Scottish Sheriff Court Decisions

BSHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT FALKIRK 2014SCFAL39
	Case No: B804/11 JUDGMENT   by   SHERIFF JOHN K MUNDY   in appeal under Section 44 of the Firearms Act 1968   by   CA   Appellant;   against   THE CHIEF CONSTABLE   Respondent: ________________

Act:  Burr, Advocate; 

Alt:  Clayson;

 

Falkirk, 23 September 2013

 

 

The Sheriff, having resumed consideration of the cause

 

FINDS IN FACT

 

[1]        The appellant is CA.  The respondent is the Chief Constable, Police Service of Scotland, Police Headquarters, Randolphfield, Stirling FK8 2HD.  The respondent was formerly designed as the Chief Constable, Central Scotland Police at the said address in Stirling.

[2]        The appellant made an application to the respondent for the grant of a shotgun certificate which was received at the respondent’s headquarters on 17 December 2010.  The respondent refused the appellant’s application and his decision was intimated to the appellant by way of a letter dated 12 October 2011.  That letter forms 6/1 of process. 

[3]         The appellant wishes a shotgun certificate for sporting purposes including clay pigeon shooting and the shooting of game. At present, he engages in those pursuits under the supervision of a certificate holder. He owns a shot gun but it is kept by another on his behalf.

[4]        The appellant is 34 years of age.  Since around 2009 he has been a self-employed businessman with interests in various licensed premises in the Falkirk area and elsewhere. He holds a personal licence from Falkirk Council to operate licensed premises.

[5]        The appellant has a partner MF.  He has been in a relationship with her for around 5 years.  They have lived together for around 4 years along with MF’s son A. MF is also involved in the licensed trade.  She is designated premises manager for the appellant’s premises in Falkirk. She also holds a personal licence from Falkirk Council.   

[6]        On 7 May 2008 the appellant was convicted of reset of a motorcar.  He was fined £1,000.  On 12 May 2009 the appellant was convicted of driving a motorcar at 66 mph in a 30 mph zone.  He was fined £150 and his license was endorsed.  On 12 March 2011 the appellant was convicted of using a mobile phone whilst driving. 

[7]        On 14 December 2009 the appellant was found to be in breach of a supervised attendance order.  The appellant had put forward ill-health as a reason for non-compliance and the order was allowed to continue.

[8]        In addition the appellant has been charged by the police with various offences on a further 14 occasions between 2002 and 2011.  Those matters did not result in criminal convictions.  The majority of the charges related to road traffic matters.  Three of the instances related to the provision of unlicensed stewarding/security services at licensed premises in Alloa. In relation to those cases the reporting officer commented inter alia: 

“The accused… shows contempt for the current licensing system, which he believes is over the top and not required.  The accused works at the locus every week and appears to be flaunting his own, his company’s and his legal responsibilities in respect of the offence libelled.”

 

[9]        Another of the charges related to an allegation by MF’s son, A that the appellant had shot him on the leg with a ball-bearing gun.  This is alleged to have occurred in around April 2009.  Police became involved following an allegation that A had fired a ball-bearing gun at another 10 year old.  Officers spoke to the appellant and MF.  Following that visit A made an allegation that the appellant shot him in the leg causing a bruise.  The appellant and also MF denied that this had occurred and they maintain their denial. 

[10]      In April 2009 a joint police and social work investigation was undertaken.  Social services applied to the sheriff for a child protection order in order to remove A from the care of MF and the appellant.  The sheriff did not grant the order.  On 19 May 2009 a child protection case conference was held and it was decided that A’s name should be placed on the Child Protection Register under the category “risk of physical harm”.  His name remained on the register until January 2010.  In addition, the matter was referred to the Children’s Reporter and became the subject of proceedings before the children’s hearing.  The grounds of referral were not accepted by the appellant or MF and were referred to the sheriff.  The grounds were found proven by the sheriff and the matter was returned to the children’s hearing.  A was then made the subject of compulsory measures of supervision at a children’s hearing in December 2009.  Those measures remained in force until 13 July 2010 when the supervision requirement was terminated at the children’s hearing. 

