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Cite as: [2004] ScotSC 65

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SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE
B308/03

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

in the cause

ADAM ALEXANDER GORDON

Pursuer and Respondent

against

WILLIE BALD, ASSISTANT CHIEF CONSTABLE, TAYSIDE POLICE

Defender and Appellant

__________________

Act: Cullen QC, instructed by Thorntons, Solicitors, Dundee

Alt: Stuart, Advocate, instructed by Miller Hendry, Solicitors, Perth

PERTH, 28 September 2004. The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 21 January 2004 complained of; certifies the appeal as suitable for the employment of senior and junior counsel; finds the defender and appellant liable to the pursuer and respondent in 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 report.

NOTE:

[1] This is an appeal by the Assistant Chief Constable (the defender) from a decision of the sheriff in a summary application under the Firearms Act 1968 as amended (hereinafter referred to as "the 1968 Act"). In that application the pursuer sought recall of the decision of the defender, intimated by letter dated 19 May 2003, revoking the pursuer's firearm and shotgun certificates.

Statutory Framework

[2] Section 30A(2) of the 1968 Act, 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, amongst other things, 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.

[3] 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.

[4] 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.

[5] 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.

[6] 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.

Factual Background

[7] The defender's decision to revoke the pursuer's certificates was taken in view of the fact that the pursuer had on three occasions been convicted of a contravention of section 5(1)(a) of the Road Traffic Act 1988, that is driving a motor vehicle with more than the permitted level of alcohol in his breath, blood or urine. Particular regard was also had to the fact that the pursuer had chosen to ignore advice given following each of the two earlier convictions of the need to address his behaviour and of the possible consequences for his firearm and shotgun certificates if he should come to the adverse attention of the police in the future. On this basis the defender concluded that the pursuer could no longer be permitted to possess firearms and shotguns without danger to the public safety or to the peace.

[8] In the appeal to the sheriff the facts of these convictions and the warning given as to the pursuer's future behaviour were not in dispute. The sheriff made appropriate findings in fact regarding these matters. There was other evidence however, from the pursuer and two others, Messrs Cheape and Nicol, on the basis of which the sheriff made the following findings in fact:

The appellant has used firearms for more than twenty years. He is a very good shot. He is very responsible when in possession of firearms. He owns a number of firearms and shotguns. These items have a value of approximately forty thousand pounds.

He uses the firearms for vermin control on his farm. On occasions he uses a firearm to put down livestock which is seriously injured. He further uses the firearms when he is invited on a shoot or arranges a shoot on his farm. He attends such shoots infrequently.

No complaint has ever been made to Tayside Police as to the use of firearms by the Appellant.

[9] The pleas in law of each of the pursuer and the defender show that the issue presented to the sheriff was whether the pursuer could not be permitted to possess firearms and shotguns without danger to the public safety or to the peace, thus echoing the provisions of sections 30A(2)(b) and 30C(1) of the 1968 Act. In addressing himself to that question the sheriff had regard to a decision of Sheriff Principal Nicholson in Evans v Chief Constable, Central Scotland Police 2002 SLT (Sh Ct) 152. He found support in that case for the propositions (a) that regard could be had to past incidents which did not involve the use or threatened use of a firearm, (b) that a history of misuse of a firearm is not a necessary ingredient in deciding whether a danger to public safety or to the peace would be threatened, and (c) that the relevance of past conduct had to be assessed in terms not of whether there is a risk of future conduct of any kind but rather whether there is a risk of future conduct involving the use or threatened use of a firearm.

[10] In light of these propositions, which were accepted by counsel on both sides, the sheriff then considered the evidence and concluded that it had not been established that the pursuer could not be permitted to possess firearms and shotguns without danger to the public safety or to the peace. He accordingly allowed the pursuer's appeal and restored the certificates in question. The defender now appeals against that decision.

Grounds of Appeal

[11] The grounds of appeal advanced on behalf of the defender and appellant and insisted on at the appeal hearing can be summarised as follows:

The true and only reasonable conclusion that could have been reached on the basis of the whole evidence was that the pursuer and respondent's admitted recent and repeated criminal misconduct demonstrated that his continued holding of firearms and shotgun certificates endangered public safety or the peace. The sheriff's failure to reach that conclusion amounted to an error in law.

The sheriff had erred in law in holding that evidence given by the pursuer and Messrs Cheape and Nicol had not been countered by any evidence led by the defender and appellant. The evidence of the criminal convictions and his ignoring of warnings amounted to counter evidence.

