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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Walker v. Lothian And Borders Police [2004] ScotSC 35 (11 May 2004)
URL: http://www.bailii.org/scot/cases/ScotSC/2004/35.html
Cite as: [2004] ScotSC 35
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SHERIFFDOM OF LOTHIAN AND BORDERS
B342/02
JUDGMENT OF
SHERIFF PRINCIPAL IAIN MACPHAIL QC
in the appeal
in the cause
JAMES MACLACHLAN ORR WALKER
Applicant and Respondent
against
THE CHIEF CONSTABLE, LOTHIAN AND BORDERS POLICE
Respondent and Appellant
Act: Erroch, Advocate; Drummond Miller WS
Alt: Artis, Advocate; City of Edinburgh Council
EDINBURGH, 11 May 2004
The Sheriff Principal, having resumed consideration of the cause, ex proprio motu amends the pleas-in-law for the respondent and appellant by deleting them and substituting therefor:
'(1) In respect that the applicant cannot be permitted to possess a shot gun without danger to the public safety or to the peace, he should not have his shot gun certificate restored.
'(2) In respect that the applicant cannot be permitted to have in his possession a firearm to which section 1 of the Firearms Act 1968 applies without danger to the public safety or to the peace, his application for a firearm certificate should be refused.';
allows the appeal; recalls the interlocutor of 12 November 2003 complained of; sustains the pleas-in-law for the respondent and appellant, as amended, repels the pleas-in-law for the applicant and respondent and dismisses the appeal by the applicant and respondent against the decisions of the respondent and appellant dated 29 November 2002 to revoke the shot gun licence of the applicant and respondent and to refuse to grant him a firearm certificate; finds the applicant and respondent liable to the respondent and appellant in the expenses of the cause including the expenses of the appeal; allows an account thereof to be given in and remits the same, when lodged, to the Auditor of Court to tax and to report; certifies the appeal as suitable for the employment of junior counsel.
NOTE
Introduction
[1] This is an appeal by the Chief Constable (the respondent) from a decision of the Sheriff disposing of an appeal by the applicant against two decisions of the respondent under the Firearms Act 1968, as amended. In applications dated 27 September 2002 the applicant applied to the respondent for the renewal of a shot gun certificate and for the grant of a firearm certificate. On 29 October 2002, before the respondent had disposed of the applications, the applicant drove his car when he was drunk and collided with the rear of a stationary car, causing extensive damage to both vehicles. He was subsequently prosecuted for a contravention of section 5(1) of the Road Traffic Act 1988 by driving on that occasion with 135 microgrammes of alcohol in 100 millilitres of breath, that is, nearly four times the legal limit of 35 microgrammes of alcohol in 100 millilitres of breath. He pleaded guilty and on 14 November 2002 he was fined £700 and disqualified for driving for 18 months. By letters dated 29 November 2002 a duly authorised Assistant Chief Constable revoked his shot gun certificate and refused to grant him a firearm certificate. The letter revoking the shot gun certificate (no 5/13 of process) reads in part:'In view of the circumstances surrounding the incident on 29 October 2002 which resulted in you being reported to the Procurator Fiscal on charges [of] contravening the Road Traffic Act 1988, I am not satisfied that you can be permitted to possess a shot gun without danger to the public safety or to the peace.'
The letter refusing to grant a firearm certificate (no 5/14 of process) reads in part:
'In view of [the same circumstances] I am not satisfied that you are fit to be entrusted with a firearm or that you can be permitted to possess a firearm without danger to the public safety or to the peace.'
'(1) To allow the applicant to appeal the respondent's decision to revoke the applicant's shot gun certificate and to restore the said certificate to the applicant.
'(2) To allow the applicant to appeal against the respondent's decision to refuse the applicant's application for renewal of his firearms [sic] certificate and to renew the said certificate to the applicant.'
It will be seen that the second crave misstates the nature of the application: it was for the grant, not the renewal, of a firearm certificate. That is not, however, material. The respondent lodged answers to the summary application and the Sheriff heard a proof on 22 September 2003.