[11]      Another of the charges preferred but not leading to a conviction related to an allegation of reset by the appellant of a police baton, two sets of a handcuffs and a handcuff key.  This arose as a result of a search of the appellant’s house by the police following the receipt of information.

[12]      The appellant has been subject to police investigation for other matters not leading to a charge.  In particular an allegation was made that on 24 April 2009 the appellant punched another man in the face at commercial carwash premises.  The appellant was also interviewed in connection with an alleged assault on 5 August 2006 perpetrated by other persons. 

[13]      In his application for a shotgun certificate the appellant declared his conviction for reset but did not declare the two road traffic convictions or the breach of the supervised attendance order. 

[14]      In relation to his premises known as [ name]  in Falkirk, the appellant has been awarded certificates by Falkirk Delivers being the trading name for the Business Improvement District, a body elected by businesses in Falkirk.  They certified achievement of certain standards in relation to inter alia prevention of crime and public safety.

[15]      MF’s son, A has had a history of behavioural difficulties with a pattern of oppositional and sometimes aggressive behaviour.  This pattern had been most prominent at home and has proved challenging.  There have also been difficulties at school where he has got into trouble as a result of his behaviour towards fellow pupils. In around March 2009, he fired a ball bearing gun at another child hitting the child in the leg. The police spoke to A and MF about the matter. The event is referred to in Finding in Fact [9].  In about February 2012 A was referred to the Child and Adolescent Mental Health Service and has been assessed by Dr Clive Greenshaw, Consultant Child and Adolescent Psychiatrist. In November 2012 A moved into residential care following an incident where he had threatened members of his family with a knife.  In his letter to A’s GP dated 22 April 2013 (5/2, item 1 of process) Dr Greenshaw indicated an Autistic Spectrum Diagnosis.  This is consistent with the findings of Dr Lucie MacKinlay, Clinical Psychologist for Looked After and Accommodated Children in her assessment of 28 March 2013 (5/2, item 2 of process).  As at the date of Dr Greenshaw’s letter, the family, the social work services, staff at the residential establishment and other support services were attempting to work together with a view to having A return home.

[16]      The appellant has a good reputation as a businessman in the local community.  However, he has over the years displayed a tendency towards non-compliance with the law. 

[17]      The presence of a shotgun in the home would, if A were present, create a dangerous situation given his behavioural difficulties. 

 

FINDINGS IN FACT AND LAW
[1]        The appellant has a good reason for possessing a shotgun.

[2]        The appellant’s tendency towards non-compliance with the law together with the presence of A in the family home would, on the balance of probabilities, create a risk of danger to public safety. 

 

FINDING IN LAW
The appellant cannot be permitted to possess a shotgun without danger to the public safety or to the peace.

 

INTERLOCUTOR
THEREFORE dismisses the appeal and sustains the plea-in-law for the respondent to that extent;  repels the first plea-in-law for the appellant as not being insisted upon;  repels the second and third pleas-in-law for the appellant;  certifies the appeal as suitable for the employment of junior counsel;  finds the appellant liable to the respondent in the expenses of the appeal, except insofar as already dealt with; allows an account thereof to be given in and remit same when lodged to the auditor of court to tax and report. 

 

 

 

 

 

 

NOTE:-

Introduction

[1]        This is an appeal against the refusal by the respondent to grant the appellant a shotgun certificate.  Curiously, the application is not lodged in process but it appears to have been received by the respondent on 17 December 2010, the letter refusing the application being dated 12 October 2011 (6/1 of process).