The sheriff had misdirected himself in law by failing to attach any significance to the fact that a person who has shown that he is prepared to be irresponsible with a car may be assumed to be equally willing to behave irresponsibly with a gun when under the influence of alcohol.

The sheriff had erred in law in thinking that the Chief Constable should have carried out some further investigation rather than rely simply on the fact of the convictions.

The sheriff had erred in law by apparently having regard to evidence that the pursuer had supposedly stopped drinking without making a finding in fact to that effect.

Having regard to the overriding purpose of the legislation, no reasonable sheriff could have come to the conclusion reached by the sheriff on the basis of the evidence he heard.

Submissions for Defender and Appellant

[12] In opening his submissions senior counsel for the defender and appellant recognised that an appeal to the sheriff principal was available only on a point of law. He submitted that the legal question in proceedings of this nature was whether the pursuer could not be permitted to possess firearms and shotguns without danger to the public safety or to the peace. That was a pure question of law because that was the statutory test. He submitted that if the true and only conclusion to be drawn from the evidence was that this test was satisfied it would be an error of law to hold that it was not. In support of this argument he referred to the speech of Lord Radcliffe in Edwards v Bairstow 1956 AC 14. In that case it had been argued that there was a divergence between the approach of the English and Scottish courts in what amounted to an error of law, an argument which was rejected by Lord Radcliffe. His summary of what he perceived to be the common position in both jurisdictions was in these terms (p 36):

"If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination."

[13] In expressing these views he also passed comment on two Scottish cases as follows:

"Lord Normand's judgment in the First Division of the Court of Session in Inland Revenue Commissioners v Fraser has said almost everything that needs to be said on this branch of the subject. "In cases," he says, "where it is competent for a tribunal to make findings in fact which are excluded from review, the Appeal Court has always jurisdiction to intervene if it appears either that the tribunal has misunderstood the statutory language - because a proper construction of the statutory language is a matter of law - or that the tribunal has made a finding for which there is no evidence or which is inconsistent with the evidence and contradictory of it." and that, in its turn, appears to me to propound the same principle as that adopted by Lord Cooper in Inland Revenue Commissioners v Toll Property Co Ltd where he says: "Keeping in view the nature of the transaction, the purpose with which the company was floated and the objects which were prescribed in the memorandum of association, and the whole of the other circumstances which I have briefly summarized, it seems to me that the majority of the commissioners were not entitled to reach the conclusion which they did, that they must have misdirected themselves in law, and that the true and only reasonable conclusion on the facts found is the conclusion reached by the dissenting commissioner."

[14] Counsel submitted that the sheriff had lost sight of the fact that one must look at the totality of the evidence. He advocated caution with the sort of character evidence that had been led from Messrs Cheape and Nicol. It was extremely difficult to undermine such evidence and it should be realised that these witnesses would have been selected precisely because they would give evidence supportive of the pursuer. It was the sort of evidence which should have limited value compared with the objective evidence of the convictions. While counsel accepted that the convictions were not conclusive in the matter he submitted that other evidence put in the balance against it would have to be unusually weighty to overturn the inference to be drawn from them.

[15] In considering the inference to be drawn from the convictions counsel referred to Luke v Little 1980 SLT (Sh Ct) 138. He drew particular attention to the sheriff's view in that case that in "preventive justice" the correct course is not to wait until the applicant actually does the wrong thing but to gauge the likelihood that he may do the wrong thing and to act accordingly. In that case the sheriff had endorsed as sound the Chief Constable's "equation of irresponsibility with a car with irresponsibility with a gun". Reference was also made to Spencer-Stewart v Chief Constable of Kent 1989 Cr. App Rep 307, Evans sup.cit. , Meikle v Chief Constable of Strathclyde Police unreported Sheriff Principal Kerr 7 May 2003 and Walker v Chief Constable of Lothian and Borders Police unreported Sheriff Principal Macphail 11 May 2004, all of which contained expressions of opinion to a similar effect. He submitted that there was no indication that the sheriff had had proper regard to the approach exemplified in these cases.

