SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT DINGWALL
B20/07
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
RUAIRAIDH MICHAEL WESTON CAMPBELL
Pursuer and Appellant
against
THE CHIEF CONSTABLE, NORTHERN
CONSTABULARY
Defender and Respondent
|
Act: Mr
Robert McDonald,
solicitor, Stronachs, Inverness
Alt: Mrs
Victoria Leslie,
solicitor, Ledingham Chalmers,
Inverness
Dingwall: 6th May 2008
The
sheriff principal, having resumed consideration of the cause, refuses the
appeal and adheres to the interlocutor of the sheriff dated 1 February 2008;
finds the pursuer and appellant liable to the defender and respondent in the
expenses of the appeal and allows an account thereof to be given in and remits
the same, when lodged, to the auditor of court to tax and to report; quoad ultra remits the cause to the
sheriff to proceed as accords.
Note
[1] In this case the pursuer and appellant is a
young man who was born on 17 September
1987. He resides at Leanaig
Cottage, Conon Bridge,
Ross-shire. His father, Mr Michael
Campbell, also resides there. On 10 July 2006 the defender and
respondent issued a firearm certificate to the pursuer. This contained an
additional condition in the following terms:
"The rifles to which this certificate relates must be stored with a
registered firearms dealer when not in use".
The pursuer took issue with this condition and in January 2007 formally
requested the defender to remove it. By
letter dated 22 January 2007
the defender refused this request. The
pursuer thereafter appealed to the sheriff against this decision in terms of
section 44 of the Firearms Act 1968 as amended.
The appeal proceeded by way of a summary application and in due course
the sheriff heard evidence and submissions from the parties. Thereafter, by interlocutor dated 1 February 2008, he refused the appeal
and confirmed the defender's refusal to vary the terms of the pursuer's firearm
certificate. It is this interlocutor
which is the subject of the present appeal to myself.
[2] Section 29 of the Act deals with the
variation of firearm certificates. In
particular, section 29(2) provides: "A firearm certificate may also, on the
application of the holder, be varied from time to time by the chief officer of
police for the area in which the holder for the time being resides; and a
person aggrieved by the refusal of a chief officer of police to vary a firearm
certificate may in accordance with section 44 of this Act appeal against the
refusal". In the context of this case
section 44 provides, in short, that the appeal should be to the sheriff, that
it should be determined on the merits (and not by way of review), and that the
sheriff may consider any evidence or other matter, whether or not it was
available when the decision of the chief officer was taken. In terms of paragraph 4 of Part III of
Schedule 5 to the Act the decision of the sheriff on an appeal may itself be
appealed only on a point of law.
[3] The circumstances in which the condition
complained of by the pursuer came to be imposed by the defender are set out in
the sheriff's findings in fact 7 - 25 inclusive. These read as follows:
7.
Also resident at Leanaig Cottage, aforesaid was, and is, the pursuer's father, Michael
Campbell ('Mr
Campbell').
8. Mr Campbell
previously held shotgun and firearms certificates. Those were revoked by the
defender on 25 August 2004.
Those revocations followed an incident on 29 July 2004 in the Court of Session, Parliament House, Edinburgh,
during which Mr. Campbell
issued a threat against an advocate who had represented a party in an action
between that other party and Mr Campbell.
In respect of his conduct on that occasion, Mr
Campbell was subsequently convicted of
breach of the peace at Edinburgh Sheriff Court
and was sentenced to carry out 80 hours of community service.
9. During the period leading up to the revocation of Mr
Campbell's shotgun and firearms certificates, Mr Campbell behaved in an
overbearing, bullying and harassing manner towards police officers and civilian
staff of Northern Constabulary dealing with his case.
10. During the period leading up to the grant of the
pursuer's application for a firearms certificate in 2007, Mr
Campbell behaved in a similar manner towards
police officers and civilian staff of Northern Constabulary dealing with the
pursuer's case.
11. Other than by the lodging of the application, the
pursuer did not have any direct dealings with Northern Constabulary.
