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Cite as: [2005] ScotSC 57

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Davis v. Central Scotland Police [2005] ScotSC 57 (05 September 2005 SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

B116/04

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

in the cause

MICHAEL GERARD DAVIS

Pursuer and Appellant

against

THE CHIEF CONSTABLE, CENTRAL SCOTLAND POLICE

Defender and Respondent

__________________

Act: Davies, Advocate, instructed by George Mathers & Co, Aberdeen

Alt: Stuart, Advocate, instructed by Stirling Council Legal Services

ALLOA, 5 September 2005. The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 16 December 2004 complained of; certifies the appeal as suitable for the employment of junior counsel; finds the pursuer and appellant liable to the defender 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 against the 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 appellant craved the court to reverse and set aside the decision of the respondent to revoke the appellant's shotgun certificate. The sheriff refused to do so and instead upheld the decision to revoke.

Statutory Framework

[2] Section 30C(1) of the 1968 Act 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] Section 30C(2) provides that a person aggrieved by the revocation of a shotgun certificate may appeal against the revocation in accordance with section 44 of the Act.

[4] 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.

[5] 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.

[6] The respondent's decision was founded on an allegation that the appellant had indecently assaulted a 16 year old girl, firstly, by grabbing her round the waist, forcing her onto a bed and simulating a sex act and, secondly, by squeezing and fondling her breasts. The appellant denied this allegation and much of the hearing before the sheriff was taken up with this issue. In the result the sheriff found that such an assault had taken place. He then went on to consider the implications of that finding in relation to the appellant's holding of a shotgun certificate. Ultimately he found in fact and law that the appellant cannot be permitted to possess a shotgun without danger to the public safety or to the peace. The sheriff's reasons for reaching that conclusion are found in his note at paragraphs 37 and 38 and summarised in paragraph 39, which is in the following terms:

"I consider that on the evidence it is possible to draw the inference that Mr Davis is capable of extreme, unpredictable behaviour of a violent nature. He is capable of losing his normal sense of reason and to conduct himself irrationally, ignoring and even taking advantage of trust placed in him. He is capable of disregarding the impact on another person of his own personal conduct. In short I do not know the limitations of what Mr Davis is capable of. All of these concerns are capable of being related to his possession of shotguns and in that context leading to the further inference that it cannot be said that he can possess a shotgun without danger to the public safety or to the peace."

Submissions for appellant

[7] The sheriff's finding in fact and law is challenged on a number of grounds. Firstly, it is said that the sheriff inverted the onus of proof, although in the course of discussion in the appeal counsel for the appellant characterised the sheriff's error of law as involving misdirection as to the statutory test to be applied. Counsel for the appellant submitted that this was most evident in the penultimate paragraph (46) of the sheriff's note when he stated that he could not be satisfied that the appellant can be permitted to possess a shotgun without danger to the public safety or to the peace. It was submitted that that was not the proper question. The question was whether the sheriff was satisfied that the appellant could not be permitted to possess a shotgun without danger to the public safety or to the peace.

[8] Secondly, it was submitted that the sheriff's finding in relation to the assault could not by itself support the inference that the appellant could not be permitted to possess a shotgun without danger to the public safety or to the peace. There required to be other evidence which enabled one to "read across" from this incident without a shotgun to a conclusion that the statutory test was met. This submission was advanced under reference to Ackers v Taylor1974 1 WLR 405, Luke v Little 1980 SLT (Sh. Ct.) 138, Spencer-Stewart v The Chief Constable of Kent 1989 89 Criminal Appeal Reports 307, Evans v The Chief Constable, Central Scotland Police 2002 SLT (Sh. Ct.) 152 and Meikle v The Chief Constable, Strathclyde Police unreported Sheriff Principal Kerr 7 May 2003. It was submitted that the following propositions could be derived from these cases:

The future danger that must be contemplated in the application of the test in section 30C is danger arising out of possession of a shotgun - in effect that the appellant is likely to commit an offence involving the shotgun;

Mere conviction of an offence, or in this case the sheriff's finding that an assault was committed, is insufficient by itself to justify revocation and one must look beyond that finding for evidence of a danger to public safety or the peace;

The conduct founded on need not be violent conduct with a shotgun but it must be shown that there is a risk of violence or danger to the peace with a shotgun; and

There must be evidence to support a real risk or likelihood of danger arising. Mere speculation that there might be a danger would not be enough.