[3] The Sheriff disposed of the application by an interlocutor dated 12 November 2003. At the hearing of the appeal against her decision the parties were agreed that her interlocutor contained the following errors. Finding in fact 14 reads:'(14) By letters dated 29 November 2002 the respondents [sic] refused to grant the applicant's application for a firearms [sic] certificate and to revoke his shotgun licence [sic].'
It was agreed that the end of that sentence should read, 'and revoked his shot gun certificate'.
[4] The interlocutor ends in the following terms:'Upholds the applicant's pleas-in-law and repels the respondent's pleas-in-law, in terms of section 41 of the Firearms (Amendment) Act, 1997 and "Part III, 3." thereof, directs that the respondent should further consider that the respondent should be entitled to the restoration of his shotgun licence [sic] and is entitled to renew his application for a firearms [sic] certificate, finds no expenses due to or by.'
It was agreed that where the word 'respondent' last occurs it should be replaced by 'applicant'. Further, the reference to 'Part III, 3' of section 41 of the Firearms (Amendment) Act 1997 is inept: the reference should be to paragraph 3 of Part III of Schedule 5 to the Firearms Act 1968, inserted by section 41(2) of the Firearms (Amendment) Act 1997.
The statutory provisions
[5] It will now be convenient to set out the relevant statutory provisions. Those about the revocation of shot gun certificates are set out in section 30C of the Firearms Act 1968 ('the 1968 Act') as substituted by section 40 of the Firearms (Amendment) Act 1997 ('the 1997 Act'). It provides:'(1) A shot gun 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 this Act from possessing a shot gun or cannot be permitted to possess a shot gun without danger to the public safety or to the peace.
'(2) A person aggrieved by the revocation of a shot gun certificate may in accordance with section 44 of this Act appeal against the revocation.'
'(1) A firearm certificate shall be granted where the chief officer of police is satisfied -
(a) that the applicant is fit to be entrusted with a firearm to which section 1 of this Act applies and is not a person prohibited by this Act from possessing such a firearm;
(b) that he has a good reason for having in his possession, or for purchasing or acquiring, the firearm or ammunition in respect of which the application is made; and
(c) that in all the circumstances the applicant can be permitted to have the firearm or ammunition in his possession without danger to the public safety or to the peace.'
Section 28A(6) of the 1968 Act, substituted by paragraph 4 of Schedule 2 to the 1997 Act, provides:
'(6) A person aggrieved by the refusal of a chief officer of police to grant or to renew a certificate under this Act may in accordance with section 44 of this Act appeal against the refusal.'
'(2) An appeal shall be determined on the merits (and not by way of review).
'(3) The [...] sheriff hearing an appeal may consider any evidence or other matter, whether or not it was available when the decision of the chief officer was taken.
'(4) [...]
'(5) In Schedule 5 to this Act - [...]
(b) Part III shall have effect in relation to appeals to the Sheriff.'
Section 41(2) inserts the following in Schedule 5 to the 1968 Act:
'PART III
APPEALS IN SCOTLAND
1. An appeal to the sheriff shall be by way of summary application.
2. [...]
3. 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.
4. The decision of the sheriff on an appeal may be appealed only on a point of law.'
The grounds of appeal
The evidence of Police Sergeant Whitefield
[8] The first ground of appeal is that the Sheriff in her written judgment completely ignored the evidence of one of the witnesses for the respondent, Police Sergeant Whitefield. The parties were agreed that that officer gave evidence before the Sheriff. There was no official record of the evidence. A curious feature of the case is that no one who was present at the hearing of the appeal had been present at the proof and neither side had any note of what Sergeant Whitefield had said when he was in the witness box. It was not disputed, however, that, in the words of the note of appeal, he 'spoke to the decision to withdraw and refuse the applicant's certificates.' It was also agreed that no objection had been taken to the relevancy of his evidence. Thus it must be assumed that he gave relevant evidence about the decisions to revoke the shot gun certificate and to refuse to grant a firearm certificate. The Sheriff, however, does not mention him at all. She writes:'For the respondent I heard evidence from Inspector Duncan, a very experienced police officer, who happened to witness the road traffic accident caused by the applicant on 29 October 2002 in Stockbridge, Edinburgh, and from Police Constable Ross who carried out subsequent investigations.'
