Scottish Sheriff Court Decisions

B7/08

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF

SHERIFF G J EVANS

in causa

ALEXANDER RAEBURN GRIEVE

residing at

Carlhurlie Farm, Lundin Links, Fife, KY8 5QE

PURSUER

against

PETER M WILSON

Chief Constable, Fife Constabulary

Detroit Road, Glenrothes, Fife, KY6 2RJ

DEFENDER

CUPAR, 21 November 2008. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

1. The parties are as designed in the instance. The pursuer is aged 76 (DOB: 3.05.32).

2. The pursuer is a farmer, landowner and company director with interests in property development, who has had a long experience, including military service, of firearms, going back almost 60 years. He has held a firearm since 1949. He owns 5 farms, 3 at Lundin Links viz Carlhurlie, Annfield and Greenside Farms, one in Aberdeen viz Wardhead Farm and one at South Queensferry, viz Dundas Home Farm. He is well regarded throughout the United Kingdom as a breeder of pedigree cattle. He farms in all over 600 acres, of which 450 are at Lundin Links.

3. His only previous conviction was for a road traffic speeding offence some 20 years ago on 5 September 1988.

4. The pursuer is of good character and in particular is not of intemperate habits or of unsound mind.

5. The pursuer has lived and farmed at Carlhurlie Farm for some 40 years. He is divorced and lives alone.

6. The pursuer has held both firearms and shotgun certificates in respect of his residence at Carlhurlie since 1968.

7. Those certificates were consistently renewed and in particular over the years 1994, 1997, 2000 and 2002. There was also an application for variation of his Firearm Certificate in April 1998 due to the pursuer having sold his then .222 rifle and acquired another one.

8. Since 1991 the pursuer has held a .222 bolt action rifle, a .22 semi automatic rifle, a .22 sound moderator, a 12 bore Aya Aguirie Aranzaba shotgun and a 20 bore Browning shotgun at his farm address.

9. The pursuer lives in a substantial 1850 single storey dwellinghouse to the west of the C59 Lundin Links to Montrave Road about 1.25 miles north of Lundin Links (vide 5/10 of Process). The situation is relatively remote, with only other farmers for neighbours, apart from a nearby police sergeant.

10. For many years since 1969 the pursuer kept his weapons and ammunition in a recess cupboard in his bedroom with a solid pine door and a mortice lock. The mid-level shelf had 2 semicircular cutouts made in the wood to allow the storage of weapons.

11. These were the details supplied in his renewal certificates along with a reason for possession being, briefly, "pest control on my farm."

12. Due to his concerns over poachers and the remote location of his house, the pursuer had a Red Care Alarm System, supported by a CCTV system which recorded onto a PC within his home, installed in his house some time in 1996.

13. In the same year he ceased to keep his weapons in his adapted bedroom cupboard and stored them in a British Standard gun cabinet in the same bedroom, the cabinet secured against a wooden sliding wardrobe.

14. In the 1997 Standard Firearms Inquiry Report, into the pursuer's application for renewal of his certificates, the storage arrangements are described as follows:-

"4 gun capacity purpose built gun cabinet fixed to substantial wall in bedroom of home address. House is covered by a monitored alarm system (A.B.C. system)"

15. The ammunition was stated to be "within locked compartment in gun cabinet (separate key)". (vide 6/9 of Process)

16. In the 2002 Standard Firearms Inquiry Report with the pursuer's application for renewal of said certificates, the storage arrangement was described as follows:-

"The 4 gun double locking B.S. gun cabinet is bolted to an internal stone wall and located within the master bedroom accessed via the hallway. The home is covered by a "Redcare" security system, also by recorded tv and monitored cameras."

The ammunition is stated to be "held under separate security" (vide 6/14 of Process)

17. While the pursuer normally stored all his weapons in the locked B.S. steel gun cabinet and hid its keys in a pot pourri in his bedroom, he considered that at times when he required quick access to a weapon, it could for that limited purpose be kept in the former storage space, viz the recessed cupboard in his bedroom.

18. He considered that the lambing season starting in February was such a time and that it was reasonable and acceptable to keep his .22 rifle in the locked cupboard along with some ammunition to allow him quick access to and use of the .22 rifle to frighten off foxes. He kept the keys to this cupboard hidden in a box of tissues in the same bedroom.

19. On 6 February 2007 (by which time the pursuer had begun to keep the .22 rifle and its ammunition in a locked cupboard a few days before and had used it to frighten off foxes during that period), the pursuer planned to attend the bull sales held in Perth that day.

20. When leaving the house unattended, the pursuer would normally set his burglar alarm system and intended to do so that day. That particular day, however, he wanted to attend his neighbouring farm at Annfield to see ongoing building works there and left his house at Carlhurlie without setting the burglar alarm system at that point as his original intention was that he would return to Carlhurlie before setting off for Perth and at that point he would have set the alarm.

21. In the result, however, having spent longer than intended at Annfield Farm, he overlooked the fact that he had left the alarm unset and went straight to the bull sales at Perth. He had it at the back of his mind that his CCTV system would provide sufficient security. He left for Perth about 9.15am that morning.

22. While the main door entrance of the pursuer's house was to the south, the actual entrance was normally by a side door to the west. The side door was made of wood with clear glass panels top and bottom and secured by a yale mortice lock.

23. That day, in the pursuer's absence and with no alarm system switched on, an intruder or intruders used a sledgehammer to smash open this side door and effected entry. The sledgehammer had been obtained by breaking into a tool shed on the farm.

24. Once inside they removed the CCTV system and PC used to record intruders. They found the key to the bedroom cupboard in the box of tissues kept on the bedside table and used it to open the cupboard and remove the pursuer's .22 rifle, magazine and ammunition. The B.S. steel gun cabinet, despite being attacked several times by the sledgehammer, withstood all attempts to open it. The keys for it hidden in the pot pourri in the bedroom were not discovered by the intruder or intruders.

25. At 5.15 pm the pursuer returned from Perth and discovered the break-in. He immediately notified the police. This was the first and, to date, the last occurrence in which his house had been broken into. The police took about an hour to arrive.

26. After their investigation of the circumstances, the police took possession of the pursuer's remaining weapons for safe keeping and by letter of 13 April 2007 the defender revoked the pursuer's current certificates which were not due for renewal until 22 November 2007.

27. The pursuer appealed that revocation with a hearing fixed for 27 July 2007 but those proceedings were sisted after the pursuer was prosecuted for a contravention of Section 1(2) of the Firearms Act 1968 with the ultimate result that on 24 September 2007 he was acquitted on the ground that there was no case to answer.

28. As there was no prospect of a fresh court hearing being assigned before the pursuer's existing certificates were due to expire, viz 22 November 2007, the pursuer decided instead to apply for new shotgun and firearms certificates, that being tantamount to an application for renewal of his original certificates.

29. Following on from the break-in and theft of his .22 rifle, the pursuer improved his security by installing a new burglar alarm and CCTV system which records and stores images remotely at a cost in the region of £35,000. He bought a new and more substantial gun cabinet to replace the damaged one and had it well secured to the stone floor and wall in his sunlounge. He had a new front door-set put in by Swedoor Limited which is very secure and had his near or side door enhanced with new locks, securing its frame to the wall and replacing the glazed panels with 6.4 mm Georgian wired glass.