[2]        This appeal has a protracted procedural history.  The appeal in the form of a summary application was lodged on 2 November 2011.  After sundry procedure the evidential hearing appointed to take place on 26 April 2012 was discharged on the day on the respondent’s motion, the respondent being liable to the appellant in the expenses relating to that.  Thereafter evidence was heard over three days with submissions on a fourth day.  Day one was on 22 June 2012.  On 20 July 2012 the case called for the second day of evidence but that hearing was discharged as parties wished to continue the matter for discussions with a view to a resolution.  Those discussions did not bear fruit and on 1 August 2012 a further diet was fixed to hear evidence on 2 October 2012.  On that day evidence was led and a further day appointed for 11 December.  On 11 December 2012 the hearing was again discharged due to the non‑availability of witnesses.  A third day was assigned for 5 March 2013.  On that day the hearing was discharged because of the withdrawal of agents for the appellant, who then became reinstructed but who had however countermanded the witnesses.  A further date was fixed for 21 March 2013. On that day the hearing was again discharged as agents for the appellants had forgotten to instruct counsel.  I indicated on that occasion that the delay in the disposal of the case was unacceptable given that this was a summary application to be disposed of summarily (section 50 of the Sheriff Courts (Scotland) Act 1907).  I indicated that the further evidential hearing should take place with the least possible delay and a further date was ultimately appointed for 20 June 2013.  On that day the third and final day of evidence was concluded, the matter being continued for submissions until 28 June 2013.  Having heard submissions on that day, I made avizandum. 

[3]        It is perhaps inevitable when matters proceed on the basis of evidence led that there will be some delay occasioned by that process.  However, by no stretch of the imagination could I regard this case as being dealt with summarily as required by the statute.  Be that as it may, having heard evidence, I have made findings in fact and law.

[4]        At the evidential hearings the appellant was represented by Mr Burr, Advocate and the respondent by Mr Clayson, Solicitor. The appellant gave his evidence on day one.  On day two MF gave evidence.  On day three witnesses AF, GS and KD gave evidence and the appellant’s case was concluded.  On the same day the sole witness for the respondent, Inspector Derek Napier gave evidence.  Submissions were given orally on day four, written submissions also being presented on behalf of the appellant.

[5]        As regards those who gave evidence, the appellant Mr CA tended to concentrate, perhaps understandably, on his reputation in the local business community and to focus on that rather than his previous convictions or his involvement with the police.  He did not appear to acknowledge that there may be concerns in relation to his holding a shotgun certificate.  He did not appear to me to have insight into those concerns.  MF gave evidence which was supportive of the appellant but I formed the impression that she was rather defensive when confronted with his record and previous police involvement.  The other witnesses AF, GS and KD were effectively character witnesses.  They all spoke highly of the appellant but were not generally aware of his involvement with the police.  AF of A local pub watch group spoke of the appellant’s good character and reputation in the licensed trade in the Falkirk area. KD was a friend and formerly in the licensed trade and was similarly supportive. GS was a friend and shooting partner of the appellant. As a certificate holder, he accompanied the appellant when shooting and indicated that he had no concerns as regards the appellant’s use of a gun. For the respondent, Inspector Napier gave his evidence in a straightforward manner and I had no reason to doubt his credibility or reliability. He spoke to the Memorandum (6/1, item 2 of process) referred to below. He was the one who made recommendations to his superiors as to the merits of the appellant’s application.

[6]        The evidence as regards A’s behavioural problems were the subject of agreement in a joint minute.  In particular the letter from Dr Clive Greenshaw and the assessment by Dr Lucie MacKinlay are agreed to the extent that their “contents are true and accurate.”  This was clarified by Mr Burr and Mr Clayson to mean, not that the findings of Dr Greenshaw and Dr MacKinlay were conclusive but that the documents represented evidence of their findings.  Ultimately, therefore, the evidence was for me to consider and to weigh.  However, no issue was taken by either party in relation to that evidence and I saw no reason to reject it.  Those documents form the basis of my findings in relation to A’s behavioural problems.

