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Cite as: [2004] ScotSC 11

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

B445/02

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		SHIRLEY HARRISON
		Pursuer and Appellant
		against
		CHIEF CONSTABLE, GRAMPIAN POLICE
		Defender and Respondent

Act: Party

Alt: Mr S L Stuart, advocate, instructed by Mr R C Yule, solicitor, Aberdeenshire Council

Aberdeen: 9^th February 2004

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutors of the sheriff dated 25 April and 4 November 2003 subject to the deletion in the third sentence of finding in fact 18 in the interlocutor dated 25 April 2003 of the word "seen" and the substitution therefor of the word "heard"; finds the pursuer and appellant liable to the defender and respondent in the expenses of the appeal as taxed, allows an account thereof to be given in and remits the same to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] The pursuer and appellant in this case is a farmer. She formerly held both a firearm certificate and a shotgun certificate. The firearm certificate related to two rifles and some ammunition for these rifles, while the shotgun certificate related to two double barrelled shotguns. The pursuer used these weapons to control vermin and to despatch sick or injured animals on her farm. But, following certain events on 7 October 2002, the defender and respondent decided to revoke the two certificates. This decision was conveyed to the pursuer by letters dated 18 and 28 October 2002. Being aggrieved by the defender's decision, she appealed to the sheriff.

[2] Section 30A(2) of the Firearms Act 1968, as amended by the Firearms (Amendment) Act 1997, provides that a firearm certificate may be revoked by the chief officer of police for the area in which the holder resides if he has reason to believe (a) that the holder is of intemperate habits or unsound mind or is otherwise unfitted to be entrusted with a firearm; or (b) that the holder can no longer be permitted to have the firearm or ammunition to which the certificate relates in his possession without danger to the public safety or to the peace. Section 30C(1) provides that a shotgun certificate may be revoked by the chief officer of police for the area in which the holder resides if he is satisfied that the holder is prohibited by the Act from possessing a shotgun or cannot be permitted to possess a shotgun without danger to the public safety or to the peace.

[3] Sections 30A(6) and 30C(2) provide that a person aggrieved by the revocation of a firearm certificate or shotgun certificate respectively may appeal against the revocation in accordance with section 44 of the Act. Section 44 provides, inter alia, that (1) such an appeal lies, in Scotland, to the sheriff, (2) the appeal shall be determined on the merits (and not by way of review), (3) the sheriff hearing the appeal may consider any evidence or other matter, whether or not it was available when the decision of the chief officer of police was taken, and (5) in Schedule 5 to the Act Part III shall have effect in relation to appeals to the sheriff.

[4] Part III in Schedule 5 provides:

An appeal to the sheriff shall be by way of summary application.

An application shall be made within 21 days after the date on which the appellant has received notice of the decision of the chief officer of police in respect of which the appeal is made.

On the hearing of the appeal the sheriff may either dismiss the appeal or give the chief officer of police such directions as he thinks fit as respects the certificate or register which is the subject of the appeal.

The decision of the sheriff on an appeal may be appealed only on a point of law.

[5] Section 50 of the Sheriff Courts (Scotland) Act 1907 provides, inter alia: "50. In summary applications (where a hearing is necessary) the sheriff shall appoint the application to be heard at a diet to be fixed by him, and at that or any subsequent diet (without record of evidence unless the sheriff shall order a record) shall summarily dispose of the matter and give his judgement in writing".

[6] In reliance upon sections 30A(6) and 30C(2) of the 1968 Act the pursuer presented a summary application to the sheriff. She craved the court (1) to recall the defender's decision to revoke both her firearm and shotgun certificates and (2) to make any other directions as the court deemed proper in terms of paragraph 3 of Part III of Schedule 5 to the Act. Answers were lodged on behalf of the defender, and in due course evidence and submissions were heard by the sheriff on 17, 18 and 19 February and 11 and 12 March 2003. Thereafter, by interlocutor dated 25 April 2003, the sheriff dismissed the appeal. Subsequently, by interlocutor dated 4 November 2003 he decerned against the pursuer for payment to the defender of the taxed amount of the expenses of the cause. These are the two interlocutors which are the subject of the present appeal.

[7] In his interlocutor dated 25 April 2003 the sheriff made a total of forty findings in fact. It is clear from these and the note which the sheriff appended to his interlocutor that there was a sharp difference between the pursuer on the one hand and the defender's witnesses Mr Alexander Bremner, Police Inspector Ian Swan and Police Constable Reginald Geddes on the other hand about (1) what was said by the pursuer, and her manner, during a telephone conversation which she had with Mr Bremner on 7 October 2002, and (2) what happened when Inspector Swan and Constable Geddes went to see the pursuer at her farmhouse later that same day. In the event, for the reasons clearly explained by the sheriff in his note, he preferred the evidence of Mr Bremner, Inspector Swan and Constable Geddes to that of the pursuer.

