one and fifty-three). Quite why the sheriff elected to include this comment is not entirely clear to me, unless it was designed to assuage in some way the appellant's feelings: for myself I am not in doubt that it is the medical definition which matters for present purposes and if Professor Cooke was prepared so to describe him by that definition then that is how he must be regarded in this appeal.
For the purposes of the present appeal the important parts of the sheriff's judgement which require to be examined are (a) the last few findings-in-fact set out at pages 11 and 12 of the judgement, (b) the evidence of Professor Cooke summarised by the sheriff at pages 22 to 24 and (c) the sheriff's own exposition of his thinking in his note at pages 32 to 35. These elements have to be looked at in the context of the judgement as a whole in order to understand the process whereby the sheriff has made the transition from finding the appellant to be unreliable or untrustworthy in respect of his sexual proclivities to his conclusion that the appellant's possession of a shotgun is to be viewed as a source of danger to the public safety or to the peace and then to consider whether or not a legitimate basis exists in the case for that transition.
In his findings-in-fact leading up to the seventieth finding-in-fact the sheriff has made a number of findings about the appellant's evidence relative to his activities in making video recordings of girls in a clandestine manner on 2 and 3 August 1999. The tenor of these findings is adverse to the appellant. In the seventieth finding-in-fact the sheriff finds the appellant's evidence to have betrayed an arrogance or disdain for authority where in conflict with his wishes and in the seventy-first finding-in-fact he finds the manipulative and untrustworthy nature of the appellant's attitude to the events of 2 and 3 August 1999 to be such that his word cannot be trusted or relied upon by the sheriff. Thus far the sheriff appears to be making findings related to the appellant's sexual proclivities. In his seventy-second finding-in-fact however the sheriff moves beyond this field to find that the appellant's conduct with the video camera in August 1999 and his attitudes thereto later revealed mean that "he cannot be trusted to obey society's rules" in other (unspecified) areas too. The seventy-third finding-in-fact seems to deal again with the appellant's abnormal sexual interest and not expressly to go beyond, finding that the appellant is "in denial" and so likely to indulge in some further activity (perhaps criminal) in relation to that interest and also that he has a flawed and distorted judgement on account of it. Then in his seventy-fourth and final finding-in-fact the sheriff finds the appellant to be "in the circumstances" potentially dangerous to the public safety and to the peace "in various ways including as the holder or possessor of a shotgun". For an explanation of how this transition is effected one has to look to the sheriff's appended note.
The case against the appellant and restoration of his revoked shotgun certificate (ie leaving out of account those elements favourable to his position, to which the sheriff gave certain weight as it was his business to do) taken at its highest can I think be conveniently summarised as follows. The appellant is by the medical definition a paedophile in denial who is likely to repeat his paedophiliac activities in some way in the future. In August 1999 he used a video camera to take clandestine pictures of juvenile girls changing their clothes at an agricultural show or playing on a beach in a manner described by the sheriff as pornographic. In respect of these actings he pled guilty to a breach of the peace in relation to which after a period of deferral of sentence for good behaviour he was granted an absolute discharge. He thus offends knowingly against social rules in an area of serious concern to society as a whole. The sheriff found him in evidence to be lacking in candour in his attitude to these matters. The sheriff also found his pursuit of his abnormal sexual interest to have distorted his judgement and reasoning in relation to such matters and perhaps more widely. He found him to have a disdain for authority where it conflicts with his wishes. He also found him to be generally untrustworthy and so not in the sheriff's view trustworthy in respect of guns or anything else. He considered the appellant to be manipulative and the sheriff had serious misgivings about his character so that he could not be confident about the appellant's future conduct. Clearly the sheriff found such factors as were present favouring the appellant's position to be outweighed by these considerations and it is not for the sheriff principal to reassess the weight to be attached to the various factors. The question remains for determination in this appeal however whether the case against the appellant summarised immediately above can afford a sufficient legal basis for the ultimate conclusion of the sheriff that the appellant's possession of a shotgun constitutes a source of potential danger to the public safety or to the peace.
