Scottish Sheriff Court Decisions

 

 

Perth,       February 2009 Sheriff Principal Bowen QC

 

 

Act: Brown, Advocate

 

Alt: Artis, Advocate

 

 

 

 

 

The Sheriff Principal, having resumed consideration of the cause refuses the appeal and adheres to the Sheriff's interlocutor complained of dated 8 July 2008; finds the defender and appellant liable to the pursuer and respondent in the expenses occasioned by the appeal and remits the account thereof, when lodged, to the Auditor of Court to tax and to report thereon.

 

(signed) E Bowen

 

Sheriff Principal Lothian and Borders

 

 

 

 

NOTE:

 

1. The interlocutor which is the subject of the present appeal was pronounced in an appeal to the Sheriff under section 44 of the Firearms Act 1968. The pursuer and respondent is the holder of a shotgun certificate. By letter dated 5 September 2006 the defender and appellant intimated to the pursuer that his certificate was revoked under the provisions of section 30C(1) of the Act. The letter stated that the defender was "satisfied that with due regard to the public safety and danger to the peace I cannot allow you to continue to retain your shotgun certificate and shotgun". The pursuer appealed to the Sheriff who allowed his appeal and directed the defender to withdraw the notice of revocation. It is to be noted that, in terms of paragraph 4 of Schedule 5 Part III of the Act, the present appeal can proceed only on a point of law.

 

2. The Sheriff records in Finding in Fact 8 that the defender's decision to revoke the pursuer's shotgun certificate followed two allegations made against the pursuer. The first was that in July 2005 the pursuer and a friend, Mr Chris Reid, committed an offence under the Protection of Badgers Act 1992. The second was that in January 2006 the pursuer and two friends were engaged in ferreting for rabbits on ground near Blackford without permission from the landowner. In respect of the first matter the pursuer was prosecuted but found not guilty. In respect of the second matter he received a fixed penalty of £50 which he paid. (The precise offence is not disclosed but I take it to have been that of Trespass in Search of Game). In addition to these incidents the decision to revoke the pursuer's shotgun certificate took into account that when the certificate was issued in July 2003 the Deputy Chief Constable wrote to the pursuer warning him that should he come to the adverse notice of the police at any time in the future his suitability to remain a shotgun certificate holder would be reviewed.

 

3. Section 44(2) of the Firearms Act provides that an appeal shall be determined on the merits (and not by way of review); sub-section 3 provides that the court or sheriff hearing the appeal may consider any evidence or other matter whether or not it was available when the decision of the Chief Officer was taken. At the hearing before the Sheriff evidence was led of a number of episodes in addition to those already mentioned, commencing with an incident when the pursuer came to the attention of the police at the age of 13 for throwing eggs at a house in Inverkeithing. A number of other incidents, all involving, or alleged to have involved, the pursuit of game or vermin were also presented to the Court. These culminated in an incident on 29 April 2006 when the pursuer and Mr Reid were seen at a quarry near Aberdour where there was a peregrine nesting site. These incidents were all the subject of specific findings in fact in the Note which accompanied the Sheriff's interlocutor.

 

4. The Sheriff approached his decision by setting out a narrative of the evidence of each of the incidents, reaching certain factual conclusions, and also, in some instances, making certain observations on their relevance to the grounds for revocation of the shotgun certificate. Under reference to the case of Meikle v The Chief Constable Strathclyde Police (unreported, Sheriff Principal Kerr QC, 7 May 2003) the Sheriff observed: "There is no evidence whatsoever that the pursuer has in the past or is likely in the future to display any violent propensities. In the various incidents mentioned when asked to desist or leave he did so. There has been no repetition. Witnesses have made mention of a lack of maturity and irresponsibility on the part of the pursuer. I would agree that it is desirable for a holder of a shotgun certificate to display a high standard of conduct when in possession of a shotgun. However, failure to do so is not a ground for revocation. It is only where there is a risk of danger to the public safety or to the peace arising out of the holder's possession of a shotgun certificate that the defender is entitled to revoke the holder's shotgun certificate". He went on to observe: "I believe that the defender is in error in that, in effect, he has revoked the pursuer's shotgun certificate as he is of the view that there is a risk that the pursuer might be involved in future misconduct. However, such misconduct must involve the use or threatened use of a shotgun. It is not enough for the defender to have reason to believe that the pursuer is unfitted to be entrusted with a shotgun because he is regarded as being irresponsible for whatever reason or may be involved in future misconduct. That is the test in section 30A of the Act in respect of a revocation of a firearms certificate". The test in respect of a shotgun is a higher one".