[8] By way of background, it should be explained that in the year 2000 the pursuer, with Government approval and backing, commenced a three year trial of genetically modified oilseed rape on her farm. The trial was due to end in August 2003. It attracted the attention of the media and resulted in demonstrations from protesters opposed to the growing of genetically modified crops. The pursuer objected to the damage to her crops being filmed and broadcast as she believed that such publicity furthered the cause of the protesters. Mr Bremner was the Head of News for BBC Scotland based at Aberdeen. After damage had been caused to the genetically modified crops growing on the pursuer's farm during the weekend of 5/6 October 2002, Mr Bremner on 7 October 2002 sent a cameraman out to film the damage to the crops. He instructed the cameraman to remain on the public road. He then telephoned the pursuer as a matter of courtesy to inform her that the cameraman was coming. This call was not answered, and Mr Bremner left a message for the pursuer explaining, in short, what the cameraman would be doing. At about 11.00 am on 7 October 2002 the pursuer heard the message and returned Mr Bremner's call. He was unavailable at the time, and a colleague took the call. He formed the view that the pursuer sounded extremely angry. She wanted the cameraman recalled. The colleague reported the matter to Mr Bremner who immediately telephoned the cameraman and instructed him to leave the area of the pursuer's farm and to await further instructions. What happened then is narrated in the sheriff's findings in fact 16, 17 and 18 as follows:

16. Mr Bremner then telephoned the pursuer. When he spoke to her he formed the view that the pursuer was in a highly emotional state. She shouted down the telephone. She was angry that the B.B.C. were covering the story about the damaged crops. She did not want the cameraman there. Mr Bremner assured the pursuer that the cameraman would remain on the public road. This did not seem to pacify the pursuer who remained extremely angry.

17. During the telephone conversation the pursuer threatened several times that she would damage the camera. She said several times that she was out of control and that she would not be responsible for her actions. She said to Mr Bremner that she had guns and that she would use them. She repeated, "I have guns here". Mr Bremner told the pursuer that her comments were very serious threats and the pursuer replied, "Yes", I am serious. I hope you are hearing what I am saying Sandy." Mr Bremner replied "Yes" and that he felt sorry that the pursuer felt that way.

18. Throughout the telephone conversation the pursuer was shouting, aggressive and very angry. Mr Bremner formed the view that the pursuer was out of control. He had seen the pursuer in that state before but she had usually calmed down. On this occasion she did not calm down. He was taken aback by the sustained anger and level of threats. He was shaken and stunned by the threats and concerned for the safety of anyone coming into contact with the pursuer while she was in such a state. In twenty years as a journalist he had never come across similar threats.

[9] Following this conversation, Mr Bremner telephoned the police and reported the matter. What happened then is recorded in the sheriff's findings in fact 22 to 36 inclusive. In short, at about 2.00 pm on 7 October 2002 Inspector Swan and Constable Geddes attended at the pursuer's farm. At the time there was another man present in her kitchen on business. After he had left, Inspector Swan informed the pursuer that they were there as a result of a report made by Mr Bremner of his telephone call with her earlier in the day. The sheriff found that the purpose of the visit to the pursuer by Inspector Swan was to assess her state of mind and to decide if she was in a fit state to have possession of firearms. When Inspector Swan asked her about the telephone call with Mr Bremner, she said that she could not recall what she had said to him but that "None of them are safe if they come near the farm". Asked to explain what she meant by "them", she replied, "The media". Inspector Swan told the pursuer that no official complaint had been made, but that he was there to check her state of mind. She paced about the kitchen. She was agitated. She said that she was the victim and that it was always the victim who was penalised. Having observed her agitated state and having heard her say that the media were not safe coming near her farm, Inspector Swan decided to remove her guns. The pursuer was initially reluctant to hand her guns over and questioned whether the two officers were in fact police officers at all. But in due course she got the keys for the gun cupboard and her two shotguns, two rifles and some ammunition and a silencer were all placed in the police vehicle. The pursuer was asked for, and handed over, her shotgun and firearm certificates and she was given a receipt for the items which had been removed by the two police officers.

[10] The sheriff's findings in fact 39 and 40 were as follows:

39. The pursuer's demeanour during her telephone call to Mr Bremner during the morning of 7 October 2002 was angry and threatening.

40. The pursuer's behaviour during the visit by Inspector Swan and Constable Geddes on 7 October 2002 was agitated and irrational.

[11] The sheriff made two findings in fact and in law as follows:

The pursuer is not fit to be entrusted with a firearm or a shotgun.

The pursuer can no longer be permitted to have possession of firearms or shotguns without danger to public safety or to the peace.

[12] In light of these findings the sheriff made one finding in law namely: "1. The pursuer's appeal against the decision of the Chief Constable to revoke her firearm certificate and shotgun certificate should be dismissed". The sheriff dismissed the appeal accordingly.

[13] In her note of appeal (no. 10 of process) the pursuer set out twelve grounds of appeal. I shall refer to these shortly, but before I do so it may be helpful to be reminded of the approach which I am required to take in an appeal to myself in a case of this kind. Counsel for the defender submitted under reference to Clarke v Edinburgh and District Tramways Company Limited 1919 SC(HL) 35 and Duncan v Wilson 1940 SC 221 that an appeal court should not ordinarily interfere with the judgement of a court of first instance which is based on the evidence which has been led before that court and the conclusions or inferences drawn from that evidence, especially where the decision of the court of first instance turned upon its assessment of the credibility and reliability of the witnesses who had given evidence before it. Thus in Duncan v Wilson the Lord President (Normand) observed at pages 224/5: "A court of appeal is certainly bound to respect a finding in fact arrived at on an estimate of the credibility of the witnesses made by the judge who saw them and heard their evidence. Yet, when a question of fact is submitted to it for review, the court cannot avoid the duty of considering the material brought before it and of pronouncing its own judgement upon it. When the Lord Ordinary has decided a question of fact upon data which were available to him but which cannot be brought before the court of appeal, restricted as it is to the written record of what passed at the proof, it will, in ordinary circumstances, decline to interfere with his determination. For example, an opinion of the Lord Ordinary, favourable or adverse, on the demeanour of a witness, is of peculiar importance and authority, because he is, by necessity, alone qualified to judge of demeanour, and the court of appeal has no material before it which would enable it to form an opinion of its own. Since the opinion of the judge of first instance on such points as the demeanour of the witnesses has this special importance, it is proper and usual that he should not leave any doubt that his determination of any particular question of fact is based on what passed before him but cannot be reproduced in the print of evidence". In the present case the sheriff had the opportunity denied to an appeal court of seeing and hearing the pursuer, Mr Bremner, Inspector Swan and Constable Geddes as they gave evidence, and in his note he gave clear reasons why he preferred the evidence of the defender's witnesses to that of the pursuer. For this reason alone it would have been very difficult to justify any interference by an appeal court with the crucial findings in fact made by the sheriff.

