Scottish Sheriff Court Decisions

B328/06

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT INVERNESS

JUDGEMENT

of

ROBERT BRODIE Esq, Sheriff,

in causa

JOHN MACGILIVRAY CLARK,

13 South West High Street,

Grantown-on-Spey, PH26 3QH

APPELLANT

Against

THE CHIEF CONSTABLE,

Northern Constabulary, Polic Headquarters,

Old Perth Road, Inverness, IV2 3SY

RESPONDENT

Act: Cruickshank, solicitor Alt: Tudhope, solicitor

Inverness, 11 December, 2006

 

The sheriff having resumed consideration of the cause:

 

FINDS IN FACT

 

1.      The appellant, aged 45, resides at 13 South West Highland Street, Grantown-on-Spey, PH26 3QH. He is a self employed Sports and Tourism Media Consultant and has a interest in the family farm at Dochlaggie, Boat of Garten. He is a Ski instructor trainer qualified with the British Association of Ski Instructors and he also has a Canadian qualification at Level 3 for Alpine Coaching.

2.      The respondent is the Chief Constable of the Northern Constabulary having his Headquarters at Old Perth Road, Inverness, IV2 3SY.

3.      The appellant has held a shotgun certificate for over 30 years and a firearm certificate for over 15 years. The appellant's shotgun and firearm are kept in a secure cabinet at the family farm at Dochlaggie, Boat of Garten.

4.      The appellant was trained in the safe use of shotguns by his father. He was a member of the Dulnain Bridge Rifle Club for 1974 to 1980 and received training there in the safe use of rifles, particularly target rifles.

5.      The appellant was a prominent skier in his younger days and held the British speed record. He was the Scottish Ski team coach for a time. His present work involves sports commentating for Eurosport on ski events throughout the world: it also includes on occasion dealing with the Press and with environmental bodies.

6.      The appellant has no criminal convictions and, apart from the charge referred to in Finding in Fact 22, has never been charged with a criminal offence.

7.      Towards the end of 2004 the appellant's daughter, Charley, while still at school and aged 16, began going out with Paul Ross, a private in the British Army stationed in Inverness involved in army recruitment and aged around 23.

8.      The relationship with Paul Ross, which persisted at least until May 2005, included a number of assaults by him on Charley. After Charley ended the relationship Paul Ross continued to contact her and followed her to Glasgow where she now studies.

9.      Paul Ross has been convicted in Inverness and Glasgow sheriff courts of assaults on Charley in 2005 and 2006, with the most recent conviction relating to an assault in Inverness in February 2006. He is also subject to a non-harassment order issued in Inverness sheriff court.

10.  On 4 May 2005, the day before Charley's first Higher examination, she received a phone call from Jack Lowe, a friend of Paul Ross, to say that Paul Ross had committed suicide and was in hospital in Germany. The next morning, 5 May, she received a text to say that he had committed suicide. After she had sat her examination she saw Paul Ross walking in Grantown-on-Spey.

11.  On the afternoon of 5 May 2005 the appellant called at the home of the parents of Paul Ross where Paul Ross was. An incident occurred there involving the appellant and Paul Ross.

12.  Following the incident referred to in Finding in Fact 11 police sergeant R MacDonald called on the appellant at his home in order to ascertain details of said incident. In the course of an amicable discussion during which the appellant was calm and rational the appellant advised sergeant MacDonald that Paul Ross was giving his daughter a hard time and for his part the sergeant warned the appellant as to his future conduct.

13.  In the early hours of Saturday 7 May 2005 the appellant received a phone call from his wife to say that Paul Ross and a friend, Alastair Norton, were outside her home in Aviemore threatening her and Charley. The appellant decided against driving there as he had drunk 3 pints earlier that evening. He dressed and went to Jack Lowe's flat, about 100 meters from his home, and entered it uninvited. The door was not locked. Thereafter an incident occurred involving Jack Lowe and the appellant.