[16] In relation to Walker v Chief Constable of Lothian and Borders Police counsel seemed to suggest that the sheriff principal in that case had gone so far as to say that as a matter of law drink driving will be sufficient to justify revocation of a firearm certificate. The sheriff principal's opinion seemed to be to the effect that the test in Luke v Little had stood the test of time and should not be departed from unless for sound reasons

[17] Counsel also criticised what he said was the sheriff's failure to take into the account as a material consideration that the defender had been satisfied that the test for revocation of the licences had been met. Reference in this regard was made to the unreported decision of the sheriff of Oban in Paterson v Chief Constable, Strathclyde Police 19 March 2001 at page 9. He submitted that the fact that the police have come to a particular view is a factor that should feature in the sheriff's assessment of the evidence. In responding to the argument advanced by his opponent he accepted that the appellate court cannot interfere with the sheriff's exercise of weighing the evidence unless that exercise has produced a decision which is plainly wrong, at which time it becomes a matter of law.

Submissions for pursuer and respondent

[18] Counsel for the pursuer and respondent emphasised that an appeal was only open on a point of law. While he did not challenge anything that was said by Lord Radcliffe in Edwards v Bairstow, he submitted that the issue argued before the sheriff was essentially an issue of fact. He submitted that the weight to be attached to different pieces of evidence was a matter for the sheriff and it was not open to me to substitute my view on such questions unless it could be shown that the sheriff had totally misused the evidence and reached a conclusion that was plainly wrong. There were no such circumstances in this appeal.

[19] He criticised the appellant's first ground of appeal as effectively inviting a conclusion that, whatever the other circumstances, the fact of the convictions would always justify revocation. Such an approach did not sit easily with a scheme in which the sheriff had to consider the matter of new and with the benefit of evidence that the defender might not have had. Having heard all the evidence the sheriff had simply been unwilling to draw the inference that might arise from a consideration of the convictions alone.

[20] In relation to the second ground of appeal he submitted that this ground proceeded upon a misunderstanding of what the sheriff was referring to. He had not ignored the evidence of the convictions but was simply referring to the fact that the evidence of Messrs Cheape and Nicol and not been directly contradicted.

[21] So far as the third ground of appeal is concerned counsel submitted that the equation made in Luke v Little between irresponsibility with a car and irresponsibility with a gun was merely a working hypothesis and one could not automatically assume in every case that that equation held good. Whether or not the inference of irresponsibility with a gun could be drawn from the fact of the convictions would depend upon the weight to be attached to circumstances that rebutted that inference and that was a matter for the sheriff. The sheriff accepted the evidence of the pursuer and Messrs Cheape and Nicol and his finding in fact in respect of that evidence could not be interfered with. The nub of the appeal therefore was whether, given the findings in fact, it could be said that the sheriff's conclusion was so inconsistent with and contradicted by those findings as to justify the view that it was plainly wrong. In his submission that could not be said to be the case in this appeal. The evidence from the pursuer and the witnesses adduced on his behalf went to the heart of the statutory question that the sheriff required to address.

Discussion

[22] It seems to me that the main thrust of the appellant's argument depends firstly upon the application of the approach set out in the speech of Lord Radcliffe in Edwards v Bairstow and secondly on the weight to be attached to the approach of the sheriff in Luke v Little. That being so I think it would be helpful firstly to address what might be seen as the subsidiary points in the appeal.

[23] In relation to the second ground of appeal I am unable to accept the interpretation of the sheriff's judgment that is advanced by counsel for the appellant. The "matters" to which the sheriff was referring when he said that the evidence of the pursuer and Messrs Cheape and Nicol had not been countered were those set out at the start of that paragraph, namely the pursuer's use of firearms, his attitude to them and issues of safety arising from his possession of firearms. When one looks at his judgment as a whole it is a distorted view to hold that the sheriff was thereby ignoring the evidence of the criminal convictions. The preceding paragraph in his note asks the rhetorical question "what is the evidence justifying the revocation?" to which he provides the answer "there clearly are the criminal convictions and the circumstances behind these." He then goes on to say that he does not think that these are conclusive and plainly puts the evidence of the pursuer and Messrs Cheape and Nicol on the other matters to which I have referred in the balance against them. In my view it is perfectly clear from this approach that the sheriff saw the fact of the convictions as a contradiction of that evidence, but ultimately he attached greater weight to the one rather than the other. It follows that in my view the second ground of appeal has no merit whatever.