The respondent's counsel pointed by contrast to the careful way Sheriff Mackinnon had considered evidence from a police officer relative to the making of the decisions under appeal in Lubbock v Chief Constable, Lothian and Borders Police (Jedburgh Sheriff Court, 18 June 2001, unreported). The Sheriff in the present case had focused on the danger posed by the applicant at the time of the accident, but not at any time thereafter. The evidence of the officer at its lowest might have had a material bearing on the way she had exercised her discretion.
[9] The applicant's counsel valiantly argued that the Sheriff's failure to refer to Sergeant Whitefield's evidence did not matter. He submitted that that officer's evidence had been merely one factor which the Sheriff had been entitled to take into account and to which she had been entitled to attach such weight, if any, as she saw fit. Counsel pointed out that, as in Allardice v Wallace 1957 SLT 225, we did not and could not have the evidence and the appeal court was bound by the Sheriff's findings in fact. He also cited Meikle v Chief Constable of Strathclyde Police (Sheriff Principal Kerr, QC, Paisley Sheriff Court, 7 May 2003, unreported) at p 11. Counsel did not dispute that the officer had given evidence as to the manner in which the respondent's decisions had been reached and as to his attitude to matters of public policy consequent on the applicant's drink-related driving offence. However, what was important before the Sheriff was the fact that the decisions had been reached, not the manner in which they had been reached. Also, in so far as the applicant's attitude to the issue of public safety was a matter for the Sheriff to consider in the exercise of her discretion, she had covered that in the note appended to her interlocutor where she said that his grinning at the time of the accident was 'an habitual or nervous expression rather than a reflection of a lack of responsibility'. [10] I accept that this Court is bound by the Sheriff's findings in fact. Her judgment may nevertheless be set aside if it is demonstrated that in reaching her decision she has left out of account a relevant consideration. It is clear that the evidence of Sergeant Whitfield was relevant to the question whether each of the respondent's decisions should be sustained. The Sheriff was therefore bound to consider it, state what weight she attached to it and explain her reasons for attaching to it that degree of weight. If indeed she attached no weight to it, it was incumbent on her to explain why. By altogether ignoring it in her judgment she left a relevant consideration out of account. That is an error of law, and on that ground alone her judgment must be set aside. It may be added that the Sheriff's failure to refer to the officer's evidence was more than a formal omission. He is said to have spoken to the respondent's view of public policy relative to the relevance of drink-related driving convictions to his decisions; and it is significant that, as will appear later in this judgment, the Sheriff misdirected herself in law on that matter.The revocation of the shot gun certificate
[11] While the Sheriff's failure to deal with the evidence of Sergeant Whitefield is a sufficient reason for recalling her interlocutor, I shall state my views on the remaining grounds of appeal. As to the Sheriff's decision relative to the revocation of the shot gun certificate, the respondent's counsel submitted that she had applied the wrong test. She should have considered the issue of danger to the public safety or to the peace separately from the question whether the certificate should be revoked in the exercise of discretion. She had failed to appreciate the significance of the applicant's drink-related driving conviction: Luke v Little 1980 SLT (Sh Ct) 138; Chief Constable of Essex v Germain, Times Law Reports, 15 April 1991; Grieve v Chief Constable, Lothian and Borders Police 1993 SLT (Sh Ct) 6. [12] The applicant's counsel submitted that the Sheriff had fully considered the evidence and had reached a conclusion which she had been entitled to reach. She had been able to consider evidence which had not been available to the respondent, by virtue of section 44(3) of the 1968 Act, as substituted by section 41(1) of the 1997 Act. [13] In my opinion it is clear that the Sheriff has failed to identify and apply the proper test. That is evident from her finding in fact and law no 1, which is in these terms:'(1) The applicant is a fit and proper person to hold a shotgun [sic] and it not being dangerous to the public safety or the peace to enable him to possess a shotgun the applicant is entitled to the restoration of his shotgun certificate.'