14.  While at Jack Lowe's flat the appellant made and received a number of phone calls.

15.  Jack Lowe's flatmate, David Herbert was present in the flat during the incident.

16.  The incident ended with the appellant leaving the flat and around 5 minutes later David Herbert locked all the doors.

17.  On his way back to his flat the appellant was assaulted by a number of persons in the course of which he suffered injuries to the head requiring 18 stitches and a fractured cheekbone. He was treated that day in the A & E department of the local hospital.

18.  Prior to going to the A & E department that day the appellant was interviewed at his flat by 2 police constables one of whom was a woman.

19.  On 19 May 2005 police sergeant MacDonald and police constable Gen Fraser called at Jack Lowe's flat in the course of enquiries into the assault on the appellant. While constable Fraser, who was the reporting officer, took a statement from Jack Lowe sergeant MacDonald took a statement from David Herbert. Sergeant MacDonald did not notice any injuries on either Jack Lowe or David Herbert.

20.  Jack Lowe has at least one conviction for indecency with a female. Certain of his friends, including Alastair Norton and Benjamin (Benji) Wilson were known to the police. These friends had a bad reputation for drugs and his flat is well known for having many parties at which police sergeant MacDonald would not be surprised if drugs were in circulation.

21.  Jack Lowe no longer lives in Grantown-on-Spey; it is thought that he now resides in Zimbabwe

22.  In October 2005 the appellant was charged with assault and breach of the peace arising out of the 7 May incident. A complaint arising out of these matters was served on the appellant and was thereafter deserted by the procurator fiscal on or about 18 April 2006. The reporting officer for this matter was constable Fraser, the reporting officer for the assault on the appellant.

23.  Sometime in July 2005 the appellant applied for the renewal of his shotgun and firearm certificates previously issued in terms of the Firearms Act 1968 as amended (the 1968 Act).

24.  On 20 January 2006 chief superintendent Laurie Stewart wrote to the appellant to advise him that he intended to recommend to the respondent that he considered refusal of the appellant's application for the renewal of his shotgun and firearm certificates.

25.  The appellant wrote of 28 February 2006 making written representations against the proposed non-renewal of his certificates. Subsequently he met the chief superintendent on 18 April 2006 regarding this.

26.  On 1 June 2006 the respondent wrote to the appellant to advise him that his applications for the renewal of the certificates had been refused.

27.  At no timer were the certificates previously issued to the appellant revoked.

28.  The Appellant is not prone to drunkenness and is not of intemperate habits.

 

FINDS IN FACT AND LAW

1.      The appellant has never infringed the conditions of the successive firearm and shotgun certificates issued to him under the 1968 Act

2.      The possession by the appellant of a firearm or a shotgun does not constitute a danger to the public safety or to the peace.

3.      The appellant is fit to be entrusted with a firearm.

 

THEREFORE repels the pleas in law for the respondent; sustains the pleas in law for the appellant; Directs the respondent to withdraw the decision contained in his letter of 1 June 2006 to refuse to grant the appellant's applications made under the 1968 Act for renewal of his firearm and shotgun certificates and to grant said applications; Finds the appellant entitled to the expenses of the appeal and allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and report

NOTE:

[1] This is an appeal against the decisions of the Chief Constable (1) to refuse to renew Mr Clark's firearm certificate in terms of section 28 of the 1968 Act both decisions being made on the basis of reports relating to violent and threatening behaviour by Mr Clark. Mr Cruickshank, on behalf of the appellany, led in evidence the appellant, Frank Strang MBE, Lorna McKenna JP and the appellant's daughter, Charley Clark. Mr Tudhope, on behalf of the respondent, led in evidence Police Sergeant R MacDonald and David Herbert.

