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Cite as: [2001] NICA 38

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Tennyson, In the Matter of [2001] NICA 38 (31 July 2001)

Judgment: approved by the Court for handing down
(subject to editorial corrections)







IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____


IN THE MATTER OF AN APPLICATION BY
CONOR DAVID TENNYSON FOR JUDICIAL REVIEW

_____

CARSWELL LCJ

1. This is an appeal from a decision of McLaughlin J given on 16 February 2001, whereby he dismissed the appellant’s application for judicial review of a decision by the Secretary of State for Northern Ireland not to grant him a firearm certificate under Article 28 of the Firearms (Northern Ireland) Order 1981 (the 1981 Order) permitting the possession of a shotgun and ammunition. The appellant had applied in the first instance to the Chief Constable of the Royal Ulster Constabulary for a certificate, and when it was refused he appealed to the Secretary of State. The Secretary of State dismissed his appeal and he sought judicial review of the appeal decision on a number of grounds. The judge found none of these grounds established and the appellant now seeks on a number of grounds to appeal against his decision.

2. The grant of firearms certificates is dealt with by the 1981 Order. Article 3 makes it an offence to possess, purchase or acquire a firearm or ammunition without holding a firearm certificate in force at the time. Applications for firearm certificates are to be made under Article 27, and the Chief Constable may grant a firearm certificate subject to the terms set out in Article 28. In the case of residents of the United Kingdom, Article 28(2) provides:

“ (2) In the case of an applicant –

(a) who is resident in the United Kingdom, or

(b) who is resident in a country outside the United Kingdom and has elected, in pursuance of paragraph (4), to have this paragraph apply to him,

a firearm certificate shall not be granted unless the Chief Constable is satisfied that the applicant –

(i) is not prohibited by this Order from possessing a firearm, is not of intemperate habits or unsound mind and is not for any reason unfitted to be entrusted with a firearm; and

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

(iii) can be permitted to have that firearm or ammunition in his possession without danger to the public safety or to the peace.”

3. The Chief Constable may revoke a firearm certificate on grounds specified in Article 30, two of which are set out in Article 30(1)( a) and ( b):

“ 30.-(1) A firearm certificate may be revoked by the Chief Constable if he is satisfied that –

( a) the holder is prohibited by this Order from possessing a firearm, or is a person of intemperate habits or unsound mind, or is otherwise unfitted to be entrusted with firearms; or

( b) the possession of a firearm by the holder is likely to endanger the public safety or the peace;”

4. By Article 28(10) a person aggrieved by the Chief Constable’s refusal of a firearm certificate may appeal to the Secretary of State under Article 55 which provides that on such an appeal –

“the Secretary of State may make such order as he thinks fit having regard to the circumstances.”

5. The appellant, a man of 43 years who lives in the Coalisland area, obtained a firearm certificate in 1975, but this was revoked in 1984 following his conviction for a number of offences, including assault on police, resisting police and driving whilst under the influence of drink, for which he was sentenced to two months’ imprisonment suspended for eighteen months. Both before and since 1984 the appellant had a number of convictions. Taking his total record, those concerned with motoring matters are summarised in the record as 17 road traffic offences, 10 offences against the Construction and Use Regulations, seven against the Lighting Regulations, five against the PSV/HGV Regulations and one against the driving licence regulations. They commenced in 1976, when the appellant was 18 years of age, and continued up to 1999. In addition to the convictions in 1984 to which we have referred he had one for common assault in 1982 and one for obstructing the police in 1996.

6. The appellant made another application to the Chief Constable on 21 January 2000, for a firearm certificate to cover a semi-automatic 12-bore shotgun and 150 rounds of ammunition. He stated in his application form that the gun was for “vermin control and clay pigeon shooting”, to be used on his own land and neighbouring lands. He stated his purpose in fuller and slightly different terms in paragraph 6 of his affidavit grounding the application for judicial review:

“My thirteen year old son keeps ducks and hens on the lands owned by me, partly as a hobby and partly as a source of income. These birds are under constant threat from wild animals. I require a shotgun in order to protect the birds. At the moment I must call upon my brother to come to my lands with his own shotgun from his own home 15 miles away.”