[7]        An important piece of evidence was the memorandum prepared by Inspector Napier addressed to his superior, Superintendent Buist dated 18 March 2011.  This document provided the background information to inform the decision of the respondent (in the form of the Deputy Chief Constable).  This document contains details of “Convictions”, “Other Charges Preferred – Non-Convictions” and further information headed “Crimefile – Suspect”.  The document contains other information under the heading “Vulnerable Persons Reports”.  In the document Inspector Napier also draws certain conclusions and makes certain judgments.  My understanding was that there was no dispute as to the “Convictions”.  For the avoidance of doubt those included the convictions for reset of a motorcar, speeding and using a mobile phone whilst driving.  Under that head were also included a matter relating to a non-conforming registration plate and breach of a supervised attendance order.  In relation to the “Other Charges Preferred – Non-Convictions”,  I did not understand the appellant to dispute that charges were preferred in relation to those 14 matters between 2002 and 2011.  As regards the matters under the heading “Crimefile – Suspect” they were two in number and the allegations were of assault and breach of the peace in commercial carwash premises and another allegation of assault by others in relation to which the appellant was interviewed.  Whilst the appellant denies any involvement in the assaults, I did not understand him to dispute that an allegation was made in relation to the carwash incident and that he was interviewed in relation to the other matter. 

[8]        The information under the heading “Vulnerable Persons Reports” relates inter alia to the allegations that A had fired a ball-bearing gun at another child and also the allegation by A that the appellant had shot him in the leg with a ball-bearing gun.  There is then information about the involvement of social services, the convening of a children’s hearing and a referral to the sheriff.  In relation to this last aspect, it appears not to be disputed that the grounds of referral were found proved by the sheriff.  However, there was no evidence of what facts were alleged in support of the grounds of referral or indeed precisely what the grounds of referral were.  It may be assumed that the referral related to the incident where A alleged that the appellant had shot him in the leg, but beyond that no solid facts can be established.  The appellant himself denied the allegation in his evidence and his position was also supported by MF.  In the absence of evidence from A or any other direct source of evidence there is no question of me being able to conclude, on the balance of probabilities or otherwise, that the allegation is proved.  What I am able to conclude is that an allegation was made, that it was subject of a referral and the grounds were established.

 

Statutory framework

[9]        Section 28 of the Firearms Act 1968, as amended, provides inter alia as follows:

            “28 Special provisions about shot gun certificates.

1. Subject to subsection (1A) below, a shot gun certificate shall be granted or, as the case may be, renewed by the chief officer of police if he is satisfied that the applicant can be permitted to possess a shot gun without danger to the public safety or to the peace.

      (1A) No such certificate shall be granted or renewed if the chief officer of police—

             (a) has reason to believe that the applicant is prohibited by this Act from possessing a shot gun; or

             (b) is satisfied that the applicant does not have a good reason for possessing, purchasing or    

                 acquiring one…”

 

 

Section 44 of the Act provides as follows:

“44 Appeals against police decisions.

(1) An appeal against a decision of a chief officer of police under section 28A, 29, 30A, 30B, 30C, 34, 36, 37 or 38 of this Act lies—

(a) in England and Wales, to the Crown Court; and

(b) in Scotland, to the sheriff.

(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.

 

 

Submissions

 