The sheriff in his note at pages 32 to 35 deals with the shotgun certificate separately from the firearm certificate. Although in the first paragraph under the heading "shotgun certificate" at page 32 the correct question is posed for the relevant test under section 30C(1), it is apparent by the time one reaches the conclusion in the fourth paragraph at page 35 (expressing satisfaction that the appellant does not meet the test) that the sheriff's line of reasoning is based very much on his reservations concerning the trustworthiness of the appellant and the reliability of his character. That immediately raises the question whether the test, whose central theme appears to be danger (unlike the firearm test under section 30A(2)(a) which has a central theme apparently of trust), is being correctly applied. It is I think not difficult to see how a general untrustworthiness in the appellant, as found by the sheriff, must unfit him to be entrusted with a weapon so potent as a firearm such as a rifle, pistol or the like. The concept of trust is central to that test and any material shortfall in the general trustworthiness of the firearm certificate holder must call in question his suitability to continue to hold that type of certificate. The evidence as a whole in the present case appears to me to afford an entirely adequate basis for holding that ground for revocation of the appellant's firearm certificate established. The test in section 30C(1), now repeated in section 30A(2)(b), has however the concept of danger at its centre and while trustworthiness may not be entirely irrelevant to it (contrary to the submission of counsel for the appellant) its role is derivative only. A man who is dangerous with a shotgun (also a potentially lethal weapon but of lesser potency) is no doubt untrustworthy to that extent; but it does not follow conversely that a man who is untrustworthy in other respects will necessarily be dangerous with a shotgun. In applying the test in section 30C(1) it is the prospect of potential danger that must be looked to primarily. The transition effected by the sheriff from his finding the appellant to be untrustworthy in respect of his sexual proclivities to the conclusion that his possession of a shotgun is potentially a danger to public safety or the peace depends ultimately on what he says in the third paragraph at page 35 of his note. On the previous three pages the sheriff says many things to which no exception can be taken as he approaches the problem and in the two immediately preceding paragraphs he speaks in general terms of his lack of confidence in the appellant's future conduct, evidence which he detects of an arrogance and disdain for authority and his serious misgivings about the appellant's character. He mentions a serious distortion of the appellant's reasoning due to his untreated abnormal sexual interest. The sheriff understands however that all this requires to be related somehow to the appellant's possession of a shotgun and the idea that such possession may give rise to some danger to public safety or the peace. In the third paragraph at page 35 he speaks of a loss of control on the appellant's part which has occurred in his videotaping of the girls (a view of that matter to which I take no exception) and connects that notion to a potential loss of control in his use of a shotgun, treating the former as supportive of the latter. He does so under reference to an example quoted in the case of Evans (mentioned two pages earlier) and I take this to be a reference to Sheriff Principal Nicholson's brief commentary in Evans on the case of Luke v Little (supra) where the learned sheriff principal saw no ground to challenge the supportive connection found by the chief constable and sheriff in that case between grossly irresponsible behaviour with a motor vehicle (by driving it under the influence of drink) and a risk of irresponsibility in the use of a shotgun. The sheriff here describes the connection made by him between loss of control in videotaping girls and potential loss of control in use of a shotgun as an "echo" of that example and appears to view the two sets of circumstances as analogous but in so doing he fails in my view to comprehend what must have been the true rationale underlying the connections made by the sheriffs in Luke v Little (supra) and the later case of Lubbock v The Chief Constable of Lothian & Borders Police (supra), which effectively followed Luke albeit there was only one drink-driving conviction instead of three. Although not expressly stated in these terms in those decisions the sheriffs involved must surely have been making a connection between irresponsibility in the use of one potentially lethal instrument (a motor car) and another (a gun). That I find an entirely understandable connection and a legitimate one too because it is a connection based on reasonable inference. In the present case there is in my view no such legitimate or understandable connection apparent between ill-controlled use of a video camera and ill-controlled use of a shotgun and certainly not one such as to give rise to a reasonable apprehension of danger to public safety or the peace with the latter instrument - at least not as a matter of pure inference in the absence of evidence to that effect (see below). A video camera, even used in a clandestine manner to photograph girls in a state of incomplete dress, cannot properly be described as a potentially lethal instrument in any way comparable to a motor vehicle driven by a person under the influence of drink however unsavoury the person so using the video camera may be shown to be thereby.
The sheriff goes on in his third paragraph on page 35 of his note to list four considerations from which he deduces that the appellant is potentially dangerous to the public or the peace "in various ways including as holder of a shotgun certificate". The four considerations however have nothing obvious to do with guns or any type of potentially lethal instrument but are each derived instead from the sheriff's findings in connection with the appellant's sexual proclivities and his subsequent responses to being questioned about them. The phrase "in various ways" is entirely inspecific and I see no warrant for the drawing of an inference from any one of the four considerations listed or even from all four taken together that the appellant is to be viewed as potentially dangerous to the public or the peace as the holder of a shotgun certificate.