7. The local police gave somewhat cautious and qualified approval to the application. The sergeant in Coalisland who received the application said that with a lapse of fifteen years without a similar type of offence to those committed in 1984 it might be difficult to substantiate a refusal. Chief Inspector Skuse on behalf of the sub-divisional commander recommended the application “subject to his previous revocation not affecting this application.”

8. The application was dealt with in the RUC Firearms Licensing Branch by Inspector Smith, who wrote (over Superintendent Gilbride’s name) to the appellant on 22 March 2000, stating that in view of his convictions he was of opinion that he was not a suitable person to be entrusted with a firearm and was considering not granting him a certificate. He invited him, before a final decision was made, to make any comments or representations which he would like to address to him. The appellant’s solicitor replied on 6 April 2000, stating merely that his client “was of the opinion that his previous convictions did not disentitle him from being a suitable person to hold a firearm certificate.” Inspector Smith gave further consideration to the application, in the light of all the documents available to him, and decided on behalf of the Chief Constable that it should be refused. He so notified the appellant by letter dated 20 April 2000, in which he stated:

“I am satisfied within the meaning of 28(2)(i) that you are unfitted to be in possession of said firearm(s) and ammunition.”

9. The appellant appealed to the Secretary of State against the refusal. In the appeal form completed on 18 May 2000 he set out at some length his reasons for the appeal:

“The Chief Constable was wrong to conclude that I was not, for any reason, namely my previous convictions, unfitted to be entrusted with a firearm and/or ammunition.

In considering my application for a firearm certificate the Chief Constable should not have considered that my previous convictions, as disclosed on my record, were of such a character, in either frequency or type of offence, so as to disentitle me from being considered a person fitted to be in possession of a firearm. It would be asserted in particular that my record fails to disclose any general or persisting predilection towards either violent offending or dishonesty.

In considering my application for a firearms certificate the Chief Constable should have taken into account and placed considerable weight on the fact that the two most significant entries on my record, for assaulting and resisting police, (offences which resulted in the imposition of two concurrent sentences of two months imprisonment suspended for 18 months) are over 15 years old and were never put into operation. The Chief Constable should have had regard to the fact that my conviction for common assault at Portadown Magistrates’ Court occurred some 17 years ago was dealt with by way of a conditional discharge and did not result in a revocation of my existing firearms certificate.

The Chief Constable should also have had particular regard to the fact that all entries on my criminal record that follow the convictions at Portadown Magistrates’ Court on the 28 th of December 1984 are for matters relating to the road traffic legislation (importantly, not offences of dishonesty or violence) save one entry for Obstruction of Police at East Tyrone Magistrates’ Court on the 26 th of September 1996 which was dealt with by way of a monetary penalty.

Further, the Chief Constable should, when considering my application, have recognised that I was never prohibited by reason of my previous convictions from obtaining a firearms certificate pursuant to Art. 22 of the Firearms (NI) Order 1981 (‘the 1981 Order’).

In addition, the Chief Constable should have invested particular significance in the fact that, by the terms of, inter alia Article 22, the 1981 Order specifically contemplates that persons like me whose record discloses suspended sentences of less than three months may be considered suitable candidates for the grant of a firearms certificate.

I personally know of a number of other persons in my locality, who have significantly worse criminal records than mine, whose applications for a firearms certificate have not been refused or whose firearms certificates have not been revoked. It would be my case that some of these persons have actually used firearms to threaten violence. The names of these persons can be supplied on request. In consequence, I would be left with a palpable sense and perception of unfairness, unfair treatment and injustice if my record were to be considered sufficient reason on its own to prevent me from being granted a firearms certificate for what the Chief Constable has accepted are legitimate reasons.”

10. The RUC made a recommendation to the Secretary of State that the appeal should be refused. In the course of the letter of 20 June 2000 containing the recommendation Superintendent Gilbride of Firearms Licensing Branch stated his opinion that the appellant had shown total disregard for the law and was not fit to be in possession of a firearm. A submission was prepared by Ms Norma Downey for consideration by the minister who was to make the decision on appeal on behalf of the Secretary of State. She made her recommendation in paragraphs 9 and 10 of the submission:

“9. Whilst local police are prepared to recommend Mr Tennyson’s application, his criminal record, albeit mainly minor motoring offences, indicates a sustained disregard for the law, which continued right up to last year. This does not suggest that he is someone who will observe the conditions under which a FAC is granted. He gives no impression of regretting his convictions and seems to think that persistent traffic offences just do not count.