[10]      Mr Burr for the appellant moved the court to sustain the pleas-in-law for the appellant to repel the plea-in-law for the respondent.  He moved the court to grant decree in terms of the first crave and to direct that the respondent grant the appellant a shotgun certificate.  He also moved for the expenses of the appeal and sought certification that the cause was suitable for the employment of junior counsel.  In his submissions Mr Burr referred to the statutory provisions and also various authorities.  In recognition of the nature of the jurisdiction of the court on appeal – that it is to be determined on the merits (and not by way of review) – Mr Burr did not insist on his first plea-in-law.  The previous convictions were accepted but he pointed out that most of them were for road traffic offences and there were no previous convictions involving firearms.  It was submitted that previous criminal convictions per se are not a bar to obtaining firearms or more specifically a shotgun license (Spencer-Stewart v Chief Constable of Kent [1989] 89 Cr.App.R 307).  Those which were not road traffic matters related to breaches of liquor licensing legislation and also breach of a supervised attendance order.  In relation to the latter, this was mitigated by the fact that the appellant was, at the time, suffering from meningitis and a heart condition and that he ultimately completed the terms of the order albeit “lighter duties”.  He referred to his client’s good character and also the probity required of the holder of a liquor licence.  He submitted that the previous convictions would not in themselves be sufficient for refusal of a shotgun certificate in light of the statutory test which involved “danger to the public safety or to the peace”.  He submitted, again under reference to Spencer-Stewart that where someone committed offences however serious which “do not involve the slightest risk or likelihood of use of a shotgun, then that in my judgment… is not a ground for refusing or revoking a licence.”  He also referred to the case of Luke v Little 1980 SLT (Sh Ct) 138.  That was a case referred to by the court in Spencer-Stewart.  In that case the sheriff had equated irresponsibility with a car with irresponsibility with a gun.  Mr Burr submitted that the case could be distinguished.  Mr Burr submitted that, in any event, the court could take into account the passage of time and maturity or change of character of the appellant in applying what has been termed the “absence of risk test”.  In this context he referred to a judgment of Sheriff Evans in Grieve v Chief Constable, Fife Constabulary 2009 SLT (Sh Ct) 5. In allowing the appeal against refusal of a certificate, the sheriff took account of the passage of time since an event involving elapse in security in relation to a firearm and also the alterations made by the appellant in the safety arrangements since that event.  In relation to the alleged shooting of A on the leg with a ball-bearing gun, it was submitted that this had not been proved and that given the nature of the allegation there would require to be cogent evidence to establish it on the balance of probabilities.  He referred to various authorities in this regard.  His client denied the alleged assault at a carwash and as far as the failure to disclose his full convictions on the application form, it was submitted that this was clearly not a deliberate act on his part.  Lastly, Mr Burr referred to Meikle v Chief Constable, Strathclyde Police, a decision of Sheriff Principal Kerr dated 7 May 2003.  In that case the Sheriff Principal, having reviewed the authorities, set forth an analysis of the approach that was required.  Mr Burr concluded his submissions by renewing his motion to allow the appeal.

[11]      Mr Clayson for the respondent invited the court to refuse the appeal.  He referred to the case of Davis v The Chief Constable, Central Scotland Police, a decision of Sheriff Principal Dunlop dated 5 September 2005.  In line with the observations of the Sheriff Principal at paragraph [21] it was submitted that there was no necessary coincidence between reputation and character.  He submitted that the character witnesses who had given evidence on behalf of the appellant did so without knowing about the allegations against the appellant including that involving the alleged use of a ball-bearing gun.  I was invited to exercise caution in relation to the appellant’s evidence.  It was submitted that he was a person who had disregard for the law.  He had come to the attention of the police on a great number of occasions.  As far as the allegations which did not lead to a conviction, the court did not require to accept that those were true or not.  What was important was his approach to them.  It was submitted that the appellant had an attitudinal issue.  He could not understand why there might be a concern regarding his application.  The convictions showed an attitude of recklessness and disregard of other persons.  Reference was made to the evidence of Inspector Napier which included reference to the allegation of shooting A in the leg.  It was significant that when interviewed following the allegation both the appellant and MF refused to answer questions on legal advice.  As far as the contention of the appellant that A was a compulsive liar, there was nothing to back that up – either in the letter from Dr Greenshaw or the assessment by Dr MacKinlay.  In any event, Mr Clayson submitted that it would be dangerous to bring a lethal weapon into the home in such circumstances.  He also referred to the evidence that the appellant had purchased shotguns but that they were held by a third party on his behalf.  That evidence demonstrated a lack of respect for the requirements of licensing.  Again under reference to the case of Davis, paragraphs [16] and [17] it was submitted that past conduct was capable of yielding the conclusion that a person cannot be permitted to possess a shotgun without danger to the safety of the public or to the peace.  It was a question of considering that conduct set against the other circumstances of the case.  It was submitted that the appellant’s general approach was enough to demonstrate that he could not be trusted to possess a shotgun.  That would undoubtedly be the case if the allegation regarding the use of the ball-bearing gun were to be proved.  Even if that allegation were not found to be proved, there was enough in the evidence, looked at as a whole, to cast doubt on the merit of the application.  In concluding, Mr Clayson indicated that he was not suggesting that there was not a “good reason” for the appellant to possess a shotgun.  What was being suggested was that he was not a person that should be permitted to possess such a thing without danger to the public safety or to the peace. 