30. The pursuer's applications for new shotgun and firearms certificates were dated 21 November 2007 and received by the defender's Firearms Licensing Section on 26 November 2007.

31. By letter dated 21 January 2008 and hand delivered to the pursuer on 24 January 2008, the defender's deputy intimated that his applications had been refused.

32. It was conveyed to the pursuer that the defender took the view that the pursuer's failure to set his alarm on 6 February 2007 coupled with his decision to store his .22 rifle and ammunition in a bedroom cupboard with the keys kept in a nearby tissue box which led to a powerful weapon and ammunition falling into the hands of criminals, meant that the pursuer was no longer fit to be entrusted with such weapons.

33. The .22 rifle itself was recovered eventually by the police on 23 January 2008 but to date no ammunition has been recovered.

34. As at 6 February 2007, the safety arrangements made by the pursuer for temporary storage of his .22 rifle in his locked bedroom cupboard along with its ammunition did not meet with the level 1 requirements of the broad levels of security guidance given to the police by the Home Office (vide 5/4 of Process), nor was it in conformity with the conditions in his certificate.

35. The pursuer intends to adhere to such guidance in the future and to refrain from placing his .22 rifle or any other weapon in his possession other than in his new current cabinet and any allowable ammunition within a locked compartment within said gun cabinet with a separate key.

36. The Home Office Guidance suggests that by classifying targets or quarry according to size, foxes should not be considered as vermin.

37. While a .22 rim fire rifle such as that owned by the pursuer might reasonably be permitted for use against foxes in certain circumstances, those circumstances would tend to be limited to the humane dispatch of a wounded fox and would not include the pursuer's intended use of that particular weapon to scare away foxes during the lambing season.

38. Such a use would be ill-advised and potentially dangerous and counter-productive, as well as being contrary to the conditions in his certificate.

39. The pursuer, however, genuinely considered that such a use was both feasible and permitted by his certificate, as his understanding of "vermin", which many other farmers would also have, was that the term included "foxes". He was not intentionally seeking to act contrary to the terms of his certificate.

40. The pursuer is a conscientious person with high standards of personal behavior who made an unfortunate but not entirely unreasonable assessment of where his .22 rim fire rifle should be kept prior to said break-in, having acted in good faith throughout.

41. The pursuer's personal integrity and honesty are likely to ensure that in future all his weapons will be stored permanently in his new metal gun cabinet and not placed at any point in his bedroom cupboard. He will ensure that all ammunition is also separately stored and that the keys for both the gun cabinet and the separate container for ammunition within are kept apart and securely stored.

FINDS-IN-FACT-AND-IN-LAW:-

1. The pursuer is fit to be entrusted with a firearm to which Section 1 of the Firearms Act 1968 applies.

2. The pursuer has a good reason for having a firearm in his possession, viz the control of vermin and ground game.

3. Despite the circumstances surrounding the break-in to his house on 6 February 2007, the pursuer can in all the circumstances be permitted to have a firearm and ammunition in his possession without danger to the public safety or the peace.

4. The pursuer has a good reason for having a shotgun in his possession, viz controlling pigeons and rabbits and for sport.

5. Despite the circumstances surrounding said break-in, the pursuer can be permitted to have a shotgun and ammunition in his possession without danger to the public safety or to the peace.

Accordingly Sustains the pursuer's first plea-in-law and Repels the defender's first, second and third pleas-in-law; Finds it unnecessary to deal with the pursuer's second plea-in-law; Grants the appeal in respect of both firearms and shotgun certificates and Recalls the decision of the defender dated 21 January 2008 to refuse the pursuer's application for the renewal of his certificates; Directs the defender to grant the pursuer's application both for a firearm certificate and a shotgun certificate in respect of the same kind of weapons and ammunition as were formerly in his possession and covered by his former certificates and subject to broadly the same conditions as applied before the defender's decision to revoke the pursuer's former certificates on 13 April 2007; Reserves meantime the question of expenses and Fixes Friday, 5 December 2008 at 10.00am as a hearing thereon.

Sheriff

NOTE:-

Introduction

Under Section 1(1)(a) and Section 2(1) of the Firearms Act 1968 as amended, it is an offence for a person to possess a firearm and/or shotgun without first obtaining a certificate in the prescribed form from the Chief Officer of Police for the area in which that person resides (ibid Section 26A and Section 26B). Before granting (or renewing) a firearms certificate, the Chief Officer of Police has to be satisfied on 3 matters, viz:-

"(a) that the applicant is fit to be entrusted with a firearm to which Section 1 of this Act applies and is not a person prohibited by this Act from possessing such a firearm;

(b) that he has a good reason for having in his possession, or for purchasing or acquiring, the firearm or ammunition in respect of which the application is made; and

(c) that in all the circumstances the applicant can be permitted to have the firearm or ammunition in his possession without danger to the public safety or to the peace." (ibid Section 27(1)).

A shotgun certificate, however, only requires satisfaction on factors (b) and (c) but in addition it spells out that a "good reason" for having a shotgun shall be "if the gun is intended to be used for sporting or competition purposes or for shooting vermin" (ibid Section 28(1), 1(A) and 1(B)). As some of the cited cases demonstrate, the deciding authority may in some circumstances allow a person to have one certificate but refuse to allow them to have the other, as the criteria are not completely identical. Once granted, the certificate remains in force for what is presently 5 years and is renewed thereafter for a further 5 years unless it has at any point been revoked or cancelled (ibid Section 28A(1)). Any person aggrieved by the refusal of the Chief Officer of Police to grant or renew such a certificate may appeal against the refusal "in accordance with Section 44 of this Act" (vide ibid Section 28A(6)). Such an appeal lies to the Sheriff and in terms of Sections 44(2) and (3):-

"(2) An appeal shall be determined on the merits (and not by way of review).

(3) The court or Sheriff hearing an appeal may consider any evidence or other matter, whether or not it was available when the decision of the Chief Officer was taken."

Under Schedule 5 of the Act such an appeal is to be dealt with by "the Sheriff within whose jurisdiction the appellant resides" and is to be by way of summary application. The matter before me was a hearing on such a summary application. The pursuer was represented by Sir Crispin Agnew, QC, Advocate and the defender, The Chief Constable for Fife, by Mr Munroe, Solicitor, Fife Council. Over 3 days I heard evidence for the pursuer from the pursuer himself in part, then interrupted to hear evidence from Doctor Colin Sheddon, The Scottish Director of the British Game Conservation, and then the rest of the pursuer's evidence. I then heard evidence for the defender from PC Grant Ness, David Grieve, Superintendent John Pow, George Kyle, and David Scott. Having heard submissions thereon, I took the matter to Avizandum.