10. I agree with FLB’s decision, which was fair and reasonable. I recommend that the appeal be refused on the grounds that the applicant is unfitted to possess a firearm and ammunition.”

11. The minister considered the submission, together with the case file, which he had before him, and accepted the recommendation of refusal. The Northern Ireland Office wrote to the appellant’s solicitor on 25 July 2000, stating:

“After careful consideration of all the circumstances of your client’s case and representations, the Secretary of State has decided that there are no grounds for overturning the Chief Constable’s decision.”

12. The appellant applied on 3 October 2000 for leave to issue an application for judicial review of the refusal of a firearm certificate. In his notice of motion he made both the Chief Constable and the Secretary of State respondents, and his counsel submitted to the judge that because the Secretary of State’s decision letter incorporated a reference to the Chief Constable’s decision he felt that he should challenge both. The judge held, however, that the final decision rested with the Secretary of State and that that decision was the relevant one. We agree with that view and shall focus on that decision, but since it is clear that the Chief Constable’s reasons were before the minister who decided the appeal and he plainly had regard to them, they may have relevance as factors taken into consideration in the final decision.

13. The grounds of the application set out in the amended Order 53 statement were multifarious and not a little diffuse, but they were refined to some extent by those contained in the notice of appeal. As developed in argument before us, the submissions made on behalf of the appellant may be summarised as follows:

  1. The Secretary of State failed to decide the matter afresh and wrongly regarded his function as reviewing the exercise of the Chief Constable’s discretion.
  2. He did not apply correctly the test of fitness to be entrusted with a firearm.
3. (a) He took into account convictions of the appellant which were not
relevant to his fitness to be entrusted with a firearm;
4. The decision was unreasonable in the Wednesbury sense.
5. The decision was in breach of Article 1 of the First Protocol to the European Convention on Human Rights.

14. Mr Valentine submitted on behalf of the appellant that the appeal to the Secretary of State is intended to be a re-hearing, similar to that which the Court of Appeal conducts on an appeal from the High Court (as to which see the discussion in Re Baird [1989] NI 56 at 60-62). The Secretary of State should therefore take the material which was before the Chief Constable and form his own conclusion ab initio , without being influenced by the opinions expressed by police officers either on the original application or expressed later. The Secretary of State had not performed this function correctly, because he had had before him recommendations about disposal of the appeal and had expressed his conclusion in terms which indicated that he was merely reviewing the Chief Constable’s decision to see whether it could stand.

15. In support of this proposition Mr Valentine pointed to the document in which Superintendent Gilbride expressed his views robustly on the appellant’s fitness to hold a firearm and made a positive recommendation that the appeal should be refused. Ms Downey similarly wrote in fairly vigorous terms about the appellant’s approach to his previous convictions in her minute of 10 July 2000 containing advice for the minister. Mr Valentine also relied on the phrase in the letter of 26 July 2000 from the Northern Ireland Office that the Secretary of State had decided that there were “no grounds for overturning the Chief Constable’s decision.” This appears to have been no more than a somewhat infelicitous way of describing the process of consideration of the appeal. In paragraph 9(xii) of his affidavit sworn on 25 November 2000 Mr Ian Sloan, the officer of the Northern Ireland Office in charge of the Firearms and Explosives Branch of the Police division of the Northern Ireland Office, whose duties include the consideration of appeals, stated that the Secretary of State applied to the appeal the same criteria as are applied by the Chief Constable. In paragraph 3 of his affidavit sworn on 5 January 2001 he said that the appeal, as was the case with all appeals, was decided de novo .

