A fortnight ago I posted a blog about the case of soldier Sgt Nightingale, who was sentenced to 18 months military detention for illegal possession of a pistol which he had presented to him as a war trophy by Afghan soldiers while he was serving in Afghanistan.
Last Thursday his appeal against this sentence was heard by the Court of Appeal. I was delighted to learn that the appeal was successful; Sgt Nightingale was given a suspended sentence instead and so was released immediately.
I would be bound to agree that this is a fair and proportionate result since a suspended sentence is precisely what I observed was the appropriate penalty in my previous blog. Perhaps what is more interesting is just how widely this outcome was welcomed by the media and the general public.
Sgt Nightingale is fortunate that his family had the wherewithal to generate and drive a campaign of public support for his cause. There are however many others who have fallen prey to Britain’s harsh firearms laws, often with no malicious act or intent, and quite inadvertently, yet whose cases have gone largely unnoticed by the media or general public.
Whilst the furore of media attention over Sgt Nightingale’s case won’t help those who have gone before him, hopefully it might have served to highlight the dangers of adopting such a simplistic and draconian approach as successive UK governments have chosen to do with the law on firearms.
There is indeed something deeply and inherently unjust about combining mandatory minimum sentences with strict liability offences that require no criminal intent, or even knowledge that the act or omission is an offence. In my view, the court that has heard all the facts of the particular case should surely have complete discretion to determine the appropriate sentence in all the circumstances.
In the current economic climate, where many other things have far greater political priority, a root and branch review of the country’s firearms laws is almost certainly too much to hope for. But perhaps, there is room for a little optimism that this cause célèbre might at least lead to a gear shift in approach on the part of those involved in the administration of justice, and particularly the prosecuting authorities, who can be somewhat overzealous when it comes to any offence concerning firearms.
The tendency has been to adopt a very hard line, zero tolerance policy in all such cases, quite possibly on the assumption this would be universally supported by those in Government, the media and the general public. The case of Sgt Nightingale has demonstrated that the application of some discretion and sense of proportion in dealing with firearms offences, much as in other areas of criminal law, would in fact be widely welcomed.
News that French prosecutors have begun a criminal Libor inquiry begs the question about progress on the UK criminal inquiry announced in July 2012 by the SFO.
Much has been made of the flurry of financial settlements that banks have made with US prosecutors e.g. Barclays’ fine of £290 million and it is rumoured that RBS could face a fine of up to £300 million. It appears that Barclays may have received a discounted penalty because they were the first to come forward, and that there are other banks lining up negotiations with prosecutors both sides of the Atlantic.
So far it looks lucrative for prosecutors, but this approach flies in the face of public opinion. A recent YouGov survey in early October concluded that 90% of respondents believe that bankers found guilty of market abuse should be sent to prison. These results echo the views of Martin Wheatley of the FSA, who has been quoted as saying that anyone who deliberately manipulates markets for their own profit could face up to seven years imprisonment and/or a £multimillion fine.
The simple truth is that these allegations will be impossible to successfully prosecute to the criminal standard of proof.
The roles of the Treasury and the BOE remain unclear in the Libor scandal; were the banks doing as they were told to do?
It is unlikely that any meaningful evidence will be found against those in senior positions at the banks, because of management structure and lines of communication.
The prosecutors may find some damming emails implicating traders, who are very much at the bottom of the pile, but prosecuting them alone will not resolve this situation fairly or reflect what the prosecutors and general public feel has occurred.
In September last year, the Treasury and the FSA had asked the then Director of SFO to begin a full investigation into the Libor scandal. He refused, explaining (correctly) that his budget had been severely reduced as a result of Treasury cuts and because of the current work load at the SFO.
It seems that the SFO have been allowed a sum to fund this inquiry but, let’s be honest, a quick cursory analysis of current criminal statutes and common law offences leads to the conclusion that it will be well-nigh impossible to successfully prosecute these offences. There could be nothing more devastating for the SFO to begin another high profile prosecution only for it to fall at the first hurdle.
Many readers will no doubt be aware of their local licensing department making redundancies and/or merging with the licensing department of the adjoining force. An inevitable consequence of these cutbacks in staffing levels is that long delays in processing shotgun and firearm certificate applications – and also renewals – are fast becoming the norm. I have heard accounts from members that police in some parts of the country are advising certificate holders that their usual timescale for processing even routine renewals is now six months.