Background

The single event that ultimately gave rise to the instant appeal was a successful break-in to the pursuer's house on 6 February 2007 in the course of which the intruder gained entry inter alia to a bedroom cupboard and stole the pursuer's .22 rifle and ammunition. The rifle was recovered 11 months later on 21 January 2008 but not the ammunition and an individual has been charged and a complaint brought by the Fiscal. The pursuer led evidence to explain and justify his actions that day in leaving his house without putting on his burglar alarm and not storing the .22 in his metal gun cabinet along with all his other weapons and ammunition, but keeping it in what used to be his storage place for weapons, viz a locked bedroom cupboard along with its ammunition and with the key kept in a nearby box of tissues. He also led evidence of the steps taken to prevent a recurrence of the circumstances prevailing on that particular day. The defender led evidence from a succession of officers, some of whom had spoken directly to the pursuer at the time and some of whom had made assessments on the circumstances. As the break-in occurred at a time when the pursuer held both firearm and shotgun certificates, which were not due to expire for another 9 months, the defender had to consider whether or not they should be revoked before expiry in light of the circumstances disclosed by the break-in. The matter was first looked at by his firearms licensing manager Mr David Scott who visited the pursuer at his house on 20 March 2007 and produced his memorandum to Superintendent John Pow dated 23 March 2007 recommending refusal of both certificates (vide No 6/17 of Process). Superintendent Pow produced his own memorandum (No 6/18) also recommending the revocation of both certificates on the ground that the risk of public safety or peace was otherwise too great. The Deputy Chief Constable accepted that (see the docket on No 6/18) and the pursuer's certificates were formally revoked by letter from the Deputy Chief Constable dated 12 April 2007 (No 6/19). His appeal against revocation was sisted pending the outcome of proceedings against him for contravention of Section 1(2) of the Firearms Act 1968 on which he was eventually acquitted on the basis of no case to answer on 24 September 2007. There was no point then with proceeding with the appeal against revocation as his certificates had only another month to go before expiry. He was therefore required to make a new application for both firearm and shotgun certificates and again that was subject to police scrutiny. The first person to look into was Mr George Kyle, the Firearms Enquiry Officer, who concluded in his memorandum (6/22 of Process):-

"Under normal circumstances I would not hesitate in supporting his application. However, given the nature of his action resulting in the revocation, I recommend that this application be refused."

Mr David Scott again became involved after this report and his further assessment is to be found in his memorandum to the Deputy Chief Constable dated 8 January 2008 (No 6/23 of Process). At the conclusion of which he stated:-

"... I strongly recommend that Grieve's application for the grant of a firearm certificate and a shotgun certificate be refused and have attached a draft letter of refusal for your consideration of signature."

Support for that conclusion came from Superintendent McLeod in an addendum to the report addressed to the Deputy Chief Constable and she has written on it on 23 January 2008 "recommendation for revocation (sic) supported." She had formally written to the pursuer on 21 January 2008 to refuse his applications for both firearm and shotgun certificates. It is in that context that the defender led the evidence of his various witnesses.

Objection to Evidence

At the conclusion of the proof, and before hearing submissions on the evidence, I indicated to parties my decision on an objection previously taken by Sir Crispin during the course of the hearing and did so without realising that parties had again dealt with this in the body of their written submissions. It might be of assistance if I set out here what those submissions were and what my decision was. Objection was taken by Sir Crispin to the evidence given by the defences witnesses Superintendent Pow and Mr Scott in relation to defence productions 6/17, 6/18 and 6/23. These were memoranda prepared by the witness concerned but compiled on the basis of certain documents not produced. The nature of the objection was that failure to produce these supporting documents was unfair and contravened the best evidence rule so that any evidence based on them was inadmissible and fell to be rejected. The authority for that submission was given as the case of Scottish & Universal Newspapers Limited v Gherson's Trustees 1988 SLT109. If I were against him on that submission, I should not give great weight to these documents because the files had not been produced and the pursuer had not had a fair opportunity to see whether the conclusions in the memoranda and reports were supported by the files. Mr Munroe sought to distinguish that case. The whole issue in it related to alleged errors in a balance sheet and the balance sheet was missing. The Lord Ordinary at page 112 was quoted as saying "I consider that the documents are absolutely essential to the proof of the two important issues which I have identified." At page 115 Lord Grieve explained the primary rule of the law of evidence in Scotland as "a party much produce the best obtainable evidence of the facts he means to prove". In a subsequent case of Peacock Group v Railstone Limited and William Murchland pipework went missing. In the instant case there was no attempt made to prove any of the facts in the file which was not produced. To a large extent the facts were not in dispute. The pursuer accepts that the rifle was stolen from the cupboard. The court was not being asked to review the decision of the police. If that were the case then the court might obviously want to know what exactly was before the police. However, as the court was required to decide matters afresh, that was on the basis of the evidence presented at the hearing. Those witnesses whose evidence was challenged had set out their understanding of the facts and then proceeded to give their opinion on the applicability of statutory tests to them. Accordingly it was submitted that the objection was misconceived and all the evidence given should be allowed.

I allowed the evidence to be led subject to relevancy and competency. I now repel that objection. The case cited to me was a case in which the pursuers were prevented from leading oral evidence of discrepancies in certain financial records in the absence of those records themselves. Lord President Emslie stated that the best evidence rule was that "the contents of documents must be proved by the documents themselves and cannot be proved by parole evidence." In my view, however, the rule only needs to be operated where what is sought to be proved is an essential part of what has to be proved. It was an essential part of the pursuer's case in Scottish & Universal Newspapers Limited that such financial discrepancies did exist. In the instant case, it is not an essential part of the defender's case to be able to show what the exact content of the various supporting documents was. All he is seeking to prove is the rationale behind a certain decision and the accuracy of the facts on which that rationale was based. It may be problematic for the pursuer or indeed the court, how best to assess that rationale as it has apparently been based on documents that have not been produced or spoken to but this does not make the evidence about the rationale spoken to by both these two witnesses inadmissible. The defender is not founding to any extent on what the exact terms of the supporting documents were but only on the secondhand use made of them by the compilers of these memoranda. Standing the terms of the Civil Evidence Scotland Act 1988, that is admissible as there is now no rule preventing the use of evidence based on hearsay and the objection falls to be repelled. It all falls out to a question of weight.

Submissions of Parties

Both Sir Crispin and Mr Munroe made their submissions on the basis of both written and verbal submissions and I endeavour to reproduce these in condensed form.

(i) Submissions for Pursuer

Although the court could direct that only one certificate be granted and refuse the other, the pursuer sought an order for grant in respect of both certificates. The court's decision was to be made de novo, based on all the information before it. The matter was at large for the court and the applications to be considered fresh. That was with the advantage of hearing witnesses on oath and subject to cross-examination, an advantage not available to the pursuer who, along with Mr Scott and Superintendent Pow, had proceeded on the basis of reports and other secondhand information. I was referred to the article in the journal of the Law Society of Scotland July 2001 "Firearms Appeals: The Sheriff's role redefined" and to the various cases cited therein.

The case law showed that the phrase "without danger to the public safety or to the peace" referred to the personal use by the applicant, ie if the applicant had a weapon physically in his possession, he would be likely to behave in a manner that was a danger to public safety or to the peace. As there was no evidence that the pursuer would be a danger to the public from such possession, each certificate could be granted on that ground. The firearms weapon however included a separate test of whether or not the applicant was "fit to be entrusted with a firearm" and that had to be met with regard to the firearms certificate alone. I was referred to the specific terms of Sections 27 and 28 of the Act. Each certificate "shall be granted" once the statutory criteria were met. Both Sections required the applicant to have a good reason to possess the firearm or shotgun. Both required the Chief Constable or the Sheriff to be satisfied that the applicant could possess a firearm or shotgun "without danger to the public safety or to the peace". But for a firearm alone the Chief Constable or the Sheriff had to be satisfied "that the applicant is fit to be entrusted with a firearm". While the revocation provisions in Sections 30A and 30C were slightly different, they more or less mirrored the grant/renew provisions set out in Sections 27 and 28. I was referred to the following case law, viz Ackers v Taylor (1974) 1WLR 405; Luke v Little 1980 SLT (ShCt) 138; Spencer Stewart v Chief Constable of Kent (1989) 89CrAbpR307; Dabek v Chief Constable of Devon and Cornwall (1990) 155JBRep55; Evans v Chief Constable, Central Scotland 2002 SLT(ShCt)153; Meikle v Chief Constable Strathclyde Police, Decision of Sheriff Principal Kerr dated 7 May 2003; Shepherd v Chief Constable of Devon and Cornwall (2002) EWHC1653Admin.

