By Gareth Martin, 6th July 2023
On 29 June 2023, the Government launched a consultation on firearms licensing. The consultation which will run for eight weeks, has already been described by the British Association for Shooting and Conservation (BASC) as “the most significant and important firearms licensing consultation in 35 years”.
The consultation comes on the back of recommendations made to the Home Office in three reports including, the Prevention of Future Deaths report issued by the Senior Coroner for Plymouth, Torbay and South Devon, having heard evidence in the inquest into the deaths of those shot and killed by Jake Davison in Keyham in August 2021. The consultation also considers the recommendations in the report by the Independent Office for Police Conduct (IOPC) in relation to the decision –making of Devon and Cornwall Police, they being the force responsible for not only issuing Davison with a shotgun certificate but also removing it and subsequently returning it just over a month before the fatal shooting of five people, including his mother. The final report and recommendations which give rise to the consultation comes from the Scottish Affairs Select Committee and its review of firearms licensing regulations in Scotland following a fatal shooting on the Isle of Skye in August 2022.
The Government has stressed that no decisions have been taken in relation to the recommendations and it will carefully consider all views received as part of the consultation process, therefore all those with an interest in firearms licensing in England, Wales and Scotland are encouraged to respond before the deadline on 23 August 2023.
Whilst public safety is unsurprisingly the Government’s priority, there is a welcome recognition that any measures implemented to manage the risk to public safety must be proportionate, taking account of the fact that the majority of licensed firearms holders are