What is all the more troubling is that some licensing departments seem to be taking an overly relaxed approach and assuring shooters they need not worry if they do not receive their new certificate before their current one expires; they can continue to store their guns at home and even continue to go shooting. Interestingly, requests for confirmation in writing of such advice have generally been met with a certain reluctance.
In any event, I could not recommend that you follow such advice. In strict legal terms, from the day you cease to have a valid shotgun certificate you will then be in unlawful possession of your guns – which amounts to a criminal offence. Any verbal assurances you may have been given by your Firearms Enquiry Officer (FEO) that they would not seek to prosecute you in those circumstances may be cold comfort if you find yourself languishing in the cells of a police station, having been stopped and had your vehicle searched by a police constable on your way to a shoot. That officer may be unable to verify what you say immediately with your local licensing department or even that you submitted your renewal application some time ago. The chances of your protests falling on deaf ears are all the greater if you happen to be stopped outside the county or licensing area in which you live. You simply cannot count on the police or their lawyers to exercise their discretion sensibly not to prosecute you and, even if they do, you will probably have spent several hours at least in police custody before the issue is resolved and you are released.
A further practical difficulty with continuing to shoot after your certificate has expired is that, while you can legitimately possess shotgun cartridges without being the holder of a shotgun certificate, you will need to produce a valid certificate to purchase any more. So, even if you do decide you can safely rely on the assurances of your FEO, it is likely that a point will come when you will run out of ammunition.
So what can be done to avoid getting yourself into such potentially risky situations and ensure you can carry on shooting without interruption? First, make a diary entry six months before the expiry of your current certificate to contact your FEO. Find out from them what current local timescales for processing of applications are and also ask other certificate holders you know in the same area of their recent experiences. Be guided by what you find out and put your application in suitably early. Your FEO should thank you for your forward planning and so reciprocate by doing their best to process your renewal before your current certificate expires. Send your renewal application by recorded delivery so you have firm proof as to when it was submitted. If you are going to hand-deliver the paperwork to the licensing department or local police station, make sure you get a receipt from whomever you hand it to.
Once you have lodged your application, do not simply leave it and hope for the best. I’m not suggesting you make a nuisance of yourself, but it is worth following up your application periodically (once a month, say) to check on progress and whether there is any further information the police require from you. It is preferable to do this by email or letter rather than by telephone, so that you have a record of all further contact with your licensing department.
If there is still no sign of your new certificate two to three weeks before the expiry of your current one, send a letter or email to the head of your licensing department pointing out how long ago you submitted your renewal forms and asking them to issue you with a temporary Section 7 permit if they really can’t process your renewal before the due date. A Section 7 permit will not authorise you to acquire shotguns or ammunition, but you can lawfully continue to possess those you already have. You may therefore want to consider stocking up on ammunition while you still have a valid certificate enabling you to purchase it (obviously ensuring you do not exceed the quantities authorised on your certificate).
The police may decide it is just as easy to process your renewal and issue you with a new certificate rather than a temporary permit. But, in case you still have neither by a few days before your certificate expiry date, ensure you have arrangements in place to either put your guns into storage with a dealer or, ideally, to transfer them to a friend who has sufficient space for your guns in their cabinet. You should obviously notify your FEO of any temporary transfer and, in the case of a friend, enter your guns on their certificate. If you are going shooting on private land with a friend who has been granted shooting rights over it by the owner of the land or you are attending an organised clay shoot where the organisers have been granted a Section 11(6) exemption by their licensing department, you can legitimately shoot without holding a certificate. Check with the shoot organisers if you are in any doubt as to whether they have the relevant exemption.
In an ideal world such long delays ought to be treated as unacceptable, but these are not ideal times. In the current economic climate, the government is bound to look for savings wherever it can find them. Perhaps it is better to recognise that and adapt accordingly, rather than being hopelessly optimistic.
For readers who have been following my series of articles on the issue of extending the members’ insurance to cover legal costs in the event of certificate revocation, research by the CPSA is ongoing and I hope to be able to return to this topic early in the New Year.
The Home Office is now working in earnest on producing the long awaited new edition of the Guidance. Drafts of the chapters that have so far been updated and revised have been circulated to shooting organisations for consultation and comment.