Turning to the evidence led, there was clear evidence that the pursuer had a good reason to possess both a firearm and shotgun certificate. He himself stated that he farmed and required to shoot vermin, foxes, geese and deer etc. He used his shotgun for game shooting purposes and all that appeared to be accepted by the Chief Constable (vide 6/23 at pages 6 and 10). It was also accepted in evidence by Mr Kyle and Mr Scott (cf 6/23 at page 6). As to the alternatives if that was not possible, the evidence of Mr Sheddon showed that the air rifle was not clearly a practical form of vermin control if that included foxes, deer and mink. It was restricted in its power and range and while it could be used for smaller vermin like rabbits, it was inhumane and impractical for larger vermin. While it was ideal for pigeons in a barn, it was totally impractical for hares and geese. It was accepted that other persons could help in vermin control but they would not be immediately available where vermin control or frightening away foxes was required at short notice, such as at lambing, which all took place on the farm next to where the pursuer lived and why he personally needed to be able to go out with a gun. Dr Sheddon also indicated that the best person was the person who was resident on the farm. There was very little predictability in when a gun would be needed. Neither geese nor foxes were predictable and gamekeepers resident on land were best.

There was no evidence that the pursuer was likely to be a danger to safety or to the peace from the possession of a firearm or a shotgun. He had good character references and a long experience with both types of weapons. There was no suggestion in any of the police reports that he was likely to handle weapons irresponsibly and he thus met the test laid down in the Act which as the cases showed meant the personal use of the applicant of such weapons. It was accepted, however, that the security issues that arose from the break-in were relevant to possession of a firearm certificate, the question arising being whether the pursuer was a person who was so reckless or careless about storing and safeguarding his firearm that he was not fit to be entrusted with it (cf the Home Office Guidance paragraph 12.11, page 63 of Production 5/4). Some of the factors brought out by the break-in had been misinterpreted on behalf of the defender. The pursuer had explained that the cut-outs in his bedroom cupboard had been in existence during the time, pre 1997 that the cupboard had been an acceptably secure cupboard for obtaining his certificates. Mr Scott approached the matter by assuming that these cut-outs were of recent origin, which was not only factually wrong but at odds with Superintendent Pow who at least recognised that the pursuer's weapons were kept in a cupboard prior to 1996, although he could not say which one. The pursuer's decision to re-use the cupboard had to be seen in the light of its past use as an acceptable storage place. It had been his understanding that he had had police advice that it was acceptable to store the .22 rim fire rifle there on a temporary basis during lambing. That was supported by his comment to Mr Scott that it was "acceptable", even if Mr Scott did not follow it up.

The pursuer's explanation for having the .22 rifle there should be accepted even if it was mistaken as it showed that he was not intent on deliberately flouting the law. He was being naïve but not wholly unreasonable in all the circumstances. Dr Sheddon, for example, had stated in his evidence that a locked cupboard in an alarmed house could be considered to be adequate and to have met the minimum legal requirements for secure storage. That was in stark contrast to the extreme view of Mr Scott that such an arrangement was wholly inadequate. It could therefore be said on behalf of the pursuer that it was not unreasonable for him to consider that he had securely stored his .22 rifle for temporary purposes by using a receptacle that had been viewed as adequate in the past. As was stated in 'Meikle' supra "a single aberration with a gun may not satisfy the test for revocation if the court can be sufficiently assured that a repetition is unlikely." That was echoed in the Home Office Guidance supra "the police should consider the likelihood of repetition". Given the pursuer's good character, a responsible individual who had subsequently spent a large amount of money in improving security, the court could be satisfied that repetition was unlikely. His new security system was "one of the best I have experienced in my role as FEO" (Mr Kyle Production 6/22). The fact that the break-in had occurred meant that the pursuer was unlikely to not set it again. As he said in evidence, the break-in had "cost me £35,000 and though money is not everything £35,000 is a salutary lesson."

It was objected by the defender that the pursuer's purpose in shooting at foxes to frighten them off rather than kill them was contrary to the conditions in his certificate which allowed the .22 rifle to be used "for shooting vermin and ground game" but there was no statutory definition of "vermin" in the Act, unlike, for example the Protection of Animals (Amendment) Act 1927, and the concise Oxford English Dictionary gave the example of foxes as a type of vermin. The Home Office Guidance accepted that such a rifle might "reasonably be permitted for use against (foxes) in certain circumstances." It was submitted that the pursuer was not in breach of his certificate on this ground. Both the pursuer's witness Dr Sheddon and the defender's witness Mr Grieve, confirmed that a farmer might well consider a fox to be vermin (cf the case of Walkinshaw v McClymont 1996 SLT (ShCt) 107). The fact that the certificate for the .22 rifle referred to vermin and the one for the .22 rifle specifically referred to foxes did not mean that it was reasonable to assume that foxes were excluded from the meaning of "vermin". A reasonable reading was that the .22 rifle could be used for all vermin including foxes, whereas the .22 could only be used for deer and foxes, no doubt at a longer range.

The similarity in the opinions expressed and in the material assessed by Mr Scott in his earlier memorandum (6/17) to what was contained in his later one (6/23) suggested that the police had made up their minds to remove the pursuer's certificates come what may. The result was that the Deputy Chief Constable had not received a balanced report from which she could make a reasoned decision. Mr Scott's recommendations were perverse and indicated that he had approached the pursuer's applications with a closed mind and without taking into account what the pursuer had said to him. He had never investigated the principal facts on which his opinions were based. In his evidence he stated that he only went to see the house and noted the comments made by the pursuer. He had not followed up those comments or discussed the issues with him. If he had asked the pursuer about the cut-outs in the cupboard he would have learned that the cupboard had been used and approved for keeping the pursuer's weapons prior to 1996. He would not then have been in a position to say that the pursuer's decision to store his .22 rifle "in such an inappropriate location is at best thoughtless and at worst criminally negligent" (6/17 at page 3). If the position was that he was well aware that the cupboard had been used historically for permanent storage of guns, it had been unreasonable and unwarranted to suggest that the pursuer "proceeded to spend time making cut-outs for 2 weapons ...". Mr Scott had no ground for the contention that the pursuer had been deliberately deceiving the enquiry officers about his normal storage of the weapons. He had told the enquiry officers the truth viz the metal gun cabinet. But just as you do not have to notify the police if you take guns out of a cabinet for sport and take them away elsewhere, so you did not have to notify them if you temporarily stored them in another place for a limited time and purpose. Mr Scott was simply trying to justify his unwarranted decision by categorising such behavior as a deliberate flouting of the law or as deliberately misleading officers of Fife Constabulary. He had approached the applications with a closed mind determined that they should be refused. Superintendent Pow's evidence relied on what had been said to him by Mr Scott and did not provide independent corroboration of Mr Scott's views.