[24] In relation to the fourth ground of appeal, I think counsel for the pursuer and respondent was well founded in his submission that the sheriff's observation with regard to the need for the Assistant Chief Constable to make further investigations was not material to the decision that he reached. In my view therefore, whether the sheriff's observation is sound or not, it cannot provide a ground for interfering with the sheriff's decision. Counsel for the defender and appellant emphasised the practical difficulties of carrying out the sort of investigation envisaged by the sheriff. Whether that is so or not, the provisions of section 44(3) of the 1968 Act clearly envisage that there may be matters put to the sheriff which have not, for whatever reason, been available to the defender. The sheriff is considering the matter of new and in these circumstances I doubt the relevance of any issue about whether the defender should have carried out further investigations before reaching his own decision on the matter. So far as concerns new material that is put before the sheriff one would expect to find some basis in the pleadings for such material and this would afford notice to the defender of the line of evidence that was likely to be pursued and afford him the opportunity to see whether any evidence could be gathered to contradict that line of evidence, in much the same way that parties to any litigation might do.

[25] In relation to the fifth ground of appeal, I can find no support for the view that, in reaching his decision, the sheriff did have regard to the evidence that the pursuer had supposedly stopped drinking. While he has narrated the pursuer's evidence to that effect, as part of his narrative of the evidence generally, he does not include it as a factor in his reasoning set out at page 5 of the judgment.

[26] I now return to what I perceive to be the principal grounds of appeal. In doing so I think it is important to identify the proper scope of the speeches in Edwards v Bairstow. In that case the General Commissioners had found that the transaction in question was not an adventure in the nature of trade. A question arose whether that finding was a pure finding in fact or whether it was a determination of a question of law. In the view of Viscount Simonds (at page 29) it was unnecessary to resolve that question since, even if it was a pure finding of fact, it may be set aside on the ground either that the Commissioners acted without any evidence or that the primary facts did not justify the inference or conclusion which the Commissioners had drawn. In the passage from Lord Radcliffe's speech already referred to, it is again emphasised that the appeal court may intervene where "the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal."

[27] It is important to emphasise however that in reaching its conclusion in that case there was no question of the court disturbing the primary facts found. In those appeals which are confined to a point of law, in my opinion it is not open to the appellate court to re-examine the evidence and to disturb the sheriff's findings of primary fact based on that evidence. I am fortified in that view by the expressions of opinion to a similar effect in Meikle v The Chief Constable, Strathclyde Police and Walker v The Chief Constable, Lothian and Borders Police. In the former case Sheriff Principal Kerr held himself bound to accept the sheriff's finding that the appellant was generally untrustworthy and of somewhat unsavoury character. In the latter case Sheriff Principal Macphail stated in terms (para 10) that he was bound by the sheriff's findings in fact.

[28] I recognise of course that in Edwards v Bairstow one also finds support for the view that the court can set aside a finding in fact if there is no evidence to support it, but in my opinion that must be seen in the context of what I take to be the well established principle that, if the evidence has not been recorded, the sheriff's primary findings in fact are not open to review and are binding on the appellate court. In the course of argument counsel for the appellant suggested that there was no need for resort to a record of the evidence since the sheriff's narrative of the evidence in his note was a sufficient indication of the evidence led. I cannot agree. While there is perhaps scope in some circumstances for parties to agree what was the evidence, the sheriff's narrative is merely a summary of the evidence and in my opinion an inadequate basis upon which an appellate court can be invited to reach a different view from that of the sheriff in the findings in fact that he has made.

[29] This conclusion is immaterial to my decision since, in fairness to counsel for the appellant, I did not understand him ultimately to challenge any of the sheriff's findings in fact but rather confined himself to the argument that the findings in fact lead to only one reasonable conclusion, namely the opposite to that reached by the sheriff. That also was the approach of the sheriff principal in Meikle v Chief Constable, Strathclyde Police, who felt bound to accept the findings in fact of the sheriff while holding that it was a legitimate question in the appeal whether those findings afforded a sufficient legal basis for the sheriff's ultimate conclusion that the appellant's possession of a shotgun constituted a source of potential danger to the public safety or to the peace.

[30] In finding in fact 7 the sheriff has found in terms that the pursuer is very responsible and particular as to safety requirements when in possession of firearms. This reflects the evidence led from the pursuer and Messrs Cheape and Nicol to which I have already referred. As I have already indicated, the sheriff plainly thought that that conclusion weighed more heavily in the balance than the inference to be drawn from the convictions. His "hesitation" in coming to his conclusion is simply a reflection of how finely balanced in his mind were these competing factors. When seen in this light it seems clear to me that the essential feature of the appellant's criticism of the sheriff's decision is his failure to attach what the appellant sees as the appropriate weight to the competing factors.