[9] Thirdly, it was submitted that there was no basis for the sheriff's inference that the appellant was capable of extreme unpredictable behaviour of a violent nature and in any event that manner of expression did not amount to a finding that the appellant was likely to behave in that way in the future.

[10] Fourthly, it was said that the sheriff could not properly have reached the conclusion that the appellant could not be permitted to possess shotguns without danger to the public safety or to the peace on the strength of one aspect of the evidence when set against the other findings in fact which demonstrate the appellant's exemplary character.

Submissions for respondent

[11] In responding to these criticisms counsel for the respondent submitted that the question of onus was largely irrelevant once all the evidence had been heard. He accepted that it would be a misdirection with regard to the correct statutory test if the basis of the sheriff's decision was that he could not be satisfied or if it had not been shown that the appellant can be permitted to possess a shotgun without danger to the public safety or to the peace. He acknowledged that what the sheriff had said in the penultimate paragraph of his note did not accurately reflect the statutory test of section 30C. He submitted however that, when one had regard to the judgment as a whole, it was clear that the phraseology of paragraph 46 of the note was mistaken but that the sheriff had clearly understood and applied the correct statutory test.

[12] In relation to what conduct was required to satisfy the statutory test it was not disputed that the conduct relied upon must be capable of yielding the conclusion that the appellant could not be permitted to possess a shotgun without danger to public safety or the peace. It was clear however that such conduct need not involve the use of a shotgun or indeed violence at all. He submitted that the sheriff's approach had been to view the appellant as a man who had lost control and behaved in an unpredictable and violent manner and that there was a risk that he might lose such control in the future, including whether he might behave in that way while in possession of a shotgun. The only question for me was whether that inference was open to the sheriff on the basis of the conduct that he found established. It was submitted that it plainly was.

[13] So far as concerned the assessment of the evidence for and against revocation that was a matter for the sheriff and provided that he properly addressed the evidence there was no ground for interference. Questions of the weight to be attached to one factor when set against another were entirely within the province of the sheriff and it was not an exercise with which I should interfere.

Discussion

[14] The statutory test that the sheriff required to address is plainly laid down in section 30C of the 1968 Act. He required to be satisfied that the appellant cannot be permitted to possess a shotgun without danger to the public safety or the peace. By contrast the sheriff's manner of expression in paragraph 46 of his note suggests on one view a slightly different question, namely has it been shown to his satisfaction that the appellant can be permitted to possess a shotgun without such danger? It was conceded by counsel for the respondent, rightly in my view, that it would not be a proper ground for a refusal of the appeal to him that the sheriff had addressed that question and answered it in the negative. In expressing his conclusion in those terms therefore the sheriff has opened the way for an argument that he has misdirected himself as to the statutory test.

[15] When one looks at the sheriff's judgment as a whole however I am satisfied that this manner of expression is a simple mistake and does not betray any fundamental misdirection as to the statutory test. His finding in fact and law correctly reflects that test and his analysis in the main body of his note makes it clear that he has understood and applied it. In particular, in paragraph 27, he addresses himself to the question whether the circumstances of the indecent assault warrant the inference that the appellant cannot be permitted to possess a shotgun without danger to the public safety or the peace. In paragraph 34 he states that he "must consider whether, from the actings on that one occasion, it can be inferred that the Appellant's possession of a shotgun would carry with it a danger to public safety or to the peace." While the wording of the last sentence of paragraph 39 (quoted in full above) is slightly different its meaning is not materially distinct from a statement that the appellant cannot possess a shotgun without danger to the public safety or the peace. It seems to me therefore that throughout his reasoning the sheriff has clearly had in mind the correct statutory test and his decision can be seen to be the product of the application of that test, notwithstanding the mistaken manner of expression in paragraph 46 of his note. It follows that the appellant's first ground of challenge must be rejected.