12. The pursuer shares his home with an individual who has
had his shotgun and firearms certificates revoked, following a conviction for
breach of the peace involving the making of a threat, and who has demonstrated
that he is willing to indulge in overbearing, bullying and harassing conduct in
order to achieve his desired ends.
13. That individual, being the pursuer's father, has the
natural influence as such over his son. The pursuer would be unlikely to resist
or refuse any request by his father for access to firearms or ammunition.
14.
The defender was apprehensive that if the pursuer stored firearms and
ammunition at Leanaig Cottage, he would allow Mr
Campbell access to them.
15. In those circumstances the storage, when not in use, of firearms and
ammunition at Leanaig Cottage, would present danger to the public safety. If Michael
Campbell obtained ready access to firearms
and ammunition at his home, there would be a risk to the public safety in that
he is an individual whose own firearms and shotgun certificates have been
revoked.
16.
The defender's primary objective is that so long as the pursuer and Mr
Campbell reside in the same house, the
pursuer should not store his firearms or ammunition there.
17.
If firearms and ammunition are not stored at Leanaig Cottage, then the
pursuer's father would not have ready access to them.
18.
The condition referred to in finding in fact 5 achieves the objectives
described in findings in fact 16 and 17.
19. Following the pursuer was willing to alter the
condition so that it would read 'The firearms and ammunition to which this
certificate relates must not be stored at the holder's home address of Leanaig
Cottage, Conon Bridge.' That amended condition would have achieved the same
objectives.
20. Otherwise, as an individual, the pursuer is fit to be
entrusted with a firearm and is not a person prohibited from possessing a
firearm. The pursuer has a good reason for having in his possession, or for
purchasing or acquiring, the firearms in respect of which his certificate was
granted.
21. The pursuer requires a firearms certificate in order
to acquire firearms to pursue shooting and deer stalking as a pastime.
22. The condition referred to is not so onerous or
restrictive as to prevent the pursuer altogether from pursuing those pastimes.
23. Storage of firearms in a secure gun room in an estate on which the
pursuer was engaged in a shoot would not contravene the terms of the pursuer's firearms certificate.
24. There are three registered firearms dealers with premises within
easy travelling distance of the pursuer's home, namely in Dingwall and Evanton,
both Ross-shire.
25. Without the inclusion of the condition, or another
condition effectively forbidding the storage of firearms and ammunition at a
house shared by the pursuer and Mr Campbell,
the defender would have refused the pursuer's application for a firearms
certificate.
[4] In light of these findings in fact the
sheriff found in law as follows:
The condition complained of being permitted by the
Firearms Act 1968 as amended, being reasonable in the circumstances and
proportionate and necessary to prevent danger to the public safety, the terms
of the pursuer's firearms certificate do not require variation.
[5] Opening the appeal, the pursuer's solicitor
accepted that the sheriff had applied the correct test as set out in his finding
in law, that the pursuer was bound by the terms of the sheriff's findings in
fact and that the sheriff's decision could be appealed only on a point of
law. In light of this last consideration
he acknowledged that the question was not whether an appeal court would come to
a different view on the matter from that which was reached by the sheriff. For the present appeal to succeed it had to
be demonstrated on the basis of his findings in fact that the decision reached
by the sheriff had been plainly wrong.
Reference was made to findings in fact 8, 9, 10, 12, 13, 14 and 15 and
it was submitted, as I understood the pursuer's solicitor, that these findings
in fact could not reasonably support the conclusion that there would be a
threat to public safety if the firearms in question were kept in a house
occupied by Mr Campbell senior. It was,
said the pursuer's solicitor, illogical to find that there would be a threat to
public safety by reason of the firearms being stored at the pursuer's home on
the basis that he would be unable to resist his father's influence and at the
same time to hold that he would somehow be able to resist this influence
elsewhere, for example in the premises of a registered gun dealer only a few
miles away. If Mr
Campbell senior seriously wished to have
access to his son's firearms and was able to exert an influence over him, he
would clearly be able to insist upon his son collecting the weapons for him at
the premises of a nearby gun dealer. In
addition, the sheriff had not made any finding in fact to the effect that Mr
Campbell senior had previously exerted any
influence on his son and in this situation the sheriff had relied simply on the
fact of their relationship in support of the assertion that the son would be
unable to resist his father's influence.