16. We do not consider that this submission on behalf of the appellant was well founded. Members of staff advising such persons as ministers who have to make decisions may frequently express themselves robustly and even have quite a significant influence upon the decider’s mind. But so long as the decider does make up his own mind at the conclusion of the process, receiving whatever views or opinions may be offered to him during the process, the decision will be valid: see our decision in Re Belfast Telegraph Newspapers Ltd (2001, unreported) at page 9 of the judgment. We think that the police might with advantage review the advisability in principle of their officers offering advice to the Secretary of State on the determination of appeals from the Chief Constable. Be that as it may, we are satisfied that the minister reaching the decision on behalf of the Secretary of State made up his own mind on the material submitted to him and did not merely review the Chief Constable’s exercise of his discretion. Accordingly his decision is not invalid on this ground.

17. There are three criteria in Article 28(2) of the 1981 Order, on all of which the Chief Constable must be satisfied before he grants a certificate to an resident who is resident in the United Kingdom. The ground on which the certificate was refused to the appellant was that contained in Article 28(2)(i), that he was unfitted to be entrusted with a firearm. The initial point taken by Mr Valentine on behalf of the appellant was that in the letter of 22 March 2000 signed by Superintendent Gilbride the phrase was used “you are not a suitable person to be entrusted with a firearm.” He suggested that this was the application of the wrong test, the correct one being whether the appellant was unfitted to be so entrusted. We do not consider that there is any substance in this point. In the first place, we cannot see any material difference between the phrases. Secondly, the substantive letter of refusal dated 20 April 2000 used the word “unfitted”, and it is clear that this was the criterion adopted by the Chief Constable. It is equally clear from paragraphs 5, 6 and 10 of Ms Downey’s submission to the minister, in all of which the word “unfitted” appears, that that criterion was before the minister as the one which should be applied to the appeal.

18. Mr Valentine then argued that the criteria in Article 28(2) are discrete tests. The Chief Constable and Secretary of State must have been satisfied that the third was fulfilled and the appellant could be permitted to have the firearm and ammunition in his possession without danger to the public safety and peace. The criterion of unfitness to be entrusted with them must, he argued, relate to something other than danger to the public safety and peace. It is apparent from the terms of Mr Sloan’s first affidavit that the ground on which the appellant’s appeal was dismissed was that his criminal record showed a substantial disregard for the law, which led to the suggestion that his behaviour when under the influence of alcohol might be irresponsible. Counsel submitted that this was in effect a conclusion that in such circumstances the appellant might be a danger to the public safety or to the peace. Since on his hypothesis unfitness must relate to something else and the Secretary of State must have been satisfied on the issue of such danger, he accordingly applied an incorrect test in considering the issue of unfitness to be entrusted with a firearm and ammunition.

19. This argument is predicated on the proposition that the three criteria in Article 28(2) are mutually exclusive and that no element of public danger can be taken into account in assessing unfitness under sub-paragraph (i). This proposition is not in our opinion correct. It is quite possible to envisage cases where the applicant for a certificate is unfit for a reason which does not involve danger to the public safety or to the peace. Again, an applicant’s character may be such that he is quite fitted to hold a certificate, but he may live in circumstances in which such danger could ensue from his possession of a firearm. For these reasons it is necessary for all three criteria to be satisfied. It does not follow that they must be exclusive. We do not see any compelling reason why there should not be some overlap between the criteria. It seems to us quite possible for an applicant to be regarded as unfitted for a reason which involves an element of danger to the public safety or to the peace. Accordingly, if the Chief Constable or Secretary of State is considering under Article 28(2)(i) whether an applicant is unfitted to be entrusted with a firearm, it is not to be assumed that it has been ipso facto established that he can be permitted to have it in his possession without danger to the public safety or to the peace.

20. Mr Valentine then relied on an alternative argument, that in determining whether the appellant was unfitted to be entrusted with a firearm and ammunition the Chief Constable and Secretary of State should have taken into account only such criminal conduct on his part as had some connection with the use of a shotgun. He based this proposition on the decision in Spencer-Stewart v Chief Constable of Kent (1989) 89 Cr App R 307, a case involving the revocation of a shotgun licence under section 30(2) of the Firearms Act 1968, a separate category of licence not provided for in the 1981 Order. Section 30(2) provides:

“A shot gun certificate may be revoked by the chief officer of police if he is satisfied that the holder is prohibited by this Act from possessing a shot gun or cannot be permitted to possess a shot gun without danger to the public safety or to the peace.”