[14] But there is a more fundamental difficulty for the pursuer, namely that the evidence in this case was not recorded (nor did it have to be - see section 50 of the 1907 Act). In this situation counsel for the defender submitted that, in an appeal against the decision of the sheriff, it was necessary to proceed on the basis only of his findings in fact under reference to any documents founded upon by him in these findings. If, said counsel, a record of the evidence had been available, then issues such as whether the sheriff had been entitled to make a particular finding in fact might have arisen. But, in the absence of agreement between the parties, this could not happen where there was no such record of the evidence. That this is correct is supported by paragraph 18.109 in Macphail's Sheriff Court Practice (2^nd Edn) where it is said: "If the evidence has not been recorded, the judge's findings in fact are not open to review: they are binding on the appellate court, which cannot make different, or further, findings in fact". The accuracy of this particular passage is vouched by the decision of the Second Division in Allardice v Wallace 1957 SLT 225.

[15] In the course of her submissions the pursuer drew attention to the third sentence in the sheriff's finding in fact 18 where he found that Mr Bremner had "seen" the pursuer out of control before. The pursuer pointed out that there had been no evidence led before the sheriff to the effect that she and Mr Bremner had ever been in each other's prescience. Counsel for the defender accepted that there had indeed been no evidence that Mr Bremner had actually seen the pursuer, albeit that he had stated that he had had previous telephone conversations with her. I did not understand the pursuer to dispute this, and I have therefore substituted the word "heard" for "seen" in the third sentence of finding in fact 18. The pursuer submitted in this context that the sheriff's preference for the evidence of Mr Bremner over her own evidence had thus been based on a falsehood which had materially and fundamentally influenced his decision. I do not agree. The sheriff's mistake here was in my opinion a trivial one which does not to any extent undermine the cogent reasons stated by him in his note for preferring the evidence of Mr Bremner to that of the pursuer.

[16] In addition to being bound (subject to this one very minor qualification) by the sheriff's findings in fact, I am bound also by the terms of paragraph 4 of Part III of Schedule 5 to the 1968 Act to the effect that the decision of the sheriff in a case of this kind may be appealed only on a point of law. Thus it is not open to me to review the sheriff's decision on its merits. Here I would respectfully agree with what was said on this point by Sheriff Principal Nicholson QC in Evans v Chief Constable, Central Scotland Police 2002 SLT (Sh.Ct.) 152. At page 156C/D he said: "In my opinion I would have been entitled, within the terms of the statutory restriction, to review the sheriff's decision if I had been satisfied (which I am not) that he had misinterpreted the provision contained in section 30C of the Act, and had therefore approached his consideration of the appeal by applying the wrong test. I do not consider, however, that paragraph 4 of Part III of the Schedule entitles me to carry out a review of the sheriff's decision, with the possibility of substituting a decision of my own, when I can discern no error of law in his approach to the issues before him".

[17] The pursuer had evidently prepared for the appeal to myself with considerable care, and she very helpfully handed to me two typed transcripts of the detailed submissions which she proposed to make, firstly, in opening and closing her appeal and, secondly, in addressing each of the twelve grounds of appeal stated in her note of appeal. These transcripts have been retained with the papers in the case, and accordingly I do not think that it is necessary that I should rehearse in this note everything that was said by her. Moreover, much of what she had to say constituted in effect a review of the evidence which had been heard by the sheriff, and I have already sought to explain why I am unable myself to reconsider this evidence or, in the absence of agreement, to amend the sheriff's findings in fact. The blunt fact is that I am bound by these, and I do not think that any useful purpose would be served by my seeking to address every individual point that the pursuer made about the evidence. Instead, I shall attempt to identify, and deal with, those points in her submissions where she maintained that the sheriff had erred in point of law.

[18] The first ground of appeal reads as follows:

1. As the Appeal Hearing was privately brought by myself because no transgression of any law took place, the Sheriff did not refer to any point of law in his Judgment and has based his findings on hearsay and, therefore, the Firearms Act 1968 schedule 5, part III, para 4 does not apply in this Appeal against the Sheriff's Decision, and is not restricted.

In support of this ground of appeal the pursuer referred in the first place to the point (upon which I have already commented) that there had been no evidence before the sheriff to the effect that Mr Bremner and the pursuer had ever been in each other's presence. Under reference to Cunning v Chief Constable of Fife 1975 SLT (Sh.Ct.) 18 she submitted that the procedure followed by the sheriff in this case had been contrary to the rules of natural justice. She submitted that her rights as an individual under natural justice had been totally ignored by the BBC and then by Inspector Swan and Constable Geddes, and she further maintained that her side had not been heard. She referred to correspondence which had passed between herself and the police following the removal of her rifles and shotguns and asserted that the police had denied her natural justice. Instead of being innocent unless proved guilty, she had, so she said, immediately been pronounced guilty by the defender who had deprived of her of vital farming equipment. She thus had had to prove her innocence by appealing to the sheriff by way of a summary application. She referred to the fact that Mr Bremner had made three statements to police officers following his telephone conversation with her on 7 October 2002. The first had been to a Police Constable Charles who had not been called by the defender as a witness and whose statement had not been produced in court to show what Mr Bremner had initially said. Secondly, Mr Bremner had made a statement to Constable Geddes, and this statement too had not been produced in court. Finally, he had made a third statement to a Sergeant Colin Donald. This statement had been produced in court but Sergeant Donald himself had not been called as a witness. This was all in the context of an email which had previously been sent by a Chief Inspector Albert Donald (who had not been called as a witness) in which he had stated: "We will, however, need to firm up on the information we are providing to Chief Inspector Duncan to allow the Force to make a decision on revocation and which would also need to be able to stand up to legal challenge". The pursuer also referred to the fact that Constable Geddes had not made a statement of what had taken place in her home on 7 October 2002 but instead had been able to read and refresh his memory merely by reading Inspector Swan's statement.