[16] Whether the statutory test is met in any case will depend on the particular circumstances of that case. It is not in dispute however that the danger to the public safety or the peace must be shown to be a danger related to the possession of a shotgun. In Evans v The Chief Constable, Central Scotland Police sup. cit. the sheriff principal put the matter this way:

"....the relevance of past conduct is to be assessed in terms not of whether there is a risk of future misconduct of any kind but whether there is a risk of future misconduct involving the use, or threatened use, of a shotgun."

[17] As the sheriff points out, under reference to that case and others, past conduct involving the use of a shotgun is not a necessary requirement before the statutory test can be met (see also Spencer-Stewart v The Chief Constable of Kent and Meikle v The Chief Constable, Strathclyde Police). Past conduct relied upon in justification of the revocation of a certificate must nevertheless be capable of yielding the conclusion that the holder of the certificate cannot be permitted to possess a shotgun without danger to the public safety or the peace. Plainly whether conduct does or does not yield that conclusion will depend on the nature of the conduct in question when set against the other circumstances of the case.

[18] Before considering that question in this case it is important to be clear about what is meant by the phrase "without danger to the public safety or the peace." The thrust of the submissions on behalf of the appellant was that the sheriff should be satisfied that the appellant "was likely to commit an offence involving a shotgun" or that there was at least "a real risk or likelihood of danger arising". These submissions were made under particular reference to Meikle v The Chief Constable, Strathclyde Police, which includes the opinion of the sheriff principal (at page 15) that satisfaction of the test in section 30C requires proof "of probable danger by reference to misconduct with a gun or other potentially lethal instrument." As I have already indicated, that view is uncontroversial insofar as it points up the need to relate the danger to possession of a shotgun but I would respectfully question whether the expression "probable danger" has any clear meaning. It seems to me that, in the context of this section, the word "danger" is synonymous with "risk" or "putting at risk" and that when one speaks in terms of risk one is concerned with a degree of probability which, according to the circumstances, may fall within a range which has highly probable towards one end and improbable though nevertheless possible towards the other. In my view it would be as accurate to speak in terms of a "risk" or "danger" of something happening if it were improbable though possible as it would be if it were highly probable.

[19] This approach appears to accord with that of the sheriff principal in the passage from Evans v The Chief Constable, Central Scotland Police to which I have already referred when he talks of the "risk of future misconduct ... involving the use ... of a shotgun (my emphasis)." Risk may be high or low and in relation to future events it is a term apt to cover a wide variety of circumstances, including those which might only possibly emerge. It seems to me therefore that, in addressing the statutory test in section 30C, the sheriff does not have to be satisfied on a balance of probabilities that damage to the public safety or peace will occur from the appellant's continued possession of a shotgun but that it is sufficient that he is satisfied that there is a risk (which is not trivial) that it might occur. For the sake of completeness it should be said that, even in that event, the sheriff has discretion to allow the appeal since section 30C(1) does not say that the chief officer of police (and thus the sheriff on appeal) "shall" revoke the certificate but that he "may" do so. Accordingly there may be other considerations which, in the sheriff's view, outweigh the risk of damage to the public safety or peace and lead him to exercise his discretion in favour of the certificate holder by allowing the appeal and reversing the decision to revoke the licence.

[20] With these observations in mind I turn to consider the second, third and fourth grounds of challenge to the sheriff's decision, all of which relate to different aspects of what is essentially the same question, namely whether it was open to the sheriff to make his finding in fact and law on the strength of his finding that the appellant had committed the indecent assault in issue, particularly when set in the context of findings in fact which, it was said, demonstrated his exemplary character.