21. Mr Spencer-Stewart had a record of convictions between 1970 and 1978 for dishonesty and assault occasioning actual bodily harm. He was granted a shot gun certificate in 1985, but in 1987 was convicted of handling stolen goods. The chief constable revoked the certificate, but his appeal to the Crown Court was allowed. The Divisional Court upheld the decision, following Ackers v Taylor [1974] 1 All ER 771, on the ground that the danger to the peace which must be considered must be a danger to the peace involving the use of a shotgun. Bingham LJ said at page 313:

“If therefore an applicant or holder of a licence is given to the commission of offences which, however serious, do not involve the slightest risk or likelihood of the use of a shotgun, then that, in my judgment, as in that of the learned judge, is not a ground for refusing or revoking a licence.”

22. Later at the same page, however, referring with approval to the Scottish case of Luke v Little 1980 SLT 138, Bingham LJ said:

“It seems to me plain that if there were evidence of a man who was given to gross bouts of drunkenness, there might very well be room for the conclusion that he was not a safe man to be entrusted with a shotgun for fear that, in the course of one of his bouts of drunkenness, the shotgun might be misused for an unlawful purpose. Quite plainly a drunken man with a gun is capable of being very dangerous.”

23. It may be noted that the matter to be proved to ground revocation, which equates to the condition which has to be satisfied before a shot gun certificate can be refused under section 28, is in similar terms to the criterion in Article 28(2)(iii) of the 1981 Order. It was submitted on behalf of the respondents that the test under Article 28(2)(i) of unfitness to be entrusted with a firearm is very different and permits the decider to take into account a wider range of circumstances. That is supported by the decision in Chief Constable of Essex v Cripps (1993, unreported), where a firearm certificate (as distinct from a shotgun certificate) was revoked following the holder’s conviction for offences of dishonesty. The revocation was under section 30(1)( a) of the Firearms Act 1968, which provides:

“ 30.-(1) A firearm certificate may be revoked by the chief officer of police for the area in which the holder resides if –

( a) the chief officer is satisfied that the holder is prohibited by this Act from possessing a firearm to which section 1 of this Act applies or is of intemperate habits or unsound mind, or is otherwise unfitted to be entrusted with such a firearm;”

24. Some confusion had been engendered in considering the revocation by relating it to the wrong test, that in section 30(2) concerning shotguns, and Brooke J said at page 7 of his judgment:

“In my judgment, reference to the line of authority relating to the different concepts of danger to the public safety or to the peace are not directly relevant and, as this case has shown, may be positively unhelpful when applying the test set out in section 30(1)( a)”.

25. He went on to say at the same page:

“ ... the test laid down by Parliament in s 30(1)( a) means what it says. It certainly cannot, quite simply, be restricted to a risk that the firearm would be used in a manner dangerous to the public. There may be all sorts of factual situations which lead the Chief Constable to be satisfied that the holder is unfit to be entrusted with a firearm, and Parliament did not seek to fetter his discretion by limiting the matters which he was to take into account in addition to those set out in s 30(2).”

26. We fully agree with this statement and consider that it lays down the correct approach for the Chief Constable or the Secretary of State in deciding whether to grant a firearm certificate under the 1981 Order. We would also refer to the remarks of Stuart-Smith LJ in Chief Constable of Essex v Germain (1991) 156 JP 109. The case concerned the revocation under section 30(2) of a shotgun certificate, but the statement is relevant a fortiori to the grant of a firearm certificate:

“But in my judgment in a proper case it is perfectly permissible to take account of the kind of irresponsible and uncontrolled behaviour which may be revealed in a succession of cases of drink driving, such that the chief constable is entitled to draw the inference that the appellant is the sort of person who cannot be trusted with a shotgun, who may be a danger to the public and to the peace because he lacks proper self-control and proper self-discipline.”