[19] In my opinion there is no substance in this ground of appeal. In particular, it is not true that the sheriff did not refer to any point of law in his judgement. In addition to his mixed findings in fact and in law and his finding in law which I have already quoted, he referred at various points in his note to the law to be applied in a case of this kind. Thus, for example, at page 8 he drew attention to the provisions of section 44 of the 1968 Act and at page 15 he observed that, in deciding, on the facts found to be established in evidence, whether the pursuer should be permitted to possess firearms, he required to determine whether such possession would endanger the public safety or the peace. He also pointed out that the approach which he was required to take was to consider the matter de novo on the merits, by reference to the evidence led before the court. Nor is it true that he based his findings on hearsay. On the contrary, it is perfectly clear that the findings in particular in relation to the critical events of 7 October 2002 were based on the direct evidence of Mr Bremner, Inspector Swan and Constable Geddes who were speaking from personal knowledge rather than hearsay. As for the suggestion that there had at some stage in the proceedings been a breach of the rules of natural justice, I am unable to see in anything that was said by the pursuer under reference to this first ground of appeal where there could be said to have been such a breach. In particular, it will not do in my opinion for the pursuer to assert, as I understood her to do, that, after five days of evidence and submissions before the sheriff during which she was represented by senior and junior counsel, her case had not been properly heard by the sheriff. Nor am I able to detect any error of law on the sheriff's part in anything that was said by her about statements which may have been made by Mr Bremner to the police or about those police officers who had not been called as witnesses.

[20] The second ground of appeal reads:

1. Constable Geddes that on or about 7 October, 2002, I had told the two policemen that I could not recall what I had said to Mr. Bremner (on the telephone) and that I had said "None of them are safe if they come near the farm" and by 'them' I had said "the Media". The Sheriff erred in so finding because no such question was ever put to me by the Counsel for the Police. I was denied by the Sheriff the opportunity of answering or being recalled because when this was highlighted to the Sheriff by my Counsel the Sheriff said that this was noted, yet in the Sheriff Judgement he ignored that and proceeded to find against me. The Sheriff therefore erred in law in accepting that evidence and having so wrongly accepted that evidence should not have been able in law to find against me.

Here the pursuer submitted that she had been denied by the sheriff her right to respond to what the two police officers had told the sheriff that she had herself said to them. She also referred here to a passage in the sheriff's note at page 12 where he stated that Inspector Swan had offered to show her his warrant card. In this context she drew attention to a letter dated 7 August 2003 to herself from HM Chief Inspector of Constabulary (which was not before the sheriff) in which it was said that the Deputy Chief Constable of Grampian Police had made both Inspector Swan and Constable Geddes aware that, if requested, even in uniform they should produce their warrant cards. The pursuer posed the question why the Deputy Chief Constable should have done this if Inspector Swan had indeed offered to show her his warrant card.

[21] I have already explained why, in the absence of any record of the evidence, I am unable to disturb the sheriff's findings in fact without the agreement of the parties. It was a matter for the sheriff to assess the evidence of the witnesses whom he had heard in light of the submissions which were made to him both by the pursuer's counsel and by counsel for the defender, and I am unable to see how it can be said that the sheriff erred in law in making his finding in fact 26 to the effect that the pursuer had said to Inspector Swan that she could not recall what she had said to Mr Bremner but that "None of them are safe if they come near the farm". As for the question whether or not Inspector Swan offered to show the pursuer his warrant card, again I cannot see where the sheriff can be said to have erred in law in making this statement.

[22] The third ground of appeal reads:

1. The Sheriff's view is that I was prepared to lie in court in an attempt to discredit, as witnesses, Inspector Swan and Constable Geddes. I have told the truth in court and have not lied. I was able to prove that Inspector Swan made an error in his statement which was produced in evidence that when I returned Mr. Bremner's (BBC) telephone message, Mr. Bremner was out and I left a short message with a BBC employee. Mr. Bremner made a second call to myself and the disputed telephone conversation took place. Inspector Swan had said that I phoned Mr. Bremner and the disputed conversation took place. My BT telephone account for 7 October 2002 was produced in court to prove that my call to Mr. Bremner at 10.49 was very short. The Sheriff erred in law in finding against me.

The pursuer referred here to the averment in answer 5 (page 11 of the closed record, no. 5 of process) to the effect that at about 11.00 am on 7 October 2002 she had returned Mr Bremner's call and that it was during this call that she had appeared to him to be in a highly agitated state. The pursuer then referred to a statement (no. 4/3 of process) by Inspector Swan in which he had said that the pursuer had telephoned Mr Bremner and that it was during this conversation that she had become extremely agitated and so on. The pursuer referred here too to various other productions the significance of which, as I understood her, was to demonstrate that the conversation in question had occurred when Mr Bremner had telephoned her rather than when she had telephoned him. This of course coincides with what is said in the first sentence of the sheriff's finding in fact 16. But, said the pursuer, the sheriff had ignored the fact that Inspector Swan had been wrong in his statement in this matter and he had not considered whether, if Inspector Swan had got this wrong, he had also got other facts wrong as well.