 

Evidence for the Appellant

[2] The appellant gave his evidence in a very controlled and under-stated manner, consistent with a constant theme in his evidence that he never lost his temper. He stated both in chief and cross that his daughter's friendship with Paul Ross, rather than making him angry, made him disappointed. He testified to discussing Paul Ross's behaviour on several occasions with his Army superior, Sergeant Mackenzie, as he was concerned that Paul Ross was affecting his daughter's safety. He also made numerous complaints to the police regarding Paul Ross's behaviour which he described as amounting to stalking. He stated that early in April 2005 his wife had told him that Paul Ross had hit their daughter on several occasions. Following this he, his wife and daughter called on Paul Ross and his parents in an effort to persuade Paul to break off the relationship. At the end of the meeting he thought that it had been agreed that Paul Ross would cease seeing his daughter. Within 5 to 10 days Paul Ross began to pester his daughter to resume the relationship. Regarding the May 5 incident he stated that his daughter told him that day that in the days immediately prior to 5 May Paul Ross had threated to commit suicide if she would not resume the relationship; that evening of 4 May, Paul Ross phoned her to indicate that he was in Germany and that he was to commit suicide; and that early on the morning of 5 May, the first day of her "Higher Exams", a friend of Paul Ross, Jack Lowe, phoned to say that Paul Ross had committed suicide the previous evening. The appellant phoned sergeant Mackenzie regarding this 'suicide' only to learn that Paul Ross was alive and well in Scotland. Accordingly he went to the home of Paul Ross's parents where Paul Ross threatened him with an iron bar; the police were called and police sergeant MacDonald called on him at his home later in the afternoon as noted in Finding in Fact 12. As to the 7 May incident he stated that he received a phone call from his wife around 2.30 am as noted in Finding in Fact 13 and in the course of that call she stated that both she and Charley had been threatened with death and rape. In the course of a number of phone calls with his wife he claimed that he heard his daughter phone for the police. He also spoke on the telephone to two acquaintances of Paul Ross, Joe Watt and Benji Wilson, both of whom he claimed were known drug dealers. He denied that at any time he had assaulted Jack Lowe or David Herbert and claimed not to know that the flat had an upstairs. After he left the flat he was assaulted in the Square by a number of persons who, he now believes, included Joe Watt, Benji Wilson and Jack Lowe. He was knocked unconscious and when he can to he was lying in the Square in a pool of blood. He returned to his flat and about 15 minutes later two police constables, one being a woman, arrived. He gave a statement to them.

[3] Frank Strang MBE, a business man specialising in the utilisation of redundant military facilities, testified to the appellant's character based on his knowledge of him gained over a period of around 25 years. That knowledge was gained in the context of skiing where he had competed with the appellant and worked with his as a fellow national team coach for the Scottish National Ski Council and as an employee where the appellant had worked for him in a number of capacities such as dealing with press inquiries and liaising with environmental bodies. He had written to the respondent in support of the appellant when he learned that it was proposed not to renew his certificates. He stood by everything stated in that letter and confirmed that he considered the appellant to be one of the most even tempered individuals with whom he had ever worked. He had never heard him threaten violence and had very rarely seen him drunk. The appellant was working for him when the appellant's daughter's difficulties with Paul Ross arose and he discussed these difficulties with the appellant. He was surprised at how clam the appellant had been and that the appellant's approach throughout had been to speak to Paul Ross and his parents with a view to resolving these difficulties by mediation.

[4] Laura McKenna JP testified to knowing the appellant for knowing the appellant for approximately 20 years during which time she had never seen him drunk. She had had little contact with him in the past 4 or 5 years. She knew him from before she became a secretary (around 1987) and thereafter chairperson of the Cairngorn Ski Club. When she was involved with the management of the Scottish Ski Team between 1987 and 1997 the appellant was the Scottish Ski Team Coach. She had countersigned his applications for firearm and shotgun certificates and would do so again.