In all the circumstances, I should sustain the pursuer's first plea-in-law and order the defender to grant both certificates.

(ii) Submissions for Defender

While revocation under Section 30 of the Act was subject to the Chief Constable's discretion, grant or renewal under Sections 27 and 28 was not. It was submitted that the pursuer was neither fit to be entrusted with a firearm nor could be permitted to have it in his possession without danger to the public safety or the peace. It was further submitted that he could not be permitted to have a shotgun in his possession either without danger to the public safety or to the peace. To assist in interpreting the meaning of these statutory tests, I was referred to a number of previous cases viz John Thomson v Chief Constable, Grampian 6^th September 2000; Andrew Denton v Chief Constable, Dumfries and Galloway 26^th October 2000; John Meikle v Chief Constable, Strathclyde 7^th May 2003; Adam Gordon v Assistant Chief Constable, Tayside 28^th September 2004; John McLeod v Chief Constable, Lothian and Borders 10^th March 2005; Michael Davis v Chief Constable, Central Scotland 5^th September 2005. I must commend Mr Munroe for his full research on these issues as all these cases were of assistance, particularly that of 'Davis' supra.

The basis for the defender's position in refusing to grant either certificate was the pursuer's failure to keep his rifle in its proper gun cabinet. It was a condition of both of his certificates that these weapons and their respective ammunitions "must at all times be stored securely so as to prevent, so far as is reasonably practicable, access to them by an unauthorised person." Such conditions were statutory in nature, imposed by the Firearms Rules 1998. The only circumstances in which the various guns did not require to be stored securely were set out in the certificates and were again imposed by the statutory rules viz in use, or being cleaner, repaired, or tested or in transit. Even in those situations, reasonable precautions had to be taken for safe custody.

While it was conceded that the certificates did not specify that the guns were to be kept in the gun cabinet, the pursuer was well aware that he had to do that to be in compliance with his certificate. He had declared as much in his former application forms and the pleadings acknowledged that is where they should have been kept. He gave evidence that following the break-in he admitted to the police "mea culpa".

There had been nothing in the evidence or in the pleadings to support the pursuer's position that one of the firearms enquiry officers had told him that he could keep his rifle elsewhere for a temporary purpose. That should be rejected as something that just never happened and in any event it should be rejected as an explanation because when he needed to use the rifle, he had both to take it from its container and go with it by car to the neighbouring farm. That was hardly "quick access".

The pursuer was clearly in breach of his firearm certificate by failing to keep ammunition for his .22 rifle separate from the rifle. He was in breach of both his firearms and shotgun certificate by failing to safeguard the keys. Even if the pursuer had kept all his weapons in the proper metal gun cabinet, he had put them at risk in keeping the keys for the cabinet in the pot pourri container. If the thief had found those keys, all the weapons would have been taken. In other words, even if the pursuer had complied with the obligation upon him by keeping all his weapons in the proper cabinet, he would still have been in breach by failing to safeguard the keys.

There was also the separate related matter of the use of the rifle which was stolen against foxes. The evidence of David Grieve, Mr Kyle and Mr Scott was that the rifle should not have been used to shoot foxes. Dr Sheddon tried to argue that the guidance allowed such a use. Such an argument should be rejected but even were the guidance to allow such a use, the pursuer's firearm certificate did not.

Although the position of Mr Scott was that at a meeting with the pursuer, the pursuer had said that he used the .22 rifle to shoot foxes and although his pleadings referred to shooting and controlling foxes, Dr Sheddon confirming that as far as he was concerned "to control" meant "to kill", the pursuer claims that there has been a misunderstanding. He did not shoot to kill but he either aimed at their feet or he fired into the air. Both such explanations should be rejected as incredible and witnesses said they were positively dangerous. These were just another example of the pursuer seeking to change his position to justify himself. This like the story about the information from the un-named firearms enquiry officer, should be regarded as reflecting badly on the pursuer's credibility.

While he had a new security system, there was no guarantee that people would still not try to break in. All that the security system could guarantee was that they would be recorded doing so. Indeed the evidence of John Pow was that the pursuer's premises were now at greater risk because of the previous break-in. Evidence had been led concerning the remoteness of the pursuer's property and the time it would take for a police response.

The police position in evidence was that they were not satisfied that the pursuer could be relied upon to activate his security system nor to store any weapons and ammunition and keys properly. Their position was that the pursuer breached the trust of the Chief Constable by keeping his .22 rifle in the bedroom cupboard together with its ammunition and, just as crucially, by failing to safeguard the key to that cupboard and the cabinet. On that basis, their position was that the pursuer was not fit to be entrusted with a firearm.

The suggestion had been put that the pursuer had now learned his lesson. He gave an assurance that he would keep his guns secure in the future but such an assurance had been given to firearms enquiry officers in the past and in the statutory forms over a number of years. What value could be put placed on such an assurance? As a result of the actions of the pursuer, a rifle and ammunition had fallen into criminal hands and the pursuer himself conceded that they could have been used for criminal purposes and there was thus a danger to the public safety or to the peace. In such a case, where through the pursuer's failure to comply with security requirements, a rifle had ended up in criminal hands it was submitted that both tests for holding certificates had been satisfied. I was invited to repel the pursuer's pleas-in-law and to sustain those of the defender.

Decision

(1) The Legal Framework

From my reading of Sections 27 and 28 of the Act and the various cases cited to me, where the reason for having the particular weapon is not an issue, it would appear that anyone applying for a firearms certificate has to meet both a 'fitness' test and an 'absence of risk' test, whereas anyone applying for a shotgun certificate has to meet the 'absence of risk' test only. The 'fitness' test would relate to the question of whether or not the applicant has the necessary qualities, attributes and abilities which would qualify him or her to be entrusted with a firearm. The type of characteristics that might be expected of an applicant would be that he or she would be law abiding, safety conscious, equable in temperament, honest and straightforward, moderate, level headed, restrained, possessing sound judgement, etc etc - ie all the qualities that represent a minimum risk to public safety from being allowed to possess a firearm. In that context, the applicant's past conduct would be relevant insofar as it demonstrated the presence or absence of such qualities.

The 'absence of risk' test, which applies to both firearms and shotgun applications, raises the question of whether or not there is a real risk to the public safety or to the peace from the applicant's possession of such weapons. In that context, the applicant's past conduct would be relevant insofar as it demonstrates a presence or absence of such a risk stemming from the applicant's possession of these items. Any adverse conduct would not need to comprise irresponsible conduct with the weapon in question. It might be enough that the conduct in question would tend to increase the risk of future irresponsible conduct involving the use of such weapons - ie the preventative approach. Examples from the cited cases would include: drink driving offences ('Luke' supra), poaching ('Ackers' supra), inability to avoid associating with known drug offenders ('Dabek' supra) and indecent assault ('Davis' supra). The presumptions of future irresponsibility or risk that might arise from such offences in those situations are, however, all rebuttable and the deciding authority would have to weigh up all the circumstances both pro and con. As to the type of possession for this test, I must disagree with the suggestion that the 'absence of risk' test is limited to showing what is likely to happen to the public safety or to the peace stemming purely from the applicant's having such a weapon physically on his person. The cases cited by Mr Munroe involving stolen weapons show that the considerations are wider than that. As he pointed out, the theft of such items while in the possession of the applicant create a danger or threat to the public safety. That threat is just as real whether or not the possession has been personal or indirect, through mere knowledge and control. In my view, the pursuer's "possession" of such a weapon for the purposes of Section 27(1)(c) and Section 28(1) of the Act would include the type of storage chosen by him to further his immediate purpose of protecting lambs during the lambing season - just as it was held to include leaving the weapon in question in a locked car in a public street overnight (vide 'Denton' supra); or leaving the weapons partially covered in the boot of a Landrover for 8 hours (vide 'McLeod' supra), or left partially hidden in the rear of a locked Landrover Discovery parked in a public carpark near to a ferry terminal while its owner was working on board a ferry, a commitment he found difficult to get out of (vide 'Napier' supra).