[23] In my opinion there is no substance in these submissions. It was for the sheriff to assess the evidence of Inspector Swan, and I do not detect any error of law in his approach to this matter. It may indeed be that Inspector Swan was mistaken about who it was that had initiated the telephone conversation in question. But it does not follow from the fact that a witness is mistaken in his evidence about one detail (and in this instance a quite insignificant one) that the witness must be taken to have been wrong in everything else that he said in evidence. The sheriff was perfectly entitled to reject Inspector Swan's evidence on this particular point and at the same time to accept the remainder of his evidence.

[24] The fourth ground of appeal reads:

1. 2002 when both officers were in my home that I had paced about the kitchen and that I went to use the telephone but changed my mind, thus giving Inspector Swan the impression that I was in an agitated state which is what Inspector Swan told the Sheriff. Both police officers admitted that they arrived at my farm just after 1400 on 7 October 2002. My BT telephone account already referred to in the Appeal Hearing Court and lodged in the case shows that I made a phone call to BBC at 14.13 in the hearing of both police officers I spoke to a BBC employee because Mr. Bremner was out of the office. This is a second error by Inspector Swan, however, the Sheriff has ignored this confirmed telephone call and accepted the account by both officers that I changed my mind about making the call. The Sheriff erred in law by ignoring the facts and applying wrong facts.

In support of this ground of appeal the pursuer referred to copies of her telephone account (nos. 6/2/7 and 6/2/8 of process) the significance of which, according to her, was to demonstrate that at 2.13pm on 7 October 2002 the pursuer had indeed made a telephone call to the BBC. The pursuer explained that Mr Bremner had been out of the office and that she had left a message with his colleague Mr Jones saying that she would telephone back later. The pursuer maintained that here too Inspector Swan had been wrong in his evidence before the sheriff. The latter, so she said, had erred in law by ignoring the facts and applying the wrong facts. He had used this matter against herself and had misdirected himself and had formed a view on a falsehood which had materially and fundamentally influenced his decision.

[25] In my opinion it cannot be said that the sheriff erred in law here. Once again, it was a matter for him to assess the evidence of Inspector Swan. Even if it is true that he was mistaken about this particular detail (and in the absence of the record of the evidence I cannot possibly say that he was), it is a trivial detail which does not begin to justify the assertion that the sheriff may have erred in law in accepting the evidence of Inspector Swan about the pursuer's behaviour when he and Constable Geddes visited her home on 7 October 2002.

[26] The fifth ground of appeal reads as follows:

1. The third phone call to BBC made after the two police officers left my home was at 14.27 this was also referred to in Court at the Appeal Hearing. Both Police officers described to the court how they both checked my four guns, Inspector Swan fired them in the garden, both officers claimed that they themselves had put each firearm individually into in their vehicle (which has to be untrue), removing a silencer and black box containing ammunition, asking for my gun licences, me having to look out my gun licences, removing my gun licences, giving me a receipt, and advising me of the whole procedure that would be applied which was all done in under fourteen minutes to do all of this, the time lapsing between my second call (that both officers have said I did not make) at 14.13 and third call at 14.27. The Sheriff erred in finding in law that this was possible without question.

The pursuer referred her once more to her telephone accounts which, so she said, demonstrated that she had made a third telephone call to Mr Bremner at the BBC at 2.27pm on the date in question. As I understood it, her point here was that the events described by Inspector Swan and Constable Geddes during their visit to her home had occurred during a period of no more than fourteen minutes (between 2.13pm and 2.27pm). The argument seemed to be that not everything which the officers had said had happened during the visit could have been done within this period of fourteen minutes. The pursuer also referred to the fact that no notes had been taken by the officers during the visit and that the sheriff had commented that there were minor discrepancies in their evidence. She referred too to a letter which she had received from a Superintendent Clark which, she said, demonstrated that Inspector Swan and Constable Geddes had violated thirteen points in the Grampian Police Shooters Safety Code.

[27] Once again, nothing that was said by the pursuer in support of this fifth ground of appeal supports the claim that the sheriff made any error of law in his findings in fact based on the evidence of Inspector Swan and Constable Geddes as to what happened when they visited the pursuer's house. In particular, even if it were true that the officers had violated the Grampian Police Shooters Safety Code as suggested by the pursuer, it would not follow that the sheriff ought to have rejected their evidence about the pursuer's demeanour, and what was said by her, during their visit to her house. This was the crucial part of their evidence, and the sheriff was perfectly entitled to accept it in preference to that of the pursuer.

[28] The sixth ground of appeal reads as follows:

1. The Sheriff has accepted the evidence of Mrs. Radlciffe, M.S.P. John Christlieb and Richard Ord was mainly in the nature of character references, the three witnesses were found to be credible and reliable and that I was a law abiding person, of sober habits, who took a responsible attitude to matters of safety on my farm and that I am experienced in handling firearms and is not only conscious of the need to take firearm safety seriously but does so. I find the Sheriff's comments that I was prepared to lie in court in an attempt to discredit, as witnesses, Inspector Swan and Constable Geddes as irrational in light of the above comments made by the Sheriff. The Sheriff erred in law because in so finding his decision to dismiss my appeal is clearly wrong and irrational. It is perverse.