[5] The appellant' daughter, Charley, testified to a stormy relationship with Paul Ross beginning just before her 16^th birthday in December 2004. She had wanted to end the relationship in March 2005 following being assaulted by him in a night club. He often threatened to commit suicide as a way to deter her from finishing with him. Paul Ross had assaulted her on a number of occasions and had been convicted as specified in Finding in Fact 9. She regarded him as a violent man as were some of his friends, namely Alistair Norton and Benji Wilson, both of whom were involved in the illegal use and supply of cocaine. She testified to being phoned around midnight on 4 May 2005 by Jack Lowe who told her that Paul Ross had attempted to commit suicide by taking an overdose. Subsequently she received a text message on the morning of 5 May advising her that Paul Ross had committed suicide. After sitting her exam she saw Paul Ross in the street and when she and her mother were driving to pick her brother up from school she saw Paul Ross outside his parent's home. She got out and joined her father who was asking Paul Ross to leave her alone. She did not see Paul Ross brandishing a metal bar at her father. As to the events on 7 May 2005 she confirmed that she was receiving threatening phone call from Paul Ross saying that he was going to slit her and her mother's throats; that Paul Ross and friends were outside her home in Aviemore; that she phone the police; and that she heard her mother speaking to her father on the phone telling him what was happening. Later that day her father told her that he had gone to Jack Lowe's flat to look for Paul Ross to ask him about his behaviour. She said her father was not violent and dud not drink too much alcohol.

Evidence for the Respondent

[6] The respondent's first witness was police sergeant R MacDonald (age 44) who had 23 years police experience in a number of locations within the northern constabulary area. He had not known the appellant since childhood and did not regard him as being of intemperate habits. He testified to receiving a phone call from Paul Ross's parents on 5 May 2005 requesting him to go to their home as they felt threatened by the appellant who had turned up at their home. After that incident, which had finished by the time sergeant MacDonald had arrived at the Ross's home, he went to the appellant's home. In the course of an amicable discussion with the appellant the appellant told him that Paul Ross was giving Charley a hard time and he told that appellant that he had to make sure that he did not go too far. With regard to the matters that happened on 7 May 2005 he stated that late on the evening on 6 May he had seen the appellant apparently under the influence of drink staggering in Grantown. He also stated that police constable Glen Fraser was the reporting officer into the separate incidents of the appellant's alleged assault of Jack Lowe and David Herbert and the assault on the appellant after he had left Jack Lowe's flat. He assisted constable Fraser with these enquiries by accompanying him to interview Jack Lowe and David Herbert at Jack Lowe's flat on the evening of 10 May. He did not notice any injuries on wither of them. He was aware that parties were held at that flat and, on the basis of the reputation of some of those who regularly attended these parties, such as Alastair Norton and Benji Wilson, he thought that drugs would probably be in use. At that time he did not know that the appellant had firearm and shotgun certificates and that Jack Lowe and David Herbert were potential suspects in the assault on the appellant. He took a statement from David Herbert while constable Fraser took one from Jack Lowe. The statement from David Herbert was read out and he stated that it was similar to the statement by Jack Lowe. He accepted under cross that if one or other or both had been involved in the assault on the appellant that could explain the tenor of their evidence but he did not believe that to be the case. He had not made any inquiries of the police officers investigating the May incidents. At no time did he check as to whether the appellant had firearm/shotgun certificates only becoming aware of this when the relevant constable dealing with the applications of renewal put up the papers to him recommending that renewal be refused. He agreed with that recommendation and duly minuted his superior office Chief Inspector A Walker who in turn minuted similarly to Chief Superintendent L Stewart who, so far as he was aware had taken the final decision to refuse renewal. The reason for his view was that he feared matters might escalate from the incident of 7 My. He continued to be of that view even although the appellant had continued to hold his guns without any incident from the time of the May incidents up to January/February 2006 while most of those involved in the May incidents were still present in the area. He stated that it was normal practice to review any firearm/shotgun certificate with a view to revocation thereof if the holder were the subject of any police investigation. That had not happened in this case.