 

5. In the concluding part of his Note the Sheriff said: "As regards an accumulation of incidents, it is still necessary for the defender to be satisfied in terms of section 30C(1). No one incident satisfies this and an accumulation of irrelevant and trivial incidents should not have been prayed in support. Having due regard to the terms of section 30C(1) of the Act and taking into account the incidents relied upon by the defender in revoking the pursuer's shotgun certificate and the evidence of other incidents relied upon by the defender in resisting this appeal, I am not persuaded that the pursuer cannot be permitted to possess a shotgun without danger to the public safety or to the peace".

 

6. In presenting the appeal counsel for the defender and appellant advanced his submissions in two chapters. First, he contended that the Sheriff had erred by carrying out his own investigations and had taken into account matters which had not been led in evidence. This, counsel argued, had affected his discretion both in relation to the merits of the case and was reflected in certain observations on the question of expenses. The second broad submission was that the Sheriff had erred in the application of the test which required to be applied in terms of section 30C(1).

 

7. The first ground of appeal arises for the following reasons. In dealing with the first incident founded on by the defender as a reason for revocation, the Sheriff outlined the circumstances and set out that the pursuer and Mr Reid had been "charged and acquitted at Dunfermline Sheriff Court". In essence there appears to have been no dispute that the pursuer and Reid were seen at an area, with dogs, which certain witnesses, including a Wildlife Crime Officer, said contained a badger sett. The pursuer and Reid denied knowledge of the badger sett, and said that they were looking for rabbits. Mr David Scott, the defender's Firearms License Manager, who was not an eyewitness to this event but who gave evidence at the appeal, said in the course of his evidence that "it was an issue of identity which had led to the acquittal". The Sheriff commented that it could not have been an issue of identity of the pursuer which led to his acquittal as two eye witnesses apparently identified him as being present. He went on to say that he, the Sheriff, indicated to the defender's solicitor "That I had been informed by the Sheriff who presided at the trial that there may have been insufficient identification of the area as an active badger sett".

 

8. Counsel maintained that the rules of natural justice required the Sheriff to confine himself to the evidence. Counsel referred to Learmonth Property Investment Co v Aitken 1970 SC 223 and Black v Black 1990 SLT Sh Ct 42 for observations regarding the inappropriate use by a Sheriff or member of another Tribunal of private knowledge. It was not necessary for the defender to prove that he had been prejudiced by such an occurrence; this could be assumed from the very fact that it had occurred: Errington v Wilson & Others 1995 SC 550 at 559E. In fact rejection of Mr Scott's evidence appeared to have caused the Sheriff to develop in his mind a prejudice against the defender's case. This was reflected in certain comments which he had made in dealing with expenses. He had referred to the defender's "stubborn defence to this appeal" and to the "lack of candour of the defender (sic) and his witnesses as to the reason for the failure of the prosecution against the pursuer".

 

9. Counsel maintained that further evidence of the Sheriff's prejudice was to be found in his treatment of the evidence relating to the second incident. This was dealt with in Findings in Fact 13 to 19. The pursuer and two others had been engaged in ferreting for rabbits without permission of the landowner. A box of live rifle ammunition had been found in a vehicle belonging to the pursuer which was parked nearby. A police officer, PC Wilkie, gave evidence before the Sheriff that this was on the dashboard of the vehicle. The pursuer and Mr Reid said that it was in a locked glove compartment. A letter was available from solicitors who had acted at the criminal trial following the incident which stated that witnesses had attended at Court and had confirmed that the ammunition had been in a locked glove compartment and was not visible from outside the vehicle. As a result the Procurator Fiscal had not continued with a charge which was directed at Mr Reid. Whilst the terms of the letter from the solicitors were not in dispute counsel maintained that there was no agreement that what was reported as having been said was true. The Sheriff had, nevertheless, rejected the evidence of PC Wilkie and gone further in criticising the defender in "vituperative terms". He said: "I am most dissatisfied that where a prosecution has been terminated, apparently as a result of disagreement amongst the police prosecution witnesses as to the material facts, that the defender should produce in these proceedings a completely new witnesses to these facts". There was, said counsel, no proper basis for rejecting the eye witness evidence of PC Wilkie.