[31] Central to this argument is the submission that the sheriff has failed to appreciate the significance of Luke v Little. As a subsidiary argument it is suggested that he also failed to have regard to the views of the defender in the decision that he took. In this latter respect I think such an argument follows from a far too narrow view of the sheriff's judgment. The sheriff recorded the tenor of the evidence of Ms Fiona Windmill, who was in effect representing the view of the defender, and has also noted the submission made to the effect that weight should be given to the reasoning of the Assistant Chief Constable. In these circumstances I do not think it can reasonably be suggested that the sheriff did not have regard to the views of the defender. Because the sheriff has not aligned himself with those views does not mean he has not had regard to them.

[32] In examining what is the true effect of Luke v Little I think it is important to remember the context in which the sheriff in that case endorsed the equation of irresponsibility with a car with irresponsibility with a gun. The context was that of a consideration of preventive justice and the need for an assessment of the likelihood that an applicant might do the wrong thing in the future. In that context it seems clear to me that what the sheriff was endorsing was the notion that one can infer the likelihood of future irresponsibility with a gun from past instances of irresponsibility with a car. I have no difficulty with the proposition that such an inference can be drawn and there are many other instances of judicial approval for such an approach. But it remains no more than an inference and as such is capable of rebuttal by other evidence to a different effect. If Sheriff Principal Macphail is saying anything different in Walker v Chief Constable, Lothian and Borders Police I would respectfully disagree. However, when one looks at paragraph 15 of his judgment in its proper context, it does seem to me that the propositions derived from it by counsel for the appellant are over stated. I do not think that the sheriff principal was saying anything more than that the equiperation of irresponsibility with a car with irresponsibility with a gun had long been recognised as a legitimate one to make. It says nothing however about whether it is a rebutable inference or, if it is, what sort of evidence would be required to rebut it.

[33] It follows therefore that the sheriff's approach is entirely consistent with that taken in Luke v Little, since he recognises (at page 3 of his note) the inference to be drawn from the convictions but also recognises that that inference is not conclusive. While at times counsel for the appellant seemed to elevate it to the status of an irrebutable inference he disclaimed that proposition when it was suggested that that was the effect of his submission.

[34] In its essentials what one is left with therefore is on the one hand a past history of irresponsibility with a car and on the other a past history of responsibility with a gun (finding in fact 7) and it is from these two primary facts that the sheriff then required to make some assessment about the likelihood of the pursuer and respondent posing a danger to public safety or the peace from his possession of a firearm or shotgun in the future. The weight that he attached to each of these facts was essentially a matter for him and, as counsel for the appellant accepted, the appellate court cannot interfere with that balancing exercise unless it produces a result that is plainly wrong.

[35] In its generality I recognise the force of and am persuaded by the submission (see para. 14 above) that one should treat with caution the sort of evidence given by Messrs. Cheape and Nicol. However, the sheriff has expressly referred to a submission on behalf of the defender that he should exercise caution in assessing the evidence of the pursuer's supporting witnesses and there is nothing to suggest that he has not had regard to this submission. In the end of the day he found that evidence credible and reliable and has made what in my view is an important finding in fact (FF 7) that is material to the determination in law at which he arrived. That finding of past responsibility with a gun seems to me to run directly contrary to the inference that it was open to the sheriff to draw from the convictions. It does not seem to me therefore that the factual circumstances of this case lead inevitably to only one conclusion, in the way that they did in Edwards v Bairstow.

[36] In my judgment the sheriff has clearly understood the statutory test that he required to address and has weighed in the balance the competing factors relevant to that test. In a statutory scheme which restricts the present appeal to one on a point of law only it matters not whether I would have reached a different view, provided the sheriff has not reached a conclusion which, on the basis of the findings in fact, was plainly wrong. That is a demanding test for an appellant to satisfy and, in light of the foregoing discussion, I am unable to hold that it has been met. It follows that this appeal must therefore be refused.

[37] Parties were agreed that the expenses of the appeal should follow success. There was some consensus with regard to the certification of the appeal as suitable for the employment of counsel, the only reservation expressed being in relation to the appellant's employment of senior counsel. The appeal does raise issues of importance and I think the employment of senior counsel was justified.