The difficulty which I have with the aforementioned transition effected by the sheriff and the connection he has made between loss of control with a video camera photographing girls and loss of control with a shotgun is that in the absence of pertinent evidence (which is the next question: see below) his line of reasoning amounts to no more than surmisal on his part at best. I am hesitant to label it mere speculation (although that is a possible description) but it cannot in my view be thought of as a matter of common sense and it certainly does not fall within judicial knowledge. Nor can it in my opinion be regarded, as explained above, as the product of reasonable inference. Such a connection as this cannot be established in judicial proceedings merely by a process of inductive reasoning such as that followed by the sheriff in his note: it requires instead in my opinion pertinent evidence laid before and accepted by the court which either declares there to be such a connection unequivocally or at least furnishes material from which the necessary deduction can be made by reasonable inference. In a case such as this to establish a connection between loss of control with a video camera directed at girls and potential loss of control with a shotgun there would I think have to be expert evidence from such a person as a psychologist or psychiatrist and the next question therefore is whether or not such evidence exists sufficiently in this case.
The evidence of Professor Cooke would really be the only source in the present case of pertinent expert evidence of the required nature. The expert evidence of Mr McAllister was largely discounted by the sheriff on the footing that he had been given wrong information and his evidence does not in any event attempt to broach the matter of a supposed connection between loss of control on 2 and 3 August 1999 and potential loss of control with a shotgun. The evidence of Professor Cooke has been summarised by the sheriff at pages 22 to 24 of his note and is also set out in his report to which he spoke dated 12 April 2001. The closest it comes to dealing with the connection between the losses of control which the sheriff has found established is the passage in the final paragraph of the report at pages 10 and 11 (quoted by the sheriff at page 23 of his note) where the professor states that in his opinion the incidents of 2 and 3 August 1999 and his behaviour then in videotaping young girls for sexual reasons have "some relevance to the issue of" or "should have some bearing on" whether the appellant should be "entrusted with a shotgun". His said behaviour indicates in the professor's view a lack of judgement in relation to social rules and a willingness to break social rules by invading the privacy of his victims. It is not said what the relevance or bearing exactly is and the matter was not, so far as the sheriff's summary goes in his note, expanded on in evidence at the hearing before the sheriff. These expressions of opinion fall far short in my view of express or unequivocal evidence to the effect that a person afflicted by the nature and degree of sexual deviance found in the appellant is likely to present a danger to the public or the peace with a shotgun or to the effect that a person who loses control in his use of a video camera by photographing young girls is likely to lose control in his use of a shotgun, nor do they go far enough to admit of an inference to that effect. The professor's evidence therefore does not on its own terms come up to the level required to support the conclusion arrived at by the sheriff. Even if it came up to that level however or were to be interpreted as so doing it would in my opinion be a dubious or suspect basis on which to proceed being founded in part at least or even largely on a misunderstanding of the issue to be addressed engendered by confusion derived from a flawed judgement in the case of Thomson v The Chief Constable of Grampian Police (supra) to which the learned professor was apparently referred by the respondent's solicitor when preparing his report dated 12 April 2001. This is narrated by the sheriff in the second paragraph at page 23 of his note, reflecting the final paragraph at the foot of page 9 of the professor's report, and it appears from the sheriff's narration that it was in light of the report in the Thomson case that the professor proceeded to consider the appellant's suitability as a certificate holder. The phrase "entrusted with a shotgun" employed by the professor at pages 9, 10 and 11 of his report appears to have been derived from the judgement in that case but in my opinion mistakenly and confusingly so.