There is bound to be some evidence which is common to both those tests as the method of storage chosen may say something about the character of the person who chose it, ie, whether they would pass the 'fitness' test, as well as being a factor in the presence or absence of risk to public safety, ie, bearing on the 'absence of risk' test. The cases show, however, that even if an applicant fails the 'fitness' test, he may still pass the 'absence of risk' test (eg 'Shepherd' supra and 'Napier' supra) and even if he passes the 'fitness' test he may still fail the 'absence of risk' test (eg 'Dabek' supra).

The matter commonly arises once the applicant commits an offence, whether at statute or at common law and the police are then to assess matters following from that. In the instant case the pursuer was charged and prosecuted for a contravention of Section 1(2) of the Act but acquitted as there was no case to answer. I have little doubt that had the facts which I have found above been established beyond reasonable doubt in the context of a Crown Prosecution, then he would have been found guilty of such an offence. The question then is, not as it was in 'Meikle' supra viz whether the commission of a non-gun related offence can be causally linked to the risk of further adverse situations involving weapons, but, given that it was a gun-related "offence", should the commission of it per se mean that the inferences flowing from it are so strong against the pursuer that he should no longer be allowed to possess a weapon or were the circumstances such that no strong enough adverse inferences can be made against the pursuer and in reality (or at least on the balance of probability) he can still be trusted to have a firearm or there would be little or no risk to public safety or the peace from his having either or both a firearm or a shotgun. That, as I see it, is the nature of the issues that I have to decide.

(2) Assessment of Evidence

(i) 'Good Reasons'

The pursuer's evidence about why he needed a .22 rifle was that he found it to be the most sensible weapon to use in winter and in spring when his farmland was invaded by grey lag geese. It was not used to kill foxes but against foxes - to scare them away and to make sure they were off in a hurry. That was against a background of having lost 10 or 11 lambs to foxes in the last year. It was used to control vermin. He had in the past been troubled by mink at a reservoir on his land. So the .22 rifle was used to control vermin, including foxes. A shotgun was used to control feral pigeons and for recreation. With the exception of using the .22 rifle against foxes, the defender does not really dispute that the pursuer had a good reason for possession of both the .22 rifle and the shotgun. None of Mr Munroe's submissions were to the contrary effect. I have little difficulty therefore in finding that to be established, even if it does not cover use of the .22 rifle against foxes. The pursuer would still have to use it on smaller other quarry that the defender would agree were properly termed "vermin".

(ii) 'Fitness' Test

A lot of Mr Scott's criticisms of the pursuer would fall under the fitness test. He questioned his integrity and whether he could be entrusted to abide at all times by all the conditions in his certificates. The pursuer must have knowingly and deliberately misled the enquiry officers by stating that all his weapons would be kept in a secure gun cabinet whereas, in reality, he knew that he was storing his .22 rifle in a non-approved bedroom cabinet in a way that was both unsound and criminally negligent. His actings were indicative of a man who did as he wished irrespective of his legal requirements and who consistently and blatantly ignored the law. He was deceitful and likely to forget to set his alarm in the future (cf 6/23). The thinking behind that approach is quite clearly brought out in his earlier memorandum, 6/17 of Process, where he states:-

"I am completely at a loss to understand why, when he has a perfectly functional BS gun cabinet securely mounted in his bedroom, that he chose not to use this, and instead proceeded to spend time making cut-outs for 2 weapons in his adequately secured bedroom cupboard. The mere presence of these cut-outs seem to suggest quite clearly that the cupboard was used very regularly, if not permanently, for the storage of at least one weapon.

Therefore, the only conclusion I can reasonably draw is that his decision to store at least one weapon in such an inappropriate location is at best thoughtless and at worst criminally negligent ... his adaption of an insufficiently secure domestic wooden cupboard to store at .22 semi-automatic rifle, apparently on a regular basis ... clearly suggests that ... that he has failed to adequately ensure the safety of his .22 semi-automatic rifle and ammunition ... and has therefore created a threat to public safety and the peace." (vide pages 3 and 4)

Some of this approach evidently rubbed off on Superintendent Pow who stated in his first memorandum (vide 6/18 of Process):-

"For reasons that only he knows he had stored the weapon in a less secure cupboard, which he has to walk past a British Standard approved cabinet to reach. I cannot rationalise this other than to assume negligence or laziness on his part ..."

I consider that Sir Crispin's strictures on this approach are fully justified. It proceeds on errors of fact. It proceeds on the basis that the modifications to the bedroom cupboard were recent in origin and that the cupboard was where the pursuer kept his .22 rifle on a permanent basis. The evidence I have heard brings out that these assumptions within the body of Mr Scott's first memorandum are both wholly false and thus the conclusion reached on the basis of such an approach has been flawed to that extent and appears to colour his second memorandum. In looking afresh at the question of the pursuer's fitness to be entrusted with a firearm, I have looked at the circumstances to see to what extent the pursuer was acting bona fide throughout even if mistakenly. If he was not sufficiently safety minded, was he at least trying to be? If he was not adhering to the terms of his certificate by using his .22 rifle against foxes, did he at least genuinely and with good reason think that he might be? If he was not adhering to the terms of his certificate by not keeping his .22 rifle at all times in its metal gun cabinet, did he do so as an intentional act of deception or because he bona fide thought it was acceptable to do so? I explore these matters because, in my view, a person who has brought about an admittedly disastrous result by acting bona fide throughout is more likely to refrain from ever doing the same thing again than a person who has brought about such a result by dissembling or acting just as he or she pleased without regard to any other consideration.

Answering the questions posed, the pursuer was safety conscious at least to the extent of installing his original alarm system with CCTV cameras and was at worst forgetful in not going back to switch it on on a day on which he had a lot of other business to see to both at Annfield and in Perth. He was safety conscious to the extent of using a locked cupboard with a key hidden in a separate box of Kleenex tissues and moreover a locked cupboard which the police had previously found to be satisfactory before the BS gun cabinet or equivalent was required, once regulations were tightened following the Hungerford and Dunblane tragedies. He was safety conscious to the extent of acquiring such a gun cabinet when advised to do so and normally and as a matter of course keeping all his weapons in it plus their ammunition in a separately locked container within. The removal of his .22 rifle and ammunition into the less secure locked cupboard was for short-term purposes during the brief lambing season. While his arrangements can be criticised individually for their weaknesses and lack of percipience, seen as whole these are not the actings of a person who was being entirely cavalier about safety. That is to be contrasted with the case of George Mitchell relied on by the police. There the key to Mr Mitchell's gun cabinet was left within the lock as was the key to the ammunition compartment and the doors to both the cabinets and storage compartment were left open with two shotguns lying on the floor alongside the gun cabinet (vide 6/29 of Process). I consider that the pursuer in the instant case was at least trying to be safety conscious, whereas Mr Mitchell was clearly not.