The pursuer referred here to the evidence of Mr John (Alexander according to the sheriff - see page 8 of his judgement) Nicol, a senior agricultural adviser, who was present in her kitchen when the two police officers arrived on 7 October 2002. She referred to the passage at page 14 of the sheriff's judgement where he wrote: "With regard to the evidence of Mr Nicol I am of the view that he was mistaken when he said that Constable Geddes was not wearing body armour. I am also of the view that he formed a mistaken impression of the two officer's demeanour when they were in his presence in the kitchen. I accept that they were silent and uncommunicative but that, in my view, is explained by Inspector Swan not wishing to discuss the purpose of their visit in front of a third party, not an attempt to intimidate or threaten". According to the pursuer, the sheriff had dismissed Mr Nicol "by saying he was mistaken, in other words he also lied as to the attitude and behaviour of these two policemen in my home".

[29] Mrs Nora Radcliffe MSP wrote, according to the pursuer, to the defender to ask him to halt proceedings against her and to return her weapons and licence to her as she told the court "it seemed to me to be an overreaction or completely out of proportion". Mr John Christlieb has apparently known the pursuer since 1956, and Mr Richard Ord has known her from some two and a half years. Of these three witnesses the sheriff wrote at page 14 of his judgement: "The evidence of Mrs Radcliffe, M.S.P., John Christlieb and Richard Ord was mainly in the nature of character references supporting the pursuer. I found these three witnesses to be credible and reliable and their collective evidence established that the pursuer was a law abiding person, of sober habits, who took a responsible attitude to matters of safety on her farm. That she is experienced in handling firearms and is not only conscious of the need to take firearm safety seriously, but does so".

[30] In my opinion there is no substance in this ground of appeal. Once again, it was a matter for the sheriff to make up his mind about the credibility and the reliability of the witnesses who gave evidence before him, and about the weight to be given to their evidence. There was nothing inconsistent, and in particular no error of law, in the sheriff accepting on the one hand the evidence of Mrs Radcliffe, Mr Christlieb and Mr Ord as to the pursuer's character generally and, on the other hand, the evidence of Mr Bremner, Inspector Swan and Constable Geddes as to what happened on 7 October 2002. It is of course not unusual in court proceedings to hear a witness in good faith praise someone in general terms without being aware of the details of a particular incident which may not reflect so favourably on the person whose character is being praised.

[31] The seventh ground of appeal reads:

1. The evidence as to the procedure which was followed in deciding to revoke my Firearm and Shotgun Certificates "In my view (Sheriff Harris's view), their evidence was of little relevance to the issue before the court, given the requirement of Section 44 of the Firearms Act 1968, as amended, that this appeal shall be determined on the merits, and not by way of review". I find this statement referring to Inspector Allan giving evidence as to the procedure which was followed in deciding to revoke my Firearm and Shotgun Certificates as clearly wrong, irrational and perverse and as such the Sheriff has erred in law. Inspector Allan's witness statement which was lodged and referred to in evidence and spoken to confirmed that he was a local community Police Inspector responsible for the policing of Inverurie and surrounding area and he gave evidence that he had regular contact with myself regarding the ongoing trials and incidents and that I was invariably reasonable to deal with and at no time gave any cause for concern regarding my fitness to hold firearms. The Sheriff erred in law in dismissing this evidence because he was called as a witness for the Police.

The pursuer referred here to the evidence which had been given before the sheriff by Inspector David Allan and Chief Inspector Ian Duncan. She drew attention to the statement of Inspector Allan (no. 4/4 of process), and in particular the last sentence which reads: "During this time she was invariably reasonable to deal with and at no time gave any cause for concern regarding her fitness to hold firearms". She drew attention too to the statement of Chief Inspector Duncan (no. 4/8 of process), and pointed out in particular a passage in which he spoke of a conversation which he had had with her during which she had insisted that Inspector Swan and Constable Geddes were not British police officers. At the end of the paragraph in question Chief Inspector Duncan stated: "I formed the view that she genuinely believed this to be the position".

[32] The pursuer also referred here to an email (no. 4/2 of process) which had been sent on 8 October 2002 by Chief Inspector Albert Donald (who was not a witness before the sheriff) to Inspector Duncan Rennie (also not a witness) with copies to Inspector Swan and Chief Inspector Duncan. In this email Chief Inspector Donald wrote, inter alia: "We will, however, need to firm up on the information we are providing to Ch Insp Duncan to allow the Force to make a decision on revocation and which would also need to stand up to legal challenge". In a hand-written note dated 16 October 2002 Chief Inspector Duncan wrote, inter alia: "On the basis of the information at hand, I am of the view, that at this point in time, Mrs Harrison cannot possess shotguns without being a danger to the public safety or to the peace and she is not fit to be entrusted with firearms. Please progress letter of revocation for consideration by DCC".

[33] The pursuer submitted that the sheriff had made a fundamental and material mistake in that he had placed Inspector Allan's testimony as that of giving evidence as to the procedure which was followed in deciding to revoke her weapons certificates despite the fact that Inspector Allan's statement made no mention of his being involved with the Firearms Licensing Department of Grampian Police. In a nutshell, said the pursuer, the police officers concerned had made a mountain out of a flat plain when all she had done was to upset certain police officers. She submitted that the sheriff had erred in ignoring the observations of Inspector Allan and Chief Inspector Duncan in their respective statements which have been quoted above. The sheriff, said the pursuer, had simply dismissed the evidence of both these police officers since it would not fit in with his judgement.

[34] The pursuer referred here also to a comment which had been made by the sheriff during the final submissions of counsel for the defender to the effect that she (the pursuer) perhaps felt that she had been badly dealt with and had therefore been quite upset. She referred also to a note which the sheriff had made on a copy of Chief Inspector Duncan's statement to the effect that he agreed with the Chief Inspector's view that the pursuer liked to be in control.