In Thomson a sheriff at Aberdeen decided, as earlier mentioned above, after hearing evidence that a certificate holder who had behaved menacingly and abusively over some months towards his estranged wife and a man with whom she had commenced a new relationship, to the alarm of them both (although no prosecution had followed), should not succeed in an appeal against revocation of his firearm and shotgun certificates which he had held for over forty years. There had been a number of incidents but it is apparent from the sheriff's findings-in-fact that none of them had involved guns, there was no evidence that the appellant had ever threatened use of a gun against anyone and such medical evidence as was available negated the idea that the appellant was a source of danger to others in respect of firearms. The important findings-in-fact in the case appear to me to be the seventh, eighth, ninth, twelfth and thirteenth findings-in-fact. The sheriff proceeded to make two findings-in-law, the first of which portrays a manifest confusion of thought on the sheriff's part and was in the following terms: "The appellant is unfitted to be entrusted with a firearm or a shotgun.", from which the conclusion is inescapable that the sheriff has taken the test in section 30A(2)(a) applicable to firearms and applied it also to the appellant's shotgun(s) to which section 30C(1) does not apply that "unfitted to be entrusted" test. The second finding-in-law declared the appellant's possession of firearms or shotguns to be no longer permissible without danger to public safety or to the peace, thus applying to firearms the test in section 30A(2)(b) and to shotguns the test in section 30C(1). There was thus in the second finding-in-law at least no error of statutory interpretation, although whether there was a sufficiency of evidence for that finding is perhaps doubtful. In her appended note the sheriff summarises the evidence and submissions, states her opinion as to credibility and reliability on the facts, summarises correctly the law as to the nature of the appeal in hand and sets out the statutory provisions in sections 30A and 30C relative to the revocation of certificates before coming to a longer penultimate paragraph in which she sets out the rationale of her decision. Near the start of that paragraph she makes two statements about (a) the clear aim of the legislation and (b) the dangers inherent in the mere possession of weapons to which it is difficult to take exception. Thereafter however confusion enters in. The sheriff concentrates for some reason on the section (section 27 of the Act as amended) which governs the grant of a firearm certificate and sets forth the criteria for such a grant, which appears to lead her in the remainder of the paragraph (until the penultimate sentence) to focus her attention on the concept of trust. She expresses a view that the use of the word "entrusted" emphasises the special position in which the possessor of firearms is put and then declares (in the passage picked up by Professor Cooke in his report) that "It is not necessary that he be a paragon of virtue but the phraseology in my view embodies a requirement that his behaviour be such as to both reflect and merit the element of trust involved in the permission given to hold weapons." She states that the appellant's behaviour has been too unrestrained and lacking in judgement to satisfy her that he would be a person "fit to be entrusted" with the possession of weapons. She then adds a single-sentence reference to the other statutory test by saying that she is not satisfied that there would be no danger to public safety or to the peace if the appellant were allowed to retrieve the guns which he put away (into the care of other persons for safe-keeping when he discovered that the police intended to remove them: see the tenth finding-in-fact). In all of this the words "firearms", "weapons" and "guns" appear to be used generally and interchangeably by the sheriff and the concepts of trust and danger seem to be applied indiscriminately to all of them. No attempt is made to distinguish between a firearm and a shotgun or to differentiate between the separate statutory criteria laid down for the grant and revocation of certificates permitting the possession of each. At best it appears that the sheriff in Thomson confused or even conflated the statutory tests set out in separate sections of the act; or at worst that she was oblivious of the separate definitions for certification purposes laid down for "firearm" and "shotgun" in the first two sections of the 1968 Act both as originally enacted and also after amendment. There is moreover no hint at any point of an attempt to consider or apply the true test prescribed by the other authorities to which I was referred and have mentioned above for the revocation of a shotgun certificate, namely that the perceived danger must arise out of the certificate holder's possession of a shotgun or (in the words of Sheriff Principal Nicholson in Evans v The Chief Constable of Lothian & Borders) that "the relevance of past conduct is to be assessed in terms ... of whether there is a risk of future misconduct involving the use or threatened use of a shotgun". There seems to have been no evidence in the case of any irresponsible use of a potentially lethal instrument and for that reason it appears to me that the case of Thomson contained insufficient evidence to support the sheriff's second finding-in-law and insufficient evidence to establish the ground of revocation laid down by section 30C(1) in respect of danger. In addition I have reservations about the manner in which the sheriff seems to have required the court to be satisfied that the appellant would be fit to be entrusted with possession of weapons or to be satisfied that there would be no danger to public safety or to the peace when the statutory expression of each ground of revocation in sections 30A and 30C appears to require the opposite to be established. This questionable approach may have been a product of the sheriff's concentration earlier on section 27 of the Act governing the grant rather than revocation of a firearm certificate. Overall I take the view that the sheriff's judgement in the Thomson case is to any reader not legally qualified misleading as a guide to the legal position on revocation of shotgun certificates and further that the case was wrongly decided at least so far as the shotgun certificate of the appellant therein was concerned. The decision was not however so far as I am aware appealed to any higher court.