Reference was made to Jackson v
Chief Constable of Tayside Police 1993 SCLR 160 and in summary it was
submitted that the sheriff's decision had been plainly wrong in two respects in
particular, namely (1) in relying solely upon the relationship of father and
son to support the conclusion in finding in fact 13 that the pursuer would be
unlikely to resist or refuse any request by his father for access to firearms
or ammunition, and (2) in holding that the pursuer would be a fit and proper
person to have possession of firearms so long as he did not keep them at home,
the suggestion being that outwith the home he would be able to resist his
father in a way that he could not do so at home. Finally, the pursuer's solicitor drew
attention to what was said by Sheriff Principal Dunlop QC in Gordon v Bald (Perth Sheriff Court, 28
September 2004) at paragraph 36 where he stated: "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". In the present case, said the
pursuer's solicitor, the sheriff's decision had been plainly wrong and the appeal
should therefore be allowed.
[6] In response, the defender's solicitor
submitted in short that the sheriff had been entitled to reach the decision
which he had on the evidence that he had heard, that he had not erred in law in
doing so and that his decision was not contrary to any statutory test or
provision to be found in the Act. He had
been entitled to attach such weight as he considered appropriate to the facts
found by him and an appellate court was not entitled to interfere with the
balancing exercise which had been carried out by the sheriff unless it had
produced a result which was plainly wrong, which was not the case here. In light of the findings in fact made by him
the sheriff had been correct to find that the additional condition imposed by
the defender had been necessary to prevent danger to the public safety. Referring in particular to the sheriff's
finding in fact 13, the defender's solicitor submitted that this had been based
not simply on the relationship between the pursuer and his father but also upon
the evidence of Mr Campbell senior's past behaviour. The defender's solicitor also drew attention
to the pursuer's evidence to the effect that he held the only set of keys to
the gun cupboard in the family home and how there had previously been another
set of keys which had been lost, either by him or by his father, in about
2000. It was pointed out that the
sheriff had not found this account of the loss of the second set of keys to be
credible or reliable, and in all the circumstances it was submitted that the
sheriff had not erred in law and it had not been shown that his decision was
plainly wrong. The appeal should
therefore be refused.
[7] In my opinion the submissions for the
defender are to be preferred. Dealing
firstly with the attack upon the second sentence in finding in fact 13, I have
difficulty in understanding how the pursuer's solicitor could accept that he
was bound by the sheriff's findings in fact and at the same time challenge the
second sentence in finding in fact 13 on the basis essentially that it was not
supported by the earlier findings in fact.
In any event, it seems to me that these earlier findings, narrating as
they do the circumstances of Mr Campbell senior's conviction at Edinburgh
Sheriff Court and his having behaved in an overbearing, bullying and harassing
manner towards police officers and civilian staff of Northern Constabulary,
amply justify the sheriff's finding that the pursuer would be unlikely to
resist or refuse any request by his father for access to firearms or
ammunition. In this context it is
important to notice that the occasions upon which Mr
Campbell senior had behaved in the manner
described towards police officers and civilian staff of Northern Constabulary
had not been isolated incidents but had occurred frequently over a significant
period of time. Thus Chief
Superintendent Laurie Stewart who gave evidence before the sheriff and whom the
sheriff found to be credible and reliable described, according to the sheriff
(see paragraph [20] of his note), the many "dozens and dozens" of difficult
calls he and his staff personally had received from Mr Campbell senior, and as
the sheriff records in paragraph [23] of his note Mr Stewart "clearly
considered that his patience had been severely tested over the years by the
behaviour of the pursuer's father towards him and those for whom he bore
responsibility at work ...... He had
personal experience of the overbearing, bullying manner of Mr Campbell senior
and questioned whether if that behaviour were directed at the pursuer ....... he
could withstand it". The pursuer is even
now aged only 20 and the sheriff's finding in the first sentence of his finding
in fact 13 that Mr Campbell senior, being the pursuer's father, has the natural
influence as such over his son was not challenged by the pursuer's
solicitor. The sheriff of course had the
advantage denied to an appeal court of having seen the pursuer as he gave his
evidence and he (the sheriff) records in paragraph [11] of his note that it
seemed to him that the pursuer "became quite uncomfortable in the witness box
when being cross-examined about the issue of the keys and access to the gun
cabinet" (in the family home). In all
the circumstances I am quite unable to hold that the sheriff was plainly wrong
to have found as he did in the second sentence of finding in fact 13.