 

10. Moving to the second chapter of his submissions counsel maintained that despite a large number of incidents being established in evidence the Sheriff had taken a "dismissive approach" to the question of whether the pursuer could be permitted to possess a shotgun without danger to the public safety or to the peace. It was well established that the issue raised by section 30C(1) was not directed to the possible misuse of a shotgun in circumstances of violence. It was "part of the equipment given to police officers for the preservation of good order in public": Ackers v Taylor 1974 1WLR 405 at 410. The Sheriff had before him 10 incidents where the appellant had come to the attention of the police. They all involved country pursuits and in several instances activities which did not have the consent of the relevant landowner. There were repeated violations of public and private rights. In some instances the pursuer was in possession of a shotgun at the time and in one case he was accompanied by a man who had a rifle. Counsel conceded that no single incident was the subject of repetition, and it could be said that no single incident was sufficient to justify revocation of the shotgun certificate. The Sheriff had not, however, dealt with the cumulative effect of these incidents and appeared to have approach the whole matter with a jaundiced eye arising out of his prejudice towards the defender's evidence. Further, it was not clear that he had applied the proper test in relation to section 30C which was set out by Sheriff Principal Macphail (as he then was) in the case of Walker v Chief Constable Lothian and Borders Police (unreported 11 May 2004). In paragraph 13 of his Note the Sheriff Principal indicated that the statutory test was twofold, involving first a determination of whether the Chief Constable, or the court, is satisfied that the holder of the shotgun certificate cannot be permitted to possess a shotgun without danger to the public safety or peace. If that question was answered in the affirmative there was a second question involving the exercise of discretion.

 

11. In the course of his submissions counsel for the defender and appellant was obliged to make two concessions, which in my view, he was bound to make. The first was that the Sheriff had made an appropriate distinction between the test contained in section 30A of the Firearms Act (whereby a firearms certificate may be revoked if the holder is unfit to be entrusted with a firearm) and that in section 30C of the Act which looks to the possibility of danger to the public safety or to the peace. The second concession was that, in essence, the second chapter of his submissions amounted to an argument that no reasonable Sheriff, properly directing himself to the facts and to the statutory test, would have arrived at the conclusion which the Sheriff did.

 

12. Standing the first of these concessions, it is difficult to see how it can be argued that there has been any error of law on the part of the Sheriff. He posed the correct question - namely whether the pursuer cannot be permitted to possess a shotgun without danger to the public safety or to the peace. It was not necessary to apply a twofold test. Whilst the observations of Sheriff Principal Macphail in Walker contemplate the exercise of discretion in favour of the certificate holder notwithstanding that a Chief Officer of Police is satisfied that he cannot be permitted to possess a shotgun without danger to the public safety or to the peace, any question of exercising discretion does not arise when the first question posed by the test is answered in the negative. The fact that the Sheriff does not appear to have applied the "twofold test" appears to me to be quite irrelevant; he simply did not need to proceed to the second stage.

 

13. In that situation one is left with a position, as submitted by counsel for the pursuer and respondent, that the Sheriff has looked at each of the incidents presented to him; has analysed each of them; has considered the aggregate effect of them, and has asked himself the correct question in law. Any suggestion that in his overall approach he has been "dismissive" of the suggestion of the possibility of danger to the public safety or to the peace is simply an attack on the conclusion which the Sheriff reached after properly weighing up the evidence. It is not a submission which raises a point of law and in consequence is not one which an appellate court can entertain. The matter of assessment of risk was, understandably, one of for the court of first instance and must necessarily depend to an extent on an assessment of the pursuer and the witnesses led on his behalf.