This finding in fact and law echoes the applicant's first plea-in-law. It also echoes the submission made to the Sheriff on behalf of the applicant, which she records thus:
'It was contended for the applicant that he was a fit and proper person to hold both a shotgun licence [sic] and a firearms [sic] certificate on the following grounds.'
That, however, is not the test. The test is to be found in section 30C(1) of the 1968 Act, as substituted, which is set out in paragraph 5 above. As it applies to this case it reads:
'(1) A shot gun 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 [...] cannot be permitted to possess a shot gun without danger to the public safety or to the peace.'
Whether the holder is 'a fit and proper person to hold a shot gun certificate' does not form any part of this test. The statutory test is twofold. The first question is whether the chief officer of police is satisfied that the holder cannot be permitted to possess a shot gun without danger to the public safety or the peace. If that question is answered in the affirmative, the chief officer of police is not bound to revoke the licence: section 30C(1) does not say that he 'shall' do so, but that he 'may' do so. Thus there is a second question: whether there are nevertheless other considerations which in his judgment outweigh that perception of danger and lead him in the exercise of his discretion not to revoke the licence. (See Meikle at page 12.)
[14] The Sheriff's approach to the issue of danger, at pages 8-9 of her note, appears to me to be confused. She has noted the danger posed by the applicant at the time of the road traffic incident on 29 October 2002 and has immediately gone on to take into account matters that might be relevant to the second question, without considering the issue of danger separately from these matters. In relation to that issue she has overlooked the way the matter is focused in the respondent's pleadings, at the end of answer 4:'Explained and averred that the circumstances of the incident leading to the applicant's conviction showed a disregard for public safety and an awareness of how his behaviour impacts on his right to hold a firearm or shot gun certificate.'
It is unfortunate that the Sheriff has not considered that critically important averment. Its reference to the applicant's 'awareness' is related to the respondent's averment in answer 3 that after the road traffic incident the applicant refused to take a breath test, stating that he would not do so because he did not wish to lose his shot gun certificate. Remarkably, the Sheriff has failed to make a finding in fact one way or the other on that matter. She has, however, found as a fact, in finding 9:
'At the time of the accident the applicant appeared more concerned about the effect on his gun licences than about the accident itself.'
She also refers at page 6 of her note to the applicant's 'sole apparent concern being for his gun licence [sic] and firearms [sic] certificate rather than the potential dangers of the accident'. She has nevertheless failed to appreciate the significance of that: it demonstrated the applicant's awareness of the effect of his behaviour on his entitlement to hold a shot gun or firearm certificate and his nonchalant attitude to the irresponsible use of a car. He knew of the possible effect on his licences, and decided to take the risk of driving when he was drunk. The Sheriff observes at page 9, 'The road traffic accident was not in any way related to guns', but that is to miss the point. That observation also indicates that the Sheriff has misdirected herself in law, for the following reason.
[15] For many years chief officers of police, with the approval of the courts, have equiparated irresponsibility when in charge of a motor vehicle with irresponsibility when in charge of a shot gun or firearm. Like them, a motor vehicle is a potentially lethal instrument. That this comparison is frequently made by chief officers of police and is judicially approved is very clear from the cases cited to the Sheriff: Luke v Little, Lubbock v Chief Constable, Lothian and Borders Police and Meikle v Chief Constable of Strathclyde Police. There is further authority to the same effect, including Chief Constable of Essex v Germain and Grieve v Chief Constable, Lothian and Borders Police. As appears from Germain's case, a chief officer of police deciding whether to revoke a shot gun licence is entitled to take into account irresponsible conduct by the licence-holder not involving a shot gun. In that case the Chief Constable had revoked the licence following the holder's second drink-driving conviction within five years. The Queen's Bench Divisional Court upheld an appeal by the Chief Constable from the decision of the Crown Court to restore the licence. The report reads in part:'Lord Justice Stuart-Smith said the Crown Court had wrongly considered itself bound by Ackers v Taylor [1974] 1 WLR 405 to take into account only conduct arising out of misuse or abuse of a shot gun.