[7] The respondent's other witness was David Herbert (36) a quality engineer with the same company for the past 9 years. He was engaged in oil and gas fabrication but did not work offshore. His girlfriend was the sister of Jack Lowe with whom he shared a flat for some 6 months before moving into his own home with his girl friend. He rarely drank and disapproved of the behaviour of Jack Lowe and friends. He had been out with friends on the evening of 6 May and had returned to the flat about 1 am on 7 May to find Jack Lowe, who, as was quite normal, was drunk and a few friends having a party there. He went up to bed and was wakened when the appellant kicked in his bedroom door and told him to get himself downstairs. He did not think the appellant was drunk. When he entered the living room he saw Jack Lowe lying on the floor which was littered with broken glass, with the appellant standing over him threatening him with a glass coffee table his head. He wrestled the table from the appellant and helped Jack Lowe to the sofa where they both sat for the one to one and a half hours that the appellant remained in the flat. Throughout that period the appellant appeared to be very angry and was on the phone speaking to a number of persons including his wife. He had thought of phoning the police when first awakened by the appellant but did not do so as the phone was downstairs. The appellant left the flat leaving all the doors in the flat open so after 5 minutes he went and locked all the doors. He heard screaming and shouting in the Square but could see nothing when he looked out of the window.

Submissions - General

[8] Mr Cruickshank for the appellant and Mr Tudhope for the respondent agreed that this appeal was to be determined on merits. Mr Cruickshank submitted that for the appellant to be successful in regard to the appeal regarding the renewal of the firearm certificate he required to satisfy the court on a balance of probabilities that the 3 tests set out in section 27(1) of the 1968 Act had been met; this differed from the case of an appeal against revocation of a firearm certificate under section 30A of the 1968 Act where section 30A (2) (a) and (b) provided alternative tests for the revocation of a firearm certificate, section 30A (2) (a) providing for the licence holder being of intemperate habits or unsound mind or is otherwise unfitted to be entrusted with a firearm and section 30A (2) (b) providing for the licence holder being a danger to the public safety or to the peace. The Onus on the appellant was accordingly heavier in the renewal situation. With regard to the appeal against refusal to renew the shotgun certificate it was for the appellant to show that he could be permitted to possess a shotgun without danger to the public safety or to the peace as provided for in section 28 of the 1968 Act, which was in similar terms to Section 30C which applied to appeals against revocation.

Submissions for Appellant

[9] Mr Cruickshank, for the appellant submitted that the evidence in this case showed that possession by the appellant f a firearm and a shotgun would not constitute a danger to the public safety or to the peace. While previous cases were of limited value, each case depending on its own circumstances, he cited the unreported case of Gordon v Assistant Chief Constable Tayside Police 28 September 2004 as a case where the court held that a person who had three convictions for drink driving did not constitute a danger to the public safety and could be entrusted with a shotgun and a firearm. In reaching that decision the sheriff had regard to the fact that the person had used firearms safely for more than 20 yeas. He also cited the case of Evans v Chief Constable Central Scotland Police 2002SLT (Sh Ct) 152 where Sheriff Principal Nicholson at p 155 H - I stated "it seems to me to be likely that a chief constable, who is considering the terms of s28(1), will have regard, and will be well entitled to have regard, to incidents in the applicant's history which did not involve the use, or the threatened use, of a shotgun or any other firearm" but went on to state at p155 J - K that "the relevance of past conduct is to be accessed in terms not of whether there is a risk of future misconduct of any kind but rather of whether there is a risk of future misconduct involving the use, or threatened use of a shotgun". The application of these dicta to the appellant who, prior to the May incidents had an unblemished record, would suggest that possession by the appellant of a shotgun or firearm did not constitute a danger to the public safety or to the peace. With regard to the 2 remaining tests governing the renewal of the firearm certificate set out in section 27(1)(a) and (b) he clearly satisfied the test set out in 27(1)(b) as his involvement in the family farm gave him good reason for having in his possession a firearm. He submitted that the appellant satisfied the test contained in s 27(1a). "that the applicant is fit to be entrusted with a firearm", by virtue of his previously unblemished record. In the letter from chief superintendent L Stewart date 20 January 2006 it was state the "the reason for recommending refusal of the renewal of your firearm and shotgun certificates is due to reports received relating to intemperance and violent behaviour" the letter from the chief constable date 1 June 2006 refusing renewal of the said certificates gave as the reason for refusal "reports received relating to violent and threatening behaviour". Mr Cruickshank queried how the chief superintendent and the chief constable could have reached the conclusion that the appellant was not "fit to be entrusted with a firearm" on the basis of the reports of the May incident particularly where sergeant MacDonald had agreed in cross-examination that from his knowledge of the appellant going back many years, the appellant was no of intemperate habits. At the time of the he had access to his firearms and shotgun and yet there was no hint that he had mentioned the possibility of using firearms during the incident in any way at all be it by threat or otherwise. Even if the appellant had lost his temper in the May incidents in the way suggested by the crown the evidence of what happened showed that the appellant had been able to control himself. The question should also be asked as to why if the appellant's behaviour had been such as to warrant the non-renewal of his certificates the respondent had not sought to revoke them following the May incidents; the appellant had been allowed to retain these certificates until the time for renewal had arrived and he had done so without the occurrence of a criminal incident of any kind be it firearm/shotgun related or otherwise.