As to the intended use of the .22 rifle to frighten off foxes being contrary to the terms of his certificate, what the certificate says is that "... the .22 rifle to which this certificate relates shall only be used for sporting purposes and for zeroing on Carlhurlie Farm, Lundin Links and on other land over which the holder has permission to shoot ..." (vide 6/6 of Process). The same certificate, however, states that "the .222 rifle and ammunition ... shall only be used for shooting foxes and deer on land suitable for the use of such a weapon where the certificate holder has authority to shoot." It would seem from that that the pursuer was not supposed to use his .22 rifle to shoot at foxes to kill them, only his .222 rifle. His position, however, was that he would not however have been shooting to kill, only frighten foxes. The police evidence about the effect of such a practice was clear and consistent and I accept the position to be as they state it. David Grieve stated that it would be a bad practice not to shoot to kill in the first place. His understanding was that the term "vermin" did not cover foxes. Shooting a .22 rifle to scare a fox simply would not work, whereas using something like a bird scarer might. George Kyle stated that it was not open to the pursuer to use his .22 rifle on foxes. It was not shown in the conditions attached to his certificate. Such a rifle should only be used to keep down vermin and he had never known a .22 rifle to be used for keeping down foxes. He could not condone the use of a .22 rifle for shooting foxes although there might be occasions, such as humane killing. "He should not actually be using a rifle close to buildings and roads anyway." When asked in cross-examination what about using a .22 rifle to frighten foxes, he replied "No. I would never agree with that." In re-examination the matter was touched on again. He asked "where would you aim a rifle if you were intending to scare a fox? At the ground? Up in the air? To do either would be entirely reckless." Mr Scott said much the same thing. A .22 rifle was required for shooting vermin or small quarry. A .222 rifle was for shooting foxes and roe deer. A .22 rifle was not a suitable weapon for shooting foxes. Shooting a .22 rifle in the air at or towards foxes would have been a reckless discharge. In any event, it would not have had much impact. The fox would not have heard it or noticed it. My reading of the Home Office Guidance is that, starting with the concept of "quarry", it divides that into small, medium and larger quarry, excluding from that the more exotic class of "dangerous game", ie lion, elephant, buffalo, bear etc (although again that is a continuation of the hierarchy of size). The table in chapter 13 (vide 6/25 of Process) states in the footnotes:-

"3 vermin and ground game and other small quarry - rat, hare, rabbit, grey squirrel and other similar sized quarry.

4 medium quarry - fox, feral cat and other similar sized quarry.

5 larger quarry - feral goat, deer, boar and other similar sized quarry."

Its understanding of "vermin" is "small quarry species, including game and pest species." The rifle cartridge most commonly used to shoot ground game and vermin was the .22 rim fire (vide para 13.17 of 5/4 of Process). On the fox, it comments that a .22 rim fire "is generally too low powered to be used against fox except at short range, but may reasonable be permitted for use against such quarry in certain circumstances" (vide para 13.23 ibid). It does not state what those circumstances are but from the police evidence, which I accept, they would relate only to the humane killing of an already wounded or ill fox. The police evidence established that any other use, of the kind contemplated by the pursuer, would be both dangerous and impracticable. Sir Crispin concentrated on the question of whether, objectively speaking, foxes were actually vermin. There can be no clear answer to such a question as the definition in the shorter Oxford English Dictionary is not repeated in other dictionaries, including the fuller Oxford Dictionary itself, and such a protean word as "vermin" will differ in meaning from region to region of the country and quite possibly from farmer to farmer. What can be established, however, is that the pursuer did genuinely consider a fox to be included in the term "vermin" and he would not have been alone in that assumption. To the question what did you understand you shoot with the .22 rifle?, his reply was "rabbits, pigeons, foxes if necessary, hares if within range. I was not aware that the .22 rifle was not for shooting foxes. I had always been assured by various persons that a farmer was properly entitled to use a .22 rifle against foxes if he decided the situation was appropriate." Under cross-examination, he stated "the .22 rifle was used for vermin control and scaring away foxes and geese. I used it when a fox was hovering around. A shot in the air or to his feet - something close enough for it to be scared. Ninety per cent of farmers would classify foxes as vermin." His supporting witness, Dr Sheddon, stated that "foxes in common parlance would be regarded as vermin". A snared fox might have to be dispatched with a .22 rifle. The majority of foxes were shot at night by people out lamping. When asked about foxes worrying lambs, he replied "the .22 rifle could be an appropriate scaring device rather than a more powerful rifle. An experienced person could use it at a 300 yard range." Having heard the police evidence, I would have to reject this witness's opinion on the use of a .22 rifle but the importance of his evidence and that of the pursuer is that they do establish, in my view, that the pursuer did think that his use of his .22 rifle to shoot at foxes was covered by his certificate as they were "vermin". Again he was acting bona fide in so doing. He was not deliberately breaking the conditions in his certificate. He was in that respect law abiding in both character and aptitude.

As to the remaining question, the pursuer's claim that his temporary use of his bedroom cupboard had been approved in the past, he stated in evidence "I was told by the Firearms Department that temporary storage was permissible. I did not set out deliberately to deceive them. The advice was from a firearms officer in the 1990s. I cannot recall who it was." PC Ness stated that "it was not mentioned to me that it was permissible to keep it there". David Grieve stated that "I cannot recall a separate cupboard in the bedroom. There was no need for a subsequent discussion about keeping it in a separate cupboard. It would have been knocked on the head at interview as a non-starter. It is just not acceptable." In cross-examination he denied that he had advised the pursuer to keep his weapon out of the gun cabinet for any reason. Superintendent Pow commented "I would doubt that any such information was given. Even if it was, common sense would suggest that the gun continued to be in the gun cabinet." George Kyle was not asked about this. David Scott did not follow up the pursuer's comment that he thought it was "acceptable". Mr Munroe submitted that this story about getting information from an unnamed firearms enquiry officer should be regarded as reflecting badly on the pursuer's credibility. I do not see it that way. The sequence of events was that the pursuer had had police approval to use his bedroom cupboard as a safe place for storage for some 27 years before changing over to the BS metal gun cabinet in 1996. The most probable time for him to raise with any firearms officer the feasibility of continuing to use his bedroom cupboard from time to time would be at the time of the changeover and before the certificates were renewed in 1997. The only officer who gave evidence who was around at this time and would have spoken to the pursuer was David Grieve. PC Ness, George Kyle and David Scott all came on to the scene after that. Mr Munroe's assessment of the pursuer as a witness does not entertain the possibility that the pursuer may have spoken to some other firearms enquiry officer of Mr Grieve's vintage and had that type of conversation with him. I cannot find that such a conversation definitely did take place. The pursuer believes that it did and I find him to be a credible and reliable witness. Whatever the exact truth of the matter, the significance of this part of the case is that it again demonstrates that it was the pursuer's genuine belief that he was acting with police approval in being able to store his .22 rifle in his bedroom cupboard as long as it was for a temporary purpose. That again establishes his bona fide actings in this matter.