[8] As for the supposedly illogical approach of
the sheriff in adhering to the additional condition imposed by the defender, it
seems to me that there is a clear distinction to be drawn between the
circumstances of the pursuer and his father being at home together with
firearms stored in a gun cabinet there and the circumstances of the pursuer
having left the home on a shooting expedition, proceeding to the premises of a
registered firearms dealer to collect his firearms and thence to an estate and
finally returning his firearms to the dealer's premises before going home. Plainly there must be a risk that, even when
he is engaged upon such an expedition, his father will prevail upon him to hand
over a firearm and ammunition. But it
does seem to me to be reasonable to conclude that the risk of Mr Campbell
senior prevailing in this way upon the pursuer would be greater when the two of
them were at home and firearms were stored in a gun cupboard there than when
the firearms were stored elsewhere and the pursuer had at least to make a
conscious decision to go and collect his firearms and take them on a shooting
expedition, and had also the time and space to reflect which would not necessarily
be afforded to him within the confines of the family home. The sheriff dealt with this aspect of the
matter in particular at paragraphs [39] to [44] of his note where he wrote:
[39]
Given the unsatisfactory nature of the pursuer's evidence regarding the keys, I
was unable to find that Michael Campbell
could only access the gun cabinet if the pursuer were present.
[40]
It was correct that if, for example, the pursuer called at the registered
firearms dealer and collected his firearm and thereafter simply handed it over
to his father, that such conduct would not be prevented by the condition.
However, that would still require the active participation by the pursuer. In
my view such a scenario could not be described as Michael
Campbell obtaining ready access to a
firearm. In contrast, the fact that the pursuer shared a home, containing
firearms, with his father who had been demonstrated to be an individual willing
to resort to bullying and threatening behaviour might well lead to the
conclusion that he could easily persuade or obtain the consent of his 19 year
old son to allow him access to a firearm. In my view the easy access to a
firearm by an individual capable of such conduct clearly raised a concern of
public safety.
[41]
The evidence regarding the whereabouts or loss of a second set of keys was
unsatisfactory. That also raised a
question about public safety.
[42]
It also seemed to me to be logical to at least place an impediment or delay in
the way of access by Michael Campbell to firearms by the forbidding of the pursuer
from storing his firearms at home. The problem was the presence in the
pursuer's home of Michael Campbell.
The condition presented a solution to that problem, at the same time
recognising the pursuer's fitness as an individual to be entrusted with a firearm
and acknowledging that he had good reason to possess, purchase or acquire a firearm.
[43]
It did not seem to me that the condition complained of was so restrictive or
limiting of the pursuer's intended use of firearms as to be unreasonable.
[44]
I therefore concluded that the condition was perfectly reasonable, its
inclusion in the certificate logical and that the public safety would be
endangered by its removal. The appeal
therefore failed.
[9] Once again, I am quite unable to hold that
the sheriff's decision here was plainly wrong.
On the contrary, it appears to me that it was perfectly reasonable and
in all the circumstances, there having been no error of law on his part, this
appeal must be refused.
[10] For the sake of completeness I should perhaps
mention that the pursuer's solicitor did not seek to support the third and
fourth grounds of appeal and his submissions in support of the first, second
and fifth grounds were as I have sought to summarise them above.
[11] It was not in dispute that the expenses of
the appeal should follow success.