'The chief constable was entitled to take the view that the drink-driving convictions revealed irresponsible and uncontrolled behaviour making the licence holder unsuitable to have a shot gun under section 30(2) of the Firearms Act 1968.'
Section 30(2) of the unamended 1968 Act is in essentially the same terms as section 30C(1), substituted by the 1997 Act. In my opinion the passage quoted is entirely consistent with the law and practice in Scotland.
[16] I consider, accordingly, that the Sheriff's decision relative to the revocation of the shot gun licence is so vitiated by errors of law that it cannot stand.
The refusal to grant the firearm certificate
[17] Here again the respondent's counsel submitted that the Sheriff had applied the wrong test. She had not dealt separately with the matters specified in the statute. She had also given certain matters undue weight. The applicant's counsel, on the other hand, submitted that she had considered each of the matters specified. He also submitted that this Court was not entitled to interfere with the Sheriff's findings in fact. [18] In my opinion the Sheriff has not identified and applied the correct test. The relevant finding in fact and law again echoes the applicant's plea-in-law and is in these terms:'(2) The applicant is a fit and proper person to be entrusted with a firearm and it not being dangerous to the public safety or the peace to enable him to possess a firearm the applicant is entitled to renew his application for a firearms [sic] certificate.'
The statutory test is set out in section 27(1) of the 1968 Act as substituted by section 38 of the 1997 Act and is quoted in paragraph 6 above. Read short, it provides that the chief officer of police must grant a firearm certificate (he has no discretion) if he is satisfied as to three matters: (a) that the applicant is fit (not 'a fit and proper person') to be entrusted with a firearm; (b) that he has good reason for having the firearm in his possession; and (c) that in all the circumstances he can be permitted to have it in his possession without danger to the public safety or to the peace.
[19] While the Sheriff quotes section 27(1), as substituted, in her judgment, she also quotes in its entirety section 30A, which is concerned with the revocation of firearm certificates. It is difficult to understand why the Sheriff apparently considered section 30A to be relevant. At the foot of page 10 she states that the applicant was 'certainly not of unsound mind' as if considering a test prescribed by section 30A(2)(a). She does not deal specifically and separately with each of the matters (a), (b) and (c) in section 27(1). She indicates first that she is satisfied as to (b), which was not in dispute. The first full paragraph on page 11 may be intended to indicate that she is satisfied as to (a). The penultimate paragraph appears to be an assertion that she is satisfied as to (c). She does not, however, relate her observations to (a) or (c) and her thinking is not clearly explained. These considerations, together with the misstatement of the test in the second finding in fact and law, lead me to conclude that the Sheriff's decision in relation to the refusal of the firearm certificate cannot be supported.The 'balancing exercise'
[20] The respondent's counsel also addressed me on a further ground of appeal: that the Sheriff in the exercise of her discretion had 'erred in weighing the relevant considerations in the balancing exercise by giving undue weight to' certain specified matters and 'insufficient weight' to others. He did not address me on the last ground of appeal, which was that finding in fact 12 should be amended. That finding states:'(12) The applicant consulted his general medical practitioner concerning his drinking and was admitted for one month to the Priory, Glasgow. As a result he no longer drank to excess. He employs whisky tasters to assist in his business.'
The final ground of appeal was that the sentence, 'As a result he no longer drank to excess' should be deleted. Instead of maintaining that ground of appeal, however, the respondent's counsel submitted that that finding was not sufficient to outweigh the evidence of the danger caused by the applicant's irresponsibility when he was in charge of his car on the occasion of the accident.