Thus, although the police are objectively right about all these matters, viz that the pursuer was not being sufficiently safety conscious, he was not really permitted to shoot at foxes and none of the police witnesses who gave evidence supported his view that he had been given advice on his temporary storage of his .22 rifle, as far as fitness of character is concerned, all that is mitigated because throughout the pursuer was acting bona fide in the general (and not wholly unsupported) belief that what he had done was both reasonable and authorized and sufficiently safe. That being the case, I am satisfied that he has learned from his mistakes and would show the right attitude and character in doing his best to prevent any re-occurrence. He is, in short, basically a fit and proper person to have a firearm certificate and such a conclusion would assist in deciding whether or not he should also have a shotgun certificate as well.

(iii) 'Absence of Risk' Test

Judicial attitudes to negligent behaviour with weapons can differ. For some the commission of a weapons-related offence to do with safe storage is enough to establish in itself a failure to meet the 'absence of risk' test. As Sheriff Horsburgh stated in 'McLeod' supra:-

"[12] as to paragraph b of the sub-section, the appellants having left shotgun and live ammunition for it and for a rifle, in a vehicle unattended for a period of 8 hours gave ample reason to believe that he can no longer be permitted to have a firearm or ammunition without danger to public safety or the peace. Any lapse in the safe storage of a shotgun or ammunition is a serious matter, and this was a bad lapse. That the security of the locked vehicle could be overcome by the expedient of removing and replacing the back window demonstrates how great was the risk of danger. Quite rightly, the appellant was charged with 2 contraventions of the Act in respect of it. He had pled guilty to these charges thereby accepting he had not stored his shotgun and ammunition securely. These are offences of some gravity, and amply demonstrate the appellant's failure to appreciate the potential his conduct had for danger to the public safety and peace. It seemed to me to be reasonable to infer from that that a likelihood existed of danger to the public safety or peace, whether the appellant to be permitted to be in possession of a firearm or ammunition."

That is to be contrasted with the approach of Sheriff Ross in 'Denton' supra, who looked behind the mere commission of the offence to the likelihood of repetition, the nature of the subsequent precautions and the changed attitude of the offender. As he put the matter (at page 19):-

"I was not persuaded that the several facts and circumstances pointed to by the respondent established, on the balance of probabilities, that the possession of a shotgun by the appellant was or would be a danger to public safety. The causa causans of any such danger caused on 31 August was the criminal act of the thief. While the leaving of the gun in the vehicle was undoubtedly a causa sine qua non of any such danger on balance I was satisfied that the particular circumstances were unlikely to arise again and that the appellant's attitude following the theft and the precautions taken against its recurrence would guard against such danger."

That approach is echoed in the case of Lambie v Chief Constable, Tayside Police, No 5 on Mr Munroe's list of authorities dated 25 May 2000. Sheriff Principal McInnes indicated in his supplementary note in that case that the passage of time may act in favour of an appellant and show the unlikelihood that there would be "further repetition of the irresponsible conduct which led to the Chief Constable refusing his application ...". It is also supported by the dicta of the Sheriff Principal (Kerr) in 'Meikle' supra viz:-

"A single aberration with a gun may not satisfy the test for revocation if the court can be sufficiently assured that a repetition is unlikely ..."

I agree with the latter approach with the result that the court is entitled to take into account the effect of the passage of time since the event, the alterations made in the safety arrangements since the event and the effect the event has had on the appellant himself, all insofar as they have a bearing on the risk of repetition of the same kind of event or occurrence.

It was that risk that concerned George Kyle. The refusal to grant the certificates "was based primarily on the reasons for the earlier revocation, ie the failure to secure the firearms security ... I would have had no hesitation in granting the application but for the past revocation. I would have concerns that he was not fit to be entrusted with a firearm given the previous incident. He allowed a weapon to be stolen while loaded with ammunition." He commented on cross-examination "I would have hoped that he had learned a lesson from it but one cannot foresee the future so I do not know." Mr Scott stated that the fact that the keys to the bedroom cupboard were kept in a tissue box and the keys to the metal gun cabinet were kept in a pot pourri container was suggestive of negligence. Why do such a thing? Even the new security system did not guarantee that there would be no future break-in. Places like Buckingham Palace which had a high security rating could still be broken into. The pursuer could find himself back in the same position. The authorities needed to trust the pursuer to put all his guns in a secure container but he had consistently misled the authorities and it was consequently difficult to accept his word. In cross-examination, he confirmed that he could not trust the pursuer not to break the conditions of safe storage of the certificates. The events surrounding the break-in connoted a degree of forgetfulness and a laissez faire attitude, compounded by the weak arrangements about the keys. What had been convenient for the pursuer would make it convenient for others to carry out a similar successful break-in in the future.

There is no doubt that objectively the police are correct to say that the safety arrangements the pursuer had made on the day of the break-in were deficient in a number of obvious respects. The matter of security is dealt with at length in the Firearms Security Handbook 2005 produced by the Home Office, together with the Association of Chief Police Officers in England, Wales and Scotland and the British Shooting Sports Council (vide 6/27 of Process). A gun cabinet is normally considered to be reasonable security (2.17) but if a house needs additional security because of its high crime location or it is repeatedly targeted etc then the door locks could be strengthened (2.20) etc., plus installing an audible intruder alarm. Ammunition should be stored in its own individual secure storage, eg an integral lockable compartment within a gun cabinet (2.47) and as far as the keys are concerned, only authorized persons should have access to any of the keys for any cabinet etc containing firearms and Section 1 ammunition. Care needs to be taken in selecting locations for the storage of keys, particularly any spare sets, to avoid them being discovered and improperly used (2.59). Even if the pursuer had kept all his guns in his metal cabinet, on the day of the break-in, his arrangements about the keys in a pot pourri container in the same room as the gun cabinet would not have met the required standards.

What can be said in his favour, however, is that the pursuer has gone to considerable trouble and expense in upgrading the security attached to his weapons. He has spent some £35,000, as stated at page 4 of the Record, having "the security at his house upgraded by Moncrieff Alarms with Sigma Security including a new burglar alarm and a new CCTV system which records and stores images remotely. He has purchased a new gun cabinet to replace the damaged cabinet, which is bolted to the floor." According to George Kyle's report of 20 December 2007 (6/22 of Process) "the security system is one of the best I have experienced in my role as FEO." The passage of time since the break-in of some 20 months, without any recurrence or any similar criminal activity puts at naught the previous assessment of Superintendent Pow (on 2 April 2007, 6/18 of Process) that "experience suggests that the chances of a repeat break-in at these premises are now far higher given the remote location and "success" of the first break-in." Indeed this particular break-in remains the only one that the pursuer has ever suffered in 40 years at that address. The pursuer himself is a responsible minded individual who has been shocked by the turn of events and is contrite about the chances he took at that time of year by storing his .22 rifle for ease of access. He has vowed never to do the same again. While he is now elderly at 76, he is highly intelligent and active and I have no reason to doubt his firmness of purpose and his ability to carry through his resolve. All these factors go towards minimising the risk of repetition and at the end of the day I am satisfied that all these factors mean that there is no real risk in the pursuer's possession of either a firearm or a shotgun.

I have accordingly ordered the defender to grant these two certificates in similar terms to the previous ones and as far as expenses are concerned, although Mr Munroe dealt with these to some extent in his written submissions, Sir Crispin sought to have the matter dealt with at a later hearing and I have fixed one to deal with expenses accordingly.