[35 In my opinion nothing that was said by the pursuer in support of her seventh ground of appeal demonstrates any error of law on the part of the sheriff which would allow me to interfere with his decision. As counsel for the defender pointed out, the appeal to the sheriff fell to be determined on the merits (and not by way of review). Accordingly, whatever may or may not have been said by the police officers involved in the decision to revoke the pursuer's certificates was likely to be of little relevance to the critical issues which the sheriff himself had to determine, in particular in relation to the events of 7 October 2002. I have already sought to explain why I cannot interfere with the sheriff's findings in fact. Even it is true that in his evidence before the sheriff Inspector Allan adhered to the view that he had previously expressed in his statement to the effect that he had found the pursuer invariably reasonable to deal with and that at no time had she given him any cause for concern regarding her fitness to hold firearms, this would merely have been one item of evidence which the sheriff would have had to consider along with all the rest of the evidence in the case and he cannot be said to have erred in law in having, in light of all the evidence, reached the conclusions which he did. Likewise, even if in the course of his evidence Chief Inspector Duncan did repeat the view expressed in his earlier statement to the effect that he had thought that the pursuer genuinely believed that Inspector Swan and Constable Geddes were not police officers, the sheriff would not have been obliged to accept this expression of opinion on the part of Chief Inspector Duncan. The sheriff was required to consider the evidence of all the witnesses which bore on this point, and not just that of Chief Inspector Duncan, and in my opinion it cannot be said that he erred in law simply because he did not accept the Chief Inspector's view.

[36] The eighth ground of appeal reads:

1. Media or General Public to confirm that they had been threatened by myself with my firearms or shotguns at any time on or off my farm. The sheriff erred in law in finding that I was in any way a danger to the public.

The pursuer referred here to her diaries for the years 2000, 2001 and 2002 which, in short, demonstrated the numerous contacts which she had had with representatives of newspapers, radio and television during the three year trial of genetically modified oilseed rape on her farm. She also referred to visits to her farm by members of the general public, "green groups", "organic growers", civil servants, organised protest groups, fellow farmers, scientists and numerous police officers. She said that the defender had been unable to provide any one witness from among all these persons to confirm that he or she had been threatened by herself with her firearms or shotguns at any time on or off her farm. It followed, so she maintained, that the sheriff had erred in law in finding that she was in any way a danger to the public.

[37] In my opinion there is no substance in this ground of appeal. Even if it be true that no one had ever been threatened by the pursuer at her farm before 7 October 2002, the events of that day as narrated by the sheriff in his findings in fact in my view justified him in reaching the conclusions which he did as expressed in his findings in fact and in law, and he cannot be said to have erred in law in reaching these conclusions.

[38] The ninth ground of appeal reads:

1. Mr Bremner BBC confirmed to the court that no recording had been made of the second telephone call that he made to me on 7 October 2002. He confirmed to the court that he had never been to my farm but other BBC employees had been to my farm to carryout interviews for both radio and television and I had cooperated with them fully. The BBC staff had never felt threatened by myself. The Court has my diaries covering 2000, 2001 and 2002 and lists of phone messages and phone calls. The diaries and lists show the number of media personnel from both television and newspapers who have visited the farm for interviews, reports, filming and general news coverage of the GM crops I was growing. None of these people have come forward to say they were threatened by myself with a firearm or shotgun. The Sheriff erred in law in ignoring this evidence and then going on to find against me.

The pursuer referred here again to the fact that Mr Bremner had made three statements to police officers, the third of these being the one which had been taken by Sergeant Donald (no. 4/7 of process). She said that her considerable experience with the media had taught her that their representatives had a way of enhancing their reports to make them more exciting. She suggested that Mr Bremner had "sexed up" his version of his telephone conversation with her. She referred to the fact that this conversation had not been taped by Mr Bremner, and she mentioned a point in Mr Bremner's cross-examination by her senior counsel when he had questioned Mr Bremner about the use of the word "serious". The pursuer mentioned here too that, after this disputed telephone conversation, she had gone to work elsewhere on the farm where she had met Mr Nicol, and she had not gone to look for the BBC cameraman. She said that Inspector Swan and Constable Geddes had confirmed that her four weapons had been locked away in her gun cupboard along with their respective ammunition. She asserted that Mr Bremner had bullied her during the disputed telephone conversation, and she referred here to the fact that employees of the BBC were sent on courses which were designed, so it seems, to rid the BBC of bullies.

[39] I am bound to say that these were not the only submissions made by the pursuer which I had difficulty in following. But for present purposes I think that all I need to say is that I am quite unable to see in anything that was said in this context by the pursuer any error of law on the part of the sheriff.

[40] The tenth ground of appeal reads:

1. At my own free will I consulted with Dr. Oswald, Consultant Psychiatrist at Cornhill, Aberdeen. Dr. Oswald read out his report to the court in which he confirmed "I do not feel that there is a psychiatric reason for this lady's gun licences to be revoked". Dr. Oswald's evidence was not challenged yet the Sheriff chose to give it no weight whatsoever because he has already decided that I am a liar. The Sheriff erred in law in refusing to give this report any weight whatsoever.

The pursuer referred here to a report dated 7 February 2003 which had been prepared by Dr A G Oswald (no. 6/2/2 of process). He was a consultant psychiatrist who had interviewed the pursuer at the Royal Cornhill Hospital, Aberdeen on the same date. The final sentence of this report reads: "I do not feel that there is a psychiatric reason for this lady's gun licences to be revoked". The pursuer pointed out that Dr Oswald, being a qualified psychiatrist, would be well qualified to know when people were lying to him. In his report he had not suggested that the pursuer had been lying to him, nor had he mentioned that she suffered from any memory loss which was what the sheriff had implied at page 10 in his judgement where he had noted her as telling Inspector Swan "that she could not recall what she had said on the telephone to Mr Bremner". The pursuer stated that she had not been requested by the police to attend their psychiatrist, and she submitted that the sheriff had chosen not to give Dr Oswald's report any weight whatsoever because he had already decided that she was a liar. She indicated that Dr Oswald's evidence had not been challenged.