Submissions for Respondent

[10]Mr Tudhope, for the respondent confirmed that the respondent agreed that the appellant had good reason for possessing a firearm and that accordingly the appellant satisfied the test in s 27(1)(b) of the 1968 Act. The respondent however did not consider that the appellant satisfied the test in s 27(1)(a) of the 1968 Act (that the applicant was not fit to be entrusted with a firearm) which test had to be contrasted with that in s30A(2)(Revocation of firearm certificates) . While s 30A(2)(a) referred to intemperate habits s27(1)(a) used the wider term 'fit to be entrusted' and the onus of proving that was on the appellant. He also submitted that the appellant failed to meet the test in s27(1)(c) of the 1968) Act (that the appellant could not be permitted to possess a firearm without danger to the public safety or to the peace). He similarly failed to meet the 'public safety' test in s 28(1) of the 1968 Act which applied to the renewal of shotgun certificates.

[11] With regard to the weight to be placed on the evidence if Character witnesses Mr Tudhope commended the terms of paragraphs [14] and [35] of sheriff principal Dunlop's decision in Gordon v Assistant Chief Constable, Tayside Police (Supra) Viz. [14} Council submitted that the sheriff court had lost site of the fact that one much ok at the totality of the evidence. He advocated caution with the sort of character evidence that had been led from Messrs Cheap & 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. [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 if 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 and 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 had made what in my view is an important finding in fact 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...." Mr Tudhope also submitted that while s $$ of the 1968 Act required the sheriff to determine the matter on the merits the sheriff should give due regard to the fact that the decision to refuse renewal of the certificates was only reached due consideration by experienced police officers.

Discussion

[12] Parties were agreed as to the tests that governed the renewal of the appellant's firearm and shotgun certificates and that it was for the appellant to satisfy these tests on a balance of probabilities. Whereas to qualify for a shotgun certificate one had to satisfy the single test specified in s28(1) of the 1968 Act that one could be permitted to possess a shotgun "without danger to the public safety or to the peace" to qualify for a firearm certificate one had to satisfy not only the 'public safety' test but also the tests set out in s27(1)(a) (the 'fit to be entrusted' test) and s 27(1)(b) (the 'good reason' test) of the 1968 Act. As noted in [10] above al were agreed that the applicant met the 'good reason' test of s 27(1) (b).