Our head of firearms law, Laura Saunsbury, along with her co-author in the British Firearms Handbook, barrister Nick Doherty, has submitted various proposals for improvement and clarification of the chapters relating to the procedure for handling firearm and shotgun certificate applications.
We frequently end up advising in appeals where inadequate or ambiguous medical information is what lies behind the Police’s decision to revoke or refuse to grant or renew a certificate. In many instances, the case is subsequently settled by agreement once the applicant’s medical history is clarified. If the volume of such revocations and refusals could be significantly reduced, this would reduce the number of appeals and so result in considerable cost savings, both for the Police and individual certificate holders.
Laura’s submission to the Home Office therefore includes proposals for significant changes to the sections of the Guidance relating to Police requests for medical evidence from applicants’ doctors. Placing a requirement on the Police to give doctors greater guidance when requesting medical reports as to the level of detail and relevant information required from the applicant’s medical history, should in turn lead to more comprehensive medical reports. In many cases, this could satisfy Police concerns about the applicant rather than leaving those concerns unresolved and so leading the Police to refuse to grant or renew a firearm or shotgun certificate for that individual.
Perhaps the most controversial amongst Laura’s proposals to the Home Office is a shift in the burden as to who should pay for medical reports required by the Police for processing firearm and shotgun certificate applications and renewals. The current edition of the Guidance makes the Police responsible for paying doctors’ fees, although under an agreement reached some years ago between the Police and the British Medical Association, doctors often do not get paid anything for supplying the Police with reports in these circumstances.
If the GP were free to negotiate a fee with his patient, i.e. the applicant, the GP might then be far more inclined to provide a more detailed report to the Police. Requiring the applicant to pay GP fees should also ensure there is greater consultation between the GP and the applicant before information is provided, and therefore that the Police receive a complete and up to date assessment of the applicant’s health.
Work by the Home Office on updating the Firearms Guidance to Police is ongoing and it is expected that the new edition will be published during 2013.
If the Police have refused to renew or grant you a firearm or shotgun certificate on medical grounds, contact Laura Saunsbury for advice about prospects of appeal.
The occasions on which the use of a firearm or shotgun in self-defence can be justified as necessary and reasonable must be extremely rare. However, it would be difficult to find a clearer example than the unfortunate Mr and Mrs Ferrie who were both arrested earlier this week after Mr Ferrie used a licensed shotgun to frighten away four intruders who had broken into their home in the dead of night.
Quite apart from the fact they were outnumbered by the burglars, the latest reports that have emerged indicate that at least one of the intruders was masked. Having been roused from their sleep by the sound of breaking glass, the couple awoke to be faced by one or more of the gang in their bedroom. Furthermore, they had been the victims of several burglaries in the past. This and the prospect of what was yet to come must all have been operating on Mr Ferrie’s mind at the point when he decided to fire the shotgun. Had he retaliated with anything less than a gun, it is highly questionable whether the burglars would have left them unharmed or exited the property so soon.
In the circumstances, it is difficult to imagine why it took so long for a senior lawyer at the Crown Prosecution Service to reach the decision that their actions amounted to no more than lawful and reasonable self-defence, and that consequently neither of them should be prosecuted. The couple spent almost three whole days in police custody before being released on police bail. No doubt, they must have been greatly relieved when their ordeal ended some 24 hours later and they were informed a decision had been reached to take no further action.
But is it really over yet for Mr and Mrs Ferrie? The fact remains they suffered the ignominy of being arrested on suspicion of causing grievous bodily harm, a serious criminal offence, and were deprived of their liberty for 3 days. The couple would have been detained separately from each other at a time when the very thing each of them craved was almost certainly the comforting presence of their spouse. This must have added significantly to the trauma of the burglary and will no doubt stay with them for a very long time to come.
The further aspect of this case, which probably won’t have occurred to the wider public, is that Mr and Mrs Ferrie may now face scrutiny from their police firearms department as to whether the shotgun certificates held by them should be revoked. It is to be hoped that the licensing department will take a sensible view in the circumstances of this case. But as our firearms law specialist Laura Saunsbury knows only too well from her experience in advising on firearms licensing appeals, the mere fact that an individual has been cleared of a criminal offence they were suspected of committing does not by any means guarantee their firearm or shotgun certificate is safe. If there is any indication their certificates may be in jeopardy, Mr and Mrs Ferrie would be well advised to avail themselves of specialist representation.