[41] As with the remaining witnesses, it was a matter for the sheriff to determine what weight, if any, he should give to the evidence of Dr Oswald. He referred to this evidence at pages 14/15 of his judgement, and I cannot see there any basis for concluding that he erred in law in his approach to it. As the sheriff himself observed, Dr Oswald's opinion was, to a large extent, based on a version of events as spoken to by the pursuer, a version which the sheriff did not accept as credible or reliable.

[42] The eleventh ground of appeal reads:

1. I ask the Court to consider the above points in light of the Sheriff's Judgment and to overturn the Judgment and to reconsider my appeal against the decision of the Chief Constable to revoke my Firearms Certificate Number 24358 and Shotgun Certificate Number 26855 in letters dated 18 October, 2002 and 28 October, 2002. To make any other directions as the Court deems proper in terms of paragraph 3, Part III of Schedule 5 of said Act. To find the Defender liable in the expenses of the Appeal Hearing, resultant Judgment and this Appeal against the Sheriff's Judgment.

The pursuer advanced no separate argument in support of this ground of appeal. Since I am satisfied that there is no substance in any of the earlier grounds of appeal, I have no difficulty in rejecting this ground of appeal too.

[43] The twelfth ground of appeal reads:

1. If this appeal on the above points is unsuccessful the judgment should be changed to include that the sheriff should have recommended a period of time and in fact the Sheriff implies in his decision that August 2003 which has now passed should be the time for the return of my firearms licences and shotgun certificates.

The pursuer drew attention here to the passage on page 16 of the sheriff's judgement where he wrote: "Thus, in my opinion, there is a risk, should the pursuer be in possession of firearms, that there could be a repetition of the threats made on 7 October, 2002 if further damage is caused to her crops and the media wish to film that damage". The pursuer pointed out here that there had been no genetically modified crops growing on her farm since August 2003.

[44] In response to this particular ground of appeal, counsel for the defender submitted that the sheriff had been required to decide if the revocation of the pursuer's firearm and shotgun certificates should stand under the statutory provisions set out in the 1968 Act as amended. He had not been required to decide for how long the revocation should stand, and arguably had had no power to do so under the Act. He had not been asked to limit any period of revocation and would have had no power to do so in any event since any directions which might be given in terms of paragraph 3 of Part III of Schedule 5 to the Act could only be given where an appeal to the sheriff was being upheld. Such directions could not be given where the appeal was being dismissed. In all these circumstances, so it was submitted, there had been no error of law on the part of the sheriff.

[45] For present purposes I do not think it is necessary that I should express an opinion on the question whether or not it would have been competent for the sheriff to sustain the pursuer's appeal to the extent of directing that the revocation of her firearm and shotgun certificates should subsist only until August 2003. If, as appears to be the case, he was not asked to consider this possibility, I do not see how he can be said to have erred in law in effectively rejecting it by dismissing, as he did, the pursuer's appeal outright. And since no error of law on his part has been demonstrated, it is not open to me on appeal to vary his decision to the extent of directing that the revocation of the pursuer's shotgun and firearm certificates should have subsisted only until August 2003. Besides, even if it had been open to me to consider this possibility, I think that, at the very least, I should have had to review the whole of the evidence (of which there is of course no record) before deciding whether or not to give effect to it.

[46] Having dealt with the twelve individual grounds of appeal, the pursuer summed up her submissions. She claimed that the sheriff had ignored all the evidence which had been put forward on her behalf, and she referred here in particular to the evidence of Mrs Radcliffe MSP, Dr Oswald, Mr Ord and Mr Christlieb. She referred to a passage in Mr Bremner's statement to Sergeant Donald (no. 4/7 of process) where he had spoken of his concern for general public safety. She pointed out that when Inspector Swan and Constable Geddes had arrived at her farmhouse they had found no bullet holes or smashed windows. Instead they had found inside the house Mr Nicol sitting perfectly relaxed and drinking a cup of coffee with the pursuer. The sheriff, said the pursuer, had written off all the witnesses who had been in her favour and had given no proper explanation as to how he had arrived at his decision. Natural justice demanded that a proper and full detailed judgement should have been given by the sheriff explaining why all these witnesses could not be telling the truth. The sheriff, said the pursuer, had not given the case proper consideration as was evidenced by the length of his judgement, namely sixteen pages, following a hearing before him which had lasted five days.

[47] As I have already indicated, it was for the sheriff to assess the evidence of all the witnesses whom he heard and nothing that was said by the pursuer has persuaded me that he erred in law in his approach to the evidence of these witnesses. As for the pursuer's point about the length of the sheriff's judgement, section 50 of the 1907 Act (which I have quoted in paragraph [5] above) required the sheriff summarily to dispose of the matter and give his judgement in writing. The Act does not specify how long his judgement should be, or what its contents should be. Against this background it would be most unwise of me to seek to lay down any general rules on the matter. It is sufficient for present purposes to say that in my opinion the sheriff in this case has dealt perfectly adequately with the issues which were canvassed before him, and (with the exception of the minor error in his finding in fact 18) the length and contents of his judgement demonstrate no error of law on his part nor a breach of the rules of natural justice.

[48] Both parties moved for the expenses of the appeal in the event of success. I have accordingly found the defender entitled to the expenses of the appeal.