[21] The finding that the applicant no longer drank to excess was based on his own evidence and the evidence of a Mr Elvy. The Sheriff describes Mr Elvy as a chartered surveyor who had known the applicant for many years and was the part-time factor on the applicant's family estate. They were the only witnesses for the applicant. The Sheriff does not say whether she considered them to be credible and reliable witnesses. She also had before her a letter from a locum doctor in the medical practice to which the applicant's general practitioner belonged to an officer in the Licensing Section of Lothian and Borders Police. The letter (no 5/10 of process) is dated 6 November 2002 and states in part:'This man has been registered with this practice since 1995. He attended the surgery at the end of April 2002 admitting to an alcohol problem, which may have been worsened by the recent death of his father. Liver function tests confirmed some derangement, and it is likely that his alcohol intake is having some impact on his liver. He was therefore referred to Dr Tierney, clinical psychologist at the Keil Centre, Edinburgh.
'He came to see me again on 30 October still having problems with persisting alcohol abuse. A trigger for this attendance had been a recent drink/driving offence. He requested referral to a private specialist unit for his problems in The Priory, Glasgow, run by Dr Stewart.
'Other than these recent problems he has no other relevant past medical history which may influence his application for Firearm Certificate.'
That letter had been written almost a year prior to the proof before the Sheriff. The Sheriff did not have before her any other evidence relative to the applicant's drinking. In particular there was no independent up-to-date medical evidence about the applicant's present condition and no evidence, other than the applicant's and Mr Elvy's, as to his current drinking habits. Other than in finding 12, the Sheriff deals with that matter in a somewhat tentative way. In her note she writes:
'Both from his own [the applicant's] and Mr Elvy's evidence it appeared that he now drank sensibly, if at all, on social occasions.' (Page 8)
'Since the accident, however, the applicant has taken steps to deal with his heavy drinking, was treated in "The Priory", Glasgow, and, was, apparently, on social occasions now drinking soft drinks or moderately.' (Page 11)
'(4) The applicant assists Mrs Walker [his mother] in vermin control and in accompanying commercial shooting parties on the [family] estate. The latter is a valuable resource for the estate.'
Counsel pointed out that since the shooting parties were commercial, members of the public would be present. He also observed that they were 'social occasions' and made an optimistic appeal to judicial knowledge of the nature of the refreshments available at such events; but I consider it preferable simply to note that there is no finding on that matter. It is more important to consider finding 7:
'(7) By April 2002 the applicant suffered from stress in his business and at home. He began to drink alcohol to excess and in particular following his father's death in March 2002.'
Result
[25] Since the respondent's decisions are to stand, this appeal should be disposed of by the sustaining of pleas-in-law which reflect his grounds of decision. The respondent's pleas-in-law, however, simply negative the applicant's and thus, like the applicant's, do not refer to the appropriate test relative to each of the decisions. I have therefore amended each plea-in-law ex proprio motu to reflect the statutory test which the applicant failed to satisfy and to which appropriate reference is made in the letters from the duly authorised Assistant Chief Constable intimating the decisions on the applications. I have sustained the respondent's pleas-in-law as so amended and allowed the appeal. [26] The parties were agreed that expenses should follow success and that the appeal should be certified as suitable for the employment of junior counsel. I have no hesitation in so certifying. The respondent's counsel in moving for certification stated that not only was there a degree of complexity in the matters discussed, but also the decision under appeal had given rise to some anxiety on the part of the Police relative to their approach to applications such as the present. Hitherto they had been guided by Sheriff Mackinnon's decision in Lubbock v Chief Constable, Lothian and Borders Police (Jedburgh Sheriff Court, 18 June 2001). Counsel invited me to give such guidance as I thought fit. Since I have not been addressed on what the contents of such guidance might be, I think I should confine myself to explaining my reasons for allowing the present appeal. I hope, however, that the reasoning in this judgment, and in particular in paragraph 15, may be of assistance.