For some reason the decision in the Thomson case was made available apparently to Professor Cooke by the solicitor for the respondent prior to completion of the professor's report. Why this was done I am not sure and I was not given any reason for it at the hearing of the appeal to me. In any event it was in my opinion as matters have turned out a mistake. It must always I think be doubtful whether it is wise to place a legal judgement, save perhaps one emanating from a court at the highest level, before an expert (or any other) witness who is not himself a lawyer lest it infect the true integrity of his own professional opinion in his own field. He is not likely to know what legal niceties may have influenced or had a bearing on the decision so as to be able to fully comprehend its significance and he is even less likely to be able to discern flaws in it or to see that it was mistaken, as this one was. The sheriff in the present case narrates at page 30 of his note that the professor "was referred to the case of Thomson and in light of what was said by [the sheriff there] his view was that the appellant's conduct was a relevant consideration", which would seem to be a correct interpretation of the professor's report. Regrettably however the professor has in my view been misled, entirely unwittingly and without fault on his part, by the sheriff's judgement in Thomson into a misunderstanding of the issue requiring to be addressed at least so far as the shotgun certificate is concerned. Although the professor's report sets out in its first paragraph to "assess [the appellant's] fitness to possess firearms and shotguns", the professor for some reason by the time the last paragraph on page 9 is reached is concerning himself with shotguns and the phrase "entrusted with a shotgun" is used three times from there until the end of the report. It is in the context of being "entrusted with a shotgun" that the professor suggests that the appellant's sexual deviance has some relevance or should have a bearing and that phrase "entrusted with a shotgun" has clearly been derived by the professor from the judgement in the case of Thomson, as can be seen from the professor's last paragraph at page 9 of his report. He quotes there the sheriff's sentence about the requirement that a certificate holder's behaviour should reflect and merit the trust involved in permission to hold weapons, in which the final word "weapons" is used without any distinction between firearms and shotguns. The test however under section 30C(1) is not about fitness to be entrusted with a shotgun but about whether danger will arise to the public safety or to the peace out of the certificate holder's possession of a shotgun. The professor has in effect been misdirected into applying the test from section 30A(2)(a) for revocation of a firearm certificate to his consideration of the appellant's position in relation to a shotgun certificate. At page 23 of the sheriff's note in the fourth paragraph we see the sheriff recording how the professor in evidence before him indicated that in the absence of a high risk of future violence other factors such as the appellant's judgement and trustworthiness had to be looked at. But we still do not know to what test the professor's mind was being directed when he gave this evidence and even if trustworthiness is not entirely irrelevant to the test under section 30C(1) it certainly is not central to it and we cannot tell what would have been the professor's evidence had he been clearly directed to consider the question whether the appellant's possession of a shotgun would be likely to give rise to a danger to the public safety or to the peace, especially considering that he had already formed the opinion that the appellant represents a low risk of future violence. I therefore consider that, for all the sheriff's faith in his worth as a witness of repute and experience, the professor's evidence relative to the appellant's continuance as a shotgun certificate holder cannot be relied upon because it proceeds on a misguided view, instilled in him from the case of Thomson, as to the proper issue requiring to be addressed in that regard.
ACC Papworth in his letter of 18 January 2000 to the appellant (see findings-in-fact 38 and 39) maintained the distinction between the test under section 30A(2)(a) and that under section 30C(1), although he did not there require to give detailed reasons for his decision beyond referring to the conviction of breach of the peace and its circumstances. In evidence before the sheriff he seems to have adopted a slightly different posture, assuming the accuracy of the sheriff's summary in the paragraph at the foot of page 21 and top of page 22 of his note. He seems to have spoken in evidence to applying the congruent tests under sections 30A(2)(b) and 30C(1) but to have regarded them as satisfied by his lack of trust in the appellant engendered by his paedophiliac activity. This approach has perhaps the commendable virtue of simplicity and in the post-Dunblane era I do not think that a chief constable or assistant chief constable can be blamed for proceeding with caution in these matters but it is in my view too simplistic an approach when the import of the statutory provisions is properly considered. It appears to me that ACC Papworth fell into the same error of confusing, equiparating or conflating into a single test the various tests which he was required to consider and apply under the statute. The sheriff's decision in Thomson v The Chief Constable of Grampian Police post-dated Assistant Chief Constable Papworth's decision but like her and like Professor Cooke (in consequence of Thomson) he seems to have thought that lack of trust in general terms was a sufficient basis for holding the appellant's possession of a shotgun (or of a firearm) to be a source of danger to the public safety or to the peace. It is however danger not mere lack of trust which has to be established in order for the test to be met, danger being the central consideration and trust a peripheral or derivative matter only. The establishment of a danger arising out of the possession of a shotgun requires in my opinion clearer and more specific evidence of past misconduct with a potentially lethal instrument and evidence merely of misconduct in another sphere or of untrustworthiness in that other sphere or even generally is not sufficient to meet the test under section 30C(1). In this respect the three persons mentioned proceeded under error of law.