[12]      As regards expenses, it was submitted by Mr Clayson that those should follow success and I did not understand Mr Burr to demur.  Mr Clayson did however oppose the sanctioning of the case for counsel.  He submitted that it was a case which was dealt with in the sheriff court and could have been dealt with by a solicitor.  It was not sufficiently complex or difficult to justify sanction. 

 

Discussion
[13]      It was common ground that this appeal is to be determined on the merits and not by way of review.  In coming to a decision the court may consider any evidence or other matter whether or not it was available when the decision of the Chief Constable was taken.  There was, in the event, a good deal of evidence in this case, including material that was not before the Chief Constable. 

[14]      There was also no issue as to whether or not the appellant had good reason for possessing a shotgun.  His evidence was that he wished a certificate so that he may possess a shotgun for sporting purposes and it was not contended otherwise on behalf of the respondent. 

[15]      The issue was whether or not the court could be satisfied that the appellant could be permitted to possess a shotgun without danger to the public safety or to the peace.  As is clear from the authorities referred to, whether the statutory test is met in any case will depend on the particular circumstances of that case.  It is not in dispute, however, that the danger to the public safety or the peace must be shown to be a danger related to the possession of a shotgun.  As observed by the Sheriff Principal in Evans v Chief Constable, Central Scotland Police 2002 SLT (Sh Ct) 152:

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

 

However, it is clear that past conduct involving the use of a shotgun is not a necessary requirement before the statutory test can be met.  Whether past conduct yields to a conclusion that a person cannot be permitted to possess a shotgun without danger to the public safety or the peace depends upon the nature of that conduct when set against the other circumstances of the case.  It is also important to recognise when assessing whether there is a danger relating to the possession of a shotgun that the assessment is not limited to showing what may happen to the public safety or to the peace stemming purely from the applicants having such a weapon physically on his person.  As observed by Sheriff Evans in Grieve, the considerations are wider than that.  He observed at paragraph [28]: 

“… the theft of such items while under possession of the applicant creates 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.”

 

            As to what is meant by the phrase “without danger to the public safety or the peace”, I adopt the analysis of the Sheriff Principal in Davis.  At paragraph [18] he observed 

“It seems to me that, in the context of this section, the word ‘danger’ is synonymous with ‘risk’ or ‘putting at risk’ and that when one speaks in terms of risk one is concerned with a degree of probability which, according to the circumstances, may fall within a range which it has highly probable towards one end and improbable though nevertheless possible towards the other.  In my view it would be as accurate to speak in terms of a ‘risk’ or ‘danger’ of something happening if it were improbable though possible as it would be if it were highly probable.”

 

In paragraph [19], the Sheriff Principal observed that this approach accorded with what the Sheriff Principal said in Evans when he referred to “risk”.  Sheriff Principal Dunlop when on:

            “Risk may be high or low and in relation to future events it is a term apt to cover a wide variety of circumstances, including those which might only possibly emerge.  It seems to me therefore that, in addressing the statutory test in section 30C, the sheriff does not have to be satisfied on a balance of probabilities that damage to the public safety or peace will occur from the appellant’s continued possession of a shotgun but that it is sufficient that he is satisfied that there is a risk (which is not trivial) that it might occur.”

