Gareth Martin, a partner in our regulatory department, acted for a Registered Firearms Dealer (RFD) in a successful application to stay criminal proceedings which could have seen his client imprisoned for at least 5 years.
Gareth was originally instructed by the RFD to provide advice and assistance in relation to an investigation into allegations that they had both manufactured and sold prohibited firearms contrary to the Firearms Act 1968.
Gareth attended an interview under caution with his client and provided appropriate advice and assistance. Later that same day the investigating officer emailed Gareth to say that having discussed the matter with their Sergeant, the police investigation would not go any further, rather learning points could be taken with regards to better communication between the RFD and the firearms licensing department.
Almost two weeks later, the same officer emailed again to say that the firearms licensing team were unhappy with the decision not to prosecute, therefore, the matter needed to be referred to the Crown Prosecution Service (CPS) for review.
Gareth contacted the police on a number of occasions over the following months to try to establish what, if any further action, his client would face. He was told that the matter had been sent to the CPS as previously advised and approximately five months later Gareth was eventually explicitly told, “This matter has finally been written off as No further action”.
Gareth told his client that they were not to be prosecuted. It is worth remembering that this was now the second time that he was told that they would not be prosecuted and it is perhaps interesting to note that the standard caveat that someone may be prosecuted if further evidence were to come to light was never once mentioned; both Gareth and his client believed this to be an end to the matter.
Case resulting in prosecution
Some two years after his arrest and having being told that he was not to be prosecuted on two separate occasions, Gareth’s client received a postal requisition. The offences were such that if convicted, the client faced the prospect of a mandatory minimum term of imprisonment of five years. With a business and family including young children, the client was understandably distraught, especially as they had moved on, believing the case was well and truly closed.
Abuse of process
Gareth was retained by the client and instructed leading counsel, Peter Glenser KC, who is recognised as an expert in firearms matters. The pair immediately identified that the case was one in which an application to stay the proceedings as an abuse of process was necessary and appropriate.
An initial application was dismissed and although the Judge at the Crown Court invited the prosecution to consider whether or not the case was actually in the public interest, the CPS persisted.
Whilst it was anticipated that the matter would proceed to trial, Gareth noted that the RFD had actually expanded their business at some point and having investigated this further with the client and their accountant, it became clear that the expansion took place after and indeed was wholly reliant upon the apparent decision not to prosecute.
Renewed application abuse of process
Mr Martin and Mr Glenser KC renewed the application to stay the proceedings, this time based on the detriment the RFD had gone to in reliance upon the promise that he would not be prosecuted. The law is well settled, and was restated in Abu Hamza (2006) EWCA Crim 298: where a defendant has been induced to believe that he will not be prosecuted, that is capable of founding a stay for abuse; however, it is unlikely to do so unless (i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of the case that the defendant will not be prosecuted, and (ii) the defendant has acted on that representation to his detriment.
The prosecution resisted the application.
Having heard the renewed application, the Judge stated in his ruling that it was “not possible to imagine a clearer promise, twice made, that the danger of prosecution for [the defendant] was at an end.”
The Judge accepted the documentary evidence, together with witness statements collated by Gareth, which established that the defendant had acted to his detriment by purchasing an adjoining unit to expand his business, none of which the CPS took issue with.
The Judge acknowledged and accepted that the defendant would never have made such a purchase had he thought that there was a continuing risk of prosecution, imprisonment, and the inevitable loss of his Firearms Dealers’ Certificate and his business.
The prosecution had referred to a number of authorities in which the detriment suffered was related to the proceedings themselves. Their counsel argued that the detriment should be restricted to something closely related to the proceedings, and did not extend to financial detriment. The Judge rejected that argument noting that the authorities referred to were simply examples of how, on their particular facts, a detriment had been identified. They did not seek to limit or define the circumstances in which a detriment may be established. The Judge stated that, “Detriment is an ordinary English word, and there is no justification, in law or common sense, in excluding from its ambit an economic loss.”
Successful result – stay in proceedings
The Judge concluded that the unequivocal promise made to the defendant, and his expenditure in the light of that, meant a prosecution would be unconscionable. He stated that this was a wholly exceptional, but clear case for the grant of a stay and that was the order he made.
The prosecution immediately asked for an adjournment to consider whether they ought to appeal the ruling. They were granted the adjournment and after some days decided that they would not appeal, therefore the case was closed, much to the relief of Gareth’s client and their family.
Whilst this case is truly exceptional given the circumstances, it is not exceptional when it comes to the inconsistent and at times incomprehensible approach taken by Firearms Licensing Departments throughout England and Wales. As we have expressed many times before, RFDs and those with personal firearms and shotgun certificates are becoming an increasingly “easy target” for inexperienced, poorly resourced and at times over-zealous licensing departments.
How can Olliers assist?
It is, therefore, essential that if you are subject to refusal, revocation or even worse, criminal investigation, you get legal advice and assistance from those who understand the wider issues faced by the shooting fraternity, therefore please do get in touch with the experts at Olliers.
Click here for Firearms Licensing Appeals Overview.