[13] The respondent considered that the appellant's behaviour on 5 May and in particular on the early morning of 7 May at Jack Lowe's flat was sufficiently serious to show that he failed to meet both the 'public safety' and the 'fit to be entrusted' tests. Accordingly the appellant was not entitled to receive either a firearm or a shotgun certificate and he had therefore decided to refuse the renewal of both certificates. As the respondent did not cite any other reason for that decision it is therefore essential to examine the behaviour in question with some care. So far as the 5 May incident in concerned there was no evidence from the purported complainers. Mr and Mrs Ross and Paul Ross; the appellant testified to having words with Paul Ross who, he alleged, swung a metal bar at him; Charley corroborated the appellant's account with the exception of the metal bar incident; and the incident concluded with sergeant MacDonald having an amicable discussion with the appellant. The account of the behaviour in the 7 May incident from the two persons who were present and who gave evidence; the appellant and David Herbert, differed significantly. David Herbert presented as a law abiding citizen who had held down a responsible job for 9 years and had never been in trouble with the police. The appellant also presented as a law abiding citizen who had never been in trouble with the police, had competed successfully in international ski competitions, had held responsible coaching positions in skiing at national level, had worked in PR and liaised with environmental bodies, is a self employed Sports and Tourism consultant, works as a commentator for Sky TV on international ski competitions and who had held a shotgun certificate for 30 years and a firearm certificate for 15 years. The evidence of Paul Ross's relationship with the appellant's daughter, Charley, certainly gave cause for the appellant to be very angry but the appellant was at pains to insist that he was not so and to some extent his friend Frank Strang supported that lack of anger. This I find hard to understand. Similarly I find it hard to understand the thinking behind the appellant's visit to Jack Lowe's flat on 7 May. On the other hand I find it hard to understand David Herbert's description of what took place in Jack Lowe's flat that night. For the appellant to remain in the flat for up to one and a half hours in an angry state without the two people in the flat attempting either to overpower him or to phone for assistance is difficult to contemplate. What is certain is that an incident in which no injuries were sustained took place that early morning as noted in Finding in Fact 13. On a balance of probabilities I believe the account of the appellant in preference to that of David Herbert. The behaviour outlined in that account along with the behaviour in the 5 May incident does not persuade me that if the appellant were to be permitted to possess a firearm or a shotgun he would constitute a danger to the public safety or to the peace. Esto the account of David Hebert were correct I consider that the fact that the appellant was able to restrain himself from inflicting any physical damage on Jack Lowe argues in favour of his inherent self restraint and accordingly I would again have found that if the appellant were to be permitted to possess a firearm or a shotgun would not constitute a danger to the public safety or to the peace.

[14] For the appellant's firearm certificate to be renewed, however, he also has to satisfy the test in s 27(1)(a) that he is someone who is fit to be entrusted with a firearm. In the context of revocation of firearm/shotgun certificates it is clear from Meikle v Chief Constable of Strathclyde unreported 7 May 2003 that it is possible for a firearm certificate to be revoked even where on the same evidence the revocation of a shotgun certificate cannot be justified. The reasoning in that case clearly applies to renewal cases. I do not consider, however, that the evidence here leads to such a conclusion. Mr Tudhope cited the case of Gordon v Assistant Chief Constable, Tayside Police (supra) as authority for the proposition that one should be wary of accepting character evidence at face value. In this case we have very strong character references from two responsible and respected persons who had known the appellant over a considerable period of time and who gave their evidence in a clear and forthright manner such that I have no difficulty in regarding them as credible and reliable witnesses. Against that we had evidence that charges made against the appellant had been deserted by the crown and the only police evidence presented was that of a police sergeant who had first attended the scene of the alleged crime some 3 days after its alleged commission who was not the reporting officer for the deserted charge and who had not discussed matters with the police officers who had investigated matters on the day of the alleged crime. Lacking any evidence from the police officers with 'first hand' knowledge of the 7 May incident and from the senior police officers who had been involved in consideration of the application for renewal of the certificates I am satisfied that the evidence of the character witnesses together with all the other evidence put forward by the appellant outweighs the respondent's evidence and supports my Finding in Fact and Law 3 in preference to the inference which I could have taken from the deserted charge.

Conclusion

[15] On this whole matter, therefore, I have upheld the appeal and, in terms of schedule 5, Part III of the 1968 Act, have directed the respondent to withdraw the purported refusal of the appellant's firearm and shotgun certificates contained in his letter of June 1 2006 and to grant the applications by the appellant for renewal of the said certificates. At the conclusion of the appeal the matter of expenses was debated. Mr Cruickshank submitted that expenses should follow success citing Denton v Chief Constable, unreported 26 October 2000. Mr Tudhope submitted that if the appellant lost expenses should be awarded against him but if the respondent was carrying out a statutory duty to decide what is appropriate in the public interest. I am not persuaded by Mr Tudhope's submission and therefore in accordance with the normal rule award expenses to the successful appellant.