 

14. Counsel for the appellant's second concession was, I consider, probably necessary in order to bring the second chapter of his submissions into the area of miscarriage of justice of such a type that it would be necessary for an appellate court to interfere as a matter of law. I do not, however, consider that the Sheriff's reasoning in this case comes anywhere close to being so unreasonable as to justify interference. As I have indicated he gave consideration to each incident, drew conclusions about them, and then gave consideration to the overall effect. That was a matter for him. This was not in the nature of an exercise of discretion. It was a matter of judgment, based on relevant factors.

 

15. In these circumstances it appears to me that this appeal turns upon the issues raised in the first chapter of the submissions. The starting point for those submissions is the fact that the Sheriff made his own inquiry as to the reason for the acquittal of the pursuer in the prosecution under the Protection of Badgers Act. In respect of this matter I have to say that in my view it was irregular for the Sheriff to make any such inquiry, and he ought to have confined himself to the evidence led before him. It would have been all too easy for the Sheriff who presided at the prosecution to have let something slip about his view of the case which might have affected the Sheriff's attitude towards the present one. But the inquiry appears to have been confined to the reason for acquittal, and having made such inquiry the Sheriff did at least did bring the matter into the open. The situation is thus distinguishable from that in Learmonth Property Co where the information, possessed by one member of a rent assessment committee, was not disclosed to or canvassed by the parties (see the Opinion of Lord Cameron at page 223/4).

 

16. It cannot be the case that any irregularity in proceedings, however minor, necessarily vitiates them. The ultimate position advanced by counsel for the defender and appellant was that the Sheriff's Order should be recalled the matter remitted to another Sheriff for re-hearing. That is an extreme step which, in fairness to both parties, I would only be disposed to take if satisfied that, overall, one could not say that the Sheriff had dealt fairly and equally with them in arriving at his decision (cf Barr v British Wool Marketing Board 1957 SC 72 cited in Errington v Wilson). Having brought the piece of information which he had obtained privately into the open, I am far from persuaded that unfairness of that type ensued.

 

17. Moreover, it falls to be observed that the evidence of Mr Scott about the reason for the pursuer's acquittal was hardly material to the issues which the Sheriff required to decide. The whole circumstances of the incident involving the badger sett were before the Sheriff, including the evidence of eye witnesses to the incident. Discounting the evidence of Mr Scott as the reason why the trial collapsed did not affect the Sheriff's view of the significance of the incident. He would have been entitled to hold the full nature of the pursuer's involvement proved on the evidence led before him. As it was he considered, partly as a result of a concession, that even if the pursuer had been convicted of the incident that would not be enough to justify revocation of his shotgun certificate.

 

18. It only remains to consider whether there is any substance in the suggestion advanced by counsel for the defender and appellant that the tenor of the Sheriff's remarks in other areas showed that he had formed a biased view of the defender's position for which there was no evidential justification. I have a degree of sympathy with the irritation which must be felt at certain of the Sheriff's observations which I consider to have been intemperate. It was particularly unnecessary to refer to the defender's "stubborn defence to the appeal". A view had been taken, which was not without justification, that the pursuer's shotgun certificate should be revoked. The defender could do nothing other than resist the appeal. It is true that certain of the incidents founded on were trivial; but even if some of them were to be regarded as such I can understand the view that it was appropriate to bring out the fact that the pursuer had been the subject of police attention on a number of occasions. As for the evidence of PC Wilkie in relation to the incident concerning ammunition found in a vehicle, an expression of "dissatisfaction" that this evidence should be led was superfluous. What might have been said is that there did appear to be witnesses who contradicted that position, as was evidenced by the letter from the solicitors engaged at the trial. The contents of that letter were perfectly admissible as hearsay evidence in civil proceedings. That incident was again one in which the Sheriff had the whole evidence before him. If he accepted the evidence of the pursuer and Mr Reid, as he appeared to do, there was little alternative but to reject the evidence of PC Wilkie. The fact that the Sheriff adopted that position does not appear to me to be evidence of undue bias.

 

19. In all these circumstances I do not consider that there are grounds for interference despite some misgivings about the tone of some of the Sheriff's observations. The appeal is refused. The proceedings should nevertheless serve as a salutary warning to the pursuer about his future conduct.