27. The consideration put forward by Ms Downey in paragraph 9 of her submission to the minister, which we quoted earlier, was that the appellant’s record indicated a sustained disregard for the law, which did not suggest that he was someone who would observe the conditions under which a firearm certificate is granted. As appears from paragraph 9(i) of Mr Sloan’s first affidavit, this element of proven irresponsibility on the appellant’s part was the major determining factor in the decision to dismiss his appeal against refusal of the certificate. We therefore agree with the judge when he stated in his judgment:

“Given the blatant disregard of simple rules and regulations in other aspects of life as demonstrated by the applicant’s criminal record, I see no reason for saying that a Minister should not take into account such matters when deciding whether or not a person is likely to comply with the basic safety rules and regulations in respect of a firearm as the danger to others if these simple rules are ignored is self evident. I do not consider that the Minister has misinterpreted the provisions of the Firearms Order and reject these submissions as untenable.”

28. The appellant’s skeleton argument made a number of other points, which were not pursued with any enthusiasm by Mr Valentine at the hearing before us:

(a) It was suggested that spent convictions were wrongly taken into account. It is specifically provided, however, by Article 2( a)(iv) of the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 and paragraph 1 of Schedule 2 to that Order that none of the provisions of Article 5(2) of the Rehabilitation of Offenders (Northern Ireland) Order 1978 is to apply in relation to any question asked in order to assess the suitability of a person to hold, inter alia, a firearm certificate. It must in our opinion follow that the decider on suitability is entitled to have regard to that person’s spent convictions in reaching a decision on the grant of a firearm certificate.
(b) It was submitted that the Secretary of State should have followed the example of the Chief Constable and offered the appellant an opportunity of making representations to him. We do not consider that any such requirement existed. The printed appeal form 30/14 contained space for the appellant to set out his reasons for the appeal, which he did in great detail. In our view he had ample opportunity to state his case and took full advantage of it.
(c) It was also suggested that reasons should have been given by the Secretary of State for dismissing the appeal. We are far from saying that it is necessary as a matter of law for the Secretary of State in such a case to furnish reasons for his decision, particularly where the issues on which he had to decide were so fully spelt out in the notice of appeal and it was quite obvious why it was dismissed. If, however, there was any obligation to provide reasons, that has now been done in detail in the course of these proceedings.

29. The submission that the Secretary of State’s decision was unreasonable in the Wednesbury sense of irrational is in our view without foundation. The threshold for setting aside a decision on this ground is very high, and the grounds on which the Secretary acted to dismiss the appeal were in our judgment perfectly tenable. It is not the function of a court sitting on an application for judicial review to agree or disagree with the wisdom of any decision or to express any view on any such issue, and we do not wish to be taken to do so. It is sufficient to say that it is abundantly clear that the Secretary of State had sufficient grounds upon which he could properly reach the conclusion at which he arrived.

30. The final point taken on behalf of the appellant was that by refusing to allow him to have a firearm certificate the Secretary of State deprived him of the means to exercise his right to protect the property of himself and his son. It was submitted that this constituted a breach of Article 1 of the First Protocol to the European Convention on Human Rights, by which it was meant that there was a breach of the requirement of the first sentence of Article 1:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.”

31. It is necessary, however, to bear in mind the succeeding part of Article 1:


“The preceding provisions shall not, however, in any way impair the right of a State to enforce such law as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or pensions.”

32. The respondents can obviously advance a strong argument that the latter portion of Article 1 provides justification for refusing to grant a firearm certificate to the appellant: see the discussion in Wadham & Mountfield, Blackstone’s Guide to the Human Rights Act 1998, section 9.18. It is not necessary for us to pursue this question, however, because the Secretary of State’s decision was issued before the Human Rights Act 1998 came into operation on 2 October 2000. For the reasons which we set out in Re Adams’ Application (2001, unreported) at pages 31-2 of our judgment – which it is unnecessary to repeat here – we do not consider that the Secretary of State’s decision is open to attack on any grounds based on the Convention.

33. For the reasons which we have given we are of opinion that the appellant has not made out any of the grounds on which he appealed against the judge’s decision and we dismiss the appeal.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____


IN THE MATTER OF AN APPLICATION BY
CONOR DAVID TENNYSON FOR JUDICIAL REVIEW

_____





JUDGMENT



OF



CARSWELL LCJ





_____

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URL: http://www.bailii.org/nie/cases/NICA/2001/38.html