It would no doubt be convenient for those who have to decide these matters (whether chief constables or the courts) to be able to say that paedophiles cannot be allowed to have guns or that anyone convicted of a public order offence (such as a breach of the peace) cannot have a gun or that persons found or thought to be untrustworthy should be prevented from having guns in their possession. The law however does not say these things, not even after the amendments to the 1968 Act introduced in 1997 following upon Dunblane. It says something like the last of those propositions for the most dangerous types of weapon (firearms other than shotguns or airguns) because by section 30A a person who is thought to be "unfitted to be entrusted with a firearm" can be deprived of his firearm certificate. That is to my mind not a very high test and it may well be met by a finding of general untrustworthiness in a person, which may be thought appropriate when regard is had to the potentially very dangerous nature of that category of weapon. So far however as shotguns are concerned a higher test is imposed for revocation of a certificate, namely satisfaction that danger will arise from possession of the shotgun to the public safety or to the peace. It cannot be maintained that this test in section 30C(1) is one and the same in effect with the "unfitted to be entrusted" test of section 30A(2)(a) when regard is had to the fact that the same "danger" test has been juxtaposed by Parliament to that other test in section 30A(2)(b) for revocation of a firearm certificate. That juxtaposition indicates that it must be intended to mean something different and cannot be held satisfied or not by reference merely or primarily to a concept of trust. Satisfaction of the test in section 30C(1) cannot therefore depend simply on untrustworthiness and instead requires proof in my opinion of probable danger by reference to misconduct with a gun or other potentially lethal instrument.
The sheriff in the present case has, it seems clear, formed the view that it would be preferable for the appellant to have possession neither of firearms nor of shotguns. I am willing to say that I share that feeling for what it may be worth. I also accept without reservation, as I am bound to do, the sheriff's view of the appellant as a generally unpleasant person. These however are not the applicable legal tests laid down by the 1968 Act even as amended. This it appears was recognised by the sheriff who also recognised, unlike the three persons mentioned above, that the test for revocation of a shotgun certificate under section 30C(1) is not the same as that for revocation of a firearm certificate under section 30A(2)(a) and that something more or certainly something different is required for that ground of revocation of a shotgun certificate to be held established. At page 30 of his note the sheriff observes that it is not one of the conditions for revocation of a shotgun certificate that the appellant is no longer fit to be entrusted with a shotgun and that, while the tests for revocation of a firearm certificate include a reference to trust, those involving a shotgun certificate do not. Nevertheless he considered the trustworthiness of the appellant to be "a factor under consideration" and sought, as I interpret the succeeding pages of his note, to build on that factor a structure sufficient to hold the ground of revocation in section 30C(1) established by a process of his own reasoning founded on the only available evidence in the case concerning the appellant's sexual proclivities and related activities and the appellant's untrustworthiness as observed by the sheriff in the witness box. This evidence was sufficient to hold the ground established of "unfitness to be entrusted" under section 30A(2)(a) for revocation of the firearm certificate but the sheriff knew that more was required to establish danger to the public safety or to the peace if the ground under section 30C(1) to revoke the shotgun certificate were to be upheld. His process of reasoning therefore sought to carry the case beyond untrustworthiness as a paedophile through general untrustworthiness to danger with a shotgun by making a connection between loss of control with a video camera for sexual purposes and potential loss of control with a shotgun. This last transition or connection however required to be based in my opinion on pertinent evidence in the case which was lacking (and in particular was not supplied by the evidence of Professor Cooke) as discussed above and so the sheriff despite valiant efforts failed in my view in the endeavour to find a proper basis for holding the ground of revocation under section 30C(1) established on the same evidence as that used to establish the earlier ground of revocation under section 30A(2)(a). In effect the sheriff fell in the end into the trap into which the three others had unwittingly fallen even although he, unlike them, had recognised its existence and sought consciously to avoid it, namely the error of conflating or equiparating or at least confusing the two distinct tests (in section 30A(2)(a) for revocation of a firearm certificate and in section 30C(1) for revocation of a shotgun certificate) by wrongly treating each as having the concept of trust at its centre. This was on one view an error of law based on a mistaken construction of the statutory provisions. An alternative way of viewing the matter is to say that the sheriff, although recognising the distinction between the two tests, failed in the end to recognise that his method of holding the latter ground to be established in addition to the former required further evidence which the case heard by him did not contain and thus he erred in law. Whichever view is taken the consequence has to be that the sheriff's decision to dismiss the appeal against revocation of the shotgun certificate is legally flawed.