[21] In my view this latter aspect of the appellant's challenge can be dealt with quite shortly and it is convenient to deal with it at this stage. There is no necessary coincidence between reputation and character. The fact that the appellant has exhibited an exemplary character to others does not necessarily mean that that reputation is an accurate reflection of his true character. Misconduct is rarely committed in full public view and it is not uncommon for a witness to speak highly about the character of a person without being aware of the details of a particular incident which may not reflect so favourably on the person whose character is being discussed. The sheriff plainly recognises this distinction in paragraphs 32 and 33 of his note when he contrasts the portrayal of the appellant as an upright citizen on the one hand with the fact that he has committed an indecent assault in the circumstances that he has described on the other. The question for the sheriff was what conclusion could be drawn from these contrasting pictures about the appellant's true character. That was a matter for the sheriff to weigh up and it is not for the appellate court to interfere with such a balancing exercise unless it betrays some error of law. In any event, in light of his findings with regard to the indecent assault, it can now hardly be suggested that the appellant's character is exemplary.

[22] So far as concerns the criticism levelled at the manner in which the sheriff has expressed himself in paragraph 39 of his note, in my view that criticism is misplaced. It seems to me reasonably clear that the sheriff is in effect recording his conclusion as to the appellant's true character and personality. When he describes him, for example, as a person capable of extreme, unpredictable behaviour of a violent nature or capable of losing his normal sense of reason the sheriff is in effect expressing his view that the appellant is a person who might behave in that manner in the future. If that possibility can be related to his possession of a shotgun in my opinion that would afford a perfectly adequate basis upon which the sheriff could be satisfied that the statutory test was met.

[23] Counsel for the appellant questioned the sheriff's analysis (at page 21) of the decision at first instance in the case of Meikle v The Chief Constable, Strathclyde Police. His suggestion was, I think, that it could be inferred that the sheriff thought there was some merit in the decision at first instance since it could be seen as founded on a concern that the appellant had a disdain for authority and a lack of judgment. Counsel pointed out that on appeal the sheriff principal had apparently rejected these concerns as a relevant basis upon which the certificate could be revoked. I am not sure that the sheriff principal went so far as to exclude such concerns as irrelevant in all circumstances. Rather he was not persuaded that, in the circumstances of that case, such disdain for authority and lack of judgment could be related to a risk of ill-controlled use of a shotgun. Whether or not his conclusion in that regard was well founded is beside the point given that each case will turn on its own circumstances and that the factual circumstances of that case were materially different from those in the present. But I think the sheriff was at least well founded in thinking that issues such as the appellant's state of mind and the other characteristics of his personality are potentially relevant to the question whether the statutory test is satisfied.

[24] The general character of a certificate holder may be such that one can readily conclude that he cannot be permitted to possess a shotgun without danger to the public safety or the peace. In my view the sheriff rightly finds support for such an approach in the comments of Bingham LJ in Spencer-Stewart v The Chief Constable of Kent when referring to the danger posed by a drunk man in possession of a gun. By the same token it is a conclusion which is open to be drawn that there is a danger (in the sense that I have already discussed) posed by a man in possession of a shotgun whose character is such that he can behave in an extreme, unpredictable and violent manner or can lose his normal sense of reason and conduct himself irrationally. Indeed I think counsel for the appellant ultimately came to recognise that that was so.

[25] In that event the only remaining question is whether there was a proper basis for the sheriff's characterisation of the appellant in this way. In this branch of the case there was in my view an unfortunate tendency on behalf of the appellant to downplay the seriousness of the assault and the appellant's response to it. The sheriff's reasoning, particularly in paragraph 37 of his note, seems to me unexceptionable. The fact is that the appellant indulged in criminal behaviour, involving a degree of violence, which in my view the sheriff could justifiably describe as reckless in the extreme and manifesting either badly flawed judgment or a complete lack of control or both. The fact that in certain parts of his evidence the appellant had lied and that he was "in denial" bears not only on his character generally but is relevant to explain the absence of any evidence that might have been led to counteract the inference that the sheriff felt should otherwise be drawn from the facts that had been established.

[26] In an appeal of this nature, confined as it is to a point of law, the only question for me is whether the conclusions that the sheriff has summarised in paragraph 39 were open to him. In my opinion they were. Having reached that view, there was in my opinion a sufficient basis upon which the sheriff could be satisfied that the statutory test set out in section 30C had been met. Having concluded that the sheriff has properly understood and applied that statutory test it follows that the appeal must be refused.

[27] It was the common position of the parties that the appeal should be certified as suitable for the employment of junior counsel and that expenses should follow success.