 

[16]      Also in Davis, Sheriff Principal Dunlop at paragraph [21] observed that there is no necessary coincidence between reputation and character:

            “The fact that the appellant has exhibited and exemplary character to others does not necessarily mean that that reputation is an accurate reflection of his true character.  Misconduct is rarely committed in full public view and it is not uncommon for a witness to speak highly about the character of a person without being aware of the details of a particular incident which may not reflect so favourably on the person whose character is being discussed.”

 

[17]      At paragraph [23] in Davis the Sheriff Principal rejected the suggestion under reference to Meikle that concerns regarding an appellant’s disdain for authority or lack of judgment were irrelevant considerations.  He held that the sheriff who dealt with the matter at first instance was well-founded in thinking “that issues such as the appellant’s state of mind and the other characteristics of his personality are potentially relevant to the question of whether the statutory test is satisfied.”

[18]      In considering the instant case I have adopted the approach expounded by Sheriff Principal Dunlop in Davis. 

[19]      One other matter of law should be mentioned.  It was common ground that the relevant standard of proof was on the balance of probabilities.  There was an issue between the parties as to what this meant in the context of more serious allegations such as the allegation that the appellant shot A in the leg with a ball-bearing gun.  Mr Clayson did not agree with the proposition of Mr Burr that there required to be a particular cogency. In relation to this incident, I have already given an indication of my view given the paucity of evidence.  However, as regards the application of the standard of proof I would simply adopt the approach of Baroness Hale in Re B [2008] 4 All ER 1 who stated at paragraph 70:

“Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”  The inherent probabilities of the alleged event occurring – the more serious the allegation the less likely it is to have occurred – are simply matters to be taken account of in deciding where the truth lies.  Common sense dictates that where there are serious allegations, the court should take the greatest of care in considering those allegations before they can be found proved. 

[20]      As it happens, I have not been able to conclude that the event involving the alleged use of the ball-bearing gun by the appellant occurred and that for the reasons already given.  What I have been able to find is that the matter was the subject of a children’s hearing and a referral to the sheriff.  The grounds of referral were found to be established.  That is a matter not in dispute.  What I do not know is precisely what those grounds were nor do I know the statement of facts upon which they proceeded.  For example I do not know whether it was established that the use of the gun was deliberate or reckless. That diminishes the importance of this issue, but it does not render it irrelevant.  

[21]      A finding of the sheriff in relation to the allegation cannot be entirely ignored, particularly where it appears that A was subsequently subject to statutory supervision as a result.  It is in any event just one of many other matters which were the subject of police investigation relating to the appellant.  Having regard to those matters, the appellant’s previous convictions and my impression of him as a witness, I concluded that he was a person who displayed a certain disregard of the law.  The way I have put it in my findings is that he has displayed a tendency towards non-compliance with the law.  That, in my view, is a critical matter in the determination of this appeal.  As indicated in Davis, such considerations are relevant.  It is true that there was a good deal of evidence of the appellant’s good character.  However, that evidence has to be seen in the context of the appellant’s extensive involvement with the police over the years as one who was the subject of investigation, matters in relation to which the character witnesses would have little or no knowledge.  It is also of importance, in my view, that A, while presently being accommodated, would normally be within the home.  Given his difficulties, I consider that a potentially dangerous situation could develop, particularly in the context of the appellant’s attitude towards compliance with the law, which would include the safekeeping of a shotgun within the home. 

[22]      I have therefore concluded having regard to all of the evidence that I am not satisfied that the appellant can be permitted to possess a shotgun without danger to the public safety or to the peace. 

[23]      The appellant still can, of course, pursue his sport under the supervision of certificate holder. 

[24]      As regards expenses, those, except insofar as already dealt with, should follow success.  The expenses already dealt with include an award in favour of the appellant in relation to the discharge of the hearing on 26 April 2012. 

[25]      As regards certification of counsel, while recognising that the matter could have been presented by a solicitor, it appeared to me that the application of the law to the facts of the case was not without difficulty.   In those circumstances I have certified the cause as suitable for the employment of junior counsel.  My interlocutor reflects the foregoing.