In the result I take the view that there is in the present case insufficient evidence to justify the conclusion that the appellant is likely to lose control in the use of his shotgun and that accordingly, there being no evidence of any misconduct by the appellant with a gun or any other potentially lethal instrument, there is no sufficient evidence to support the sheriff's second finding-in-fact-and-law at page 12 of his judgement which erroneously holds the ground of revocation in section 30C(1) established as a matter of fact and law. That being the nature of the error of law which has occurred the question cannot arise of the sheriff principal making his own assessment of the case and substituting his own decision because any conclusion in favour of a revocation of the appellant's shotgun certificate on the "danger" ground contained in section 30C(1) would be similarly affected by the same insufficiency of evidence. The only correct conclusion has to be that revocation of the shotgun certificate cannot be justified on the available evidence. The sheriff's interlocutor will therefore have to be recalled so far as the shotgun certificate is concerned and the chief constable instructed to withdraw his revocation thereof and his letter of 18 January 2000 to that extent.
I think it appropriate to add in the particular circumstances of this case that throughout my hearing and consideration of the appeal there has been ever-present to my mind the spectre of the shootings at Dunblane on 13 March 1996. Whether it was similarly present to the minds of ACC Papworth or of the sheriff I have not been told and do not know. It is perhaps difficult to believe that it was not. The circumstances of the present case bear a closer superficial similarity to the situation surrounding Thomas Hamilton than do the circumstances of any of the other cases to which I was referred and have summarised above. During the course of hearing the appeal I raised with parties' legal representatives the question whether either of them wished to say anything to me about any possible relevance which the events at Dunblane might have to the circumstances of the present case: each expressly eschewed any desire or intention to discuss the matter of Dunblane or to found any submissions upon anything to do with Thomas Hamilton. It is true of course that the guns employed on 13 March 1996 by Thomas Hamilton were not shotguns and that the Dunblane shootings, although the subject of an extensive public judicial inquiry, never gave rise to any judicial decision about revocation of any firearm or shotgun certificates. Perhaps the most that can be said is that it is never possible to extrapolate with complete reliability from the circumstances of one case to the circumstances of another and certainly dangerous to attempt to do so without appropriate expert evidence. It does not appear on the information available to me that Dunblane was referred to at all in evidence before the sheriff. Every case must in the end turn on its own particular facts and in the present case there was not sufficient evidence as I have held to support a revocation of the appellant's shotgun certificate on the statutory ground contained in section 30C(1) of the 1968 Act as amended.
As to the terms of the interlocutor disposing of the present appeal I think it appropriate to delete the seventy-fourth finding-in-fact and to substitute a new second finding-in-fact-and-law for that of the sheriff, as suggested by counsel for the appellant. These changes encapsulate the essence of my decision in this appeal because it was the transition from the seventy-third to the seventy-fourth finding-in-fact and thence to the second finding-in-fact-and-law which was in my opinion not warranted by the evidence available to the sheriff in the case. It was agreed before me that the present appeal should be certified as suitable for the employment of junior counsel, that the expenses of it should follow success and that in the event of it being allowed in respect of the shotgun certificate's revocation the expenses of the earlier appeal to the sheriff should be borne by the parties equally on the view that there had in the result been divided success in it. These matters are reflected in my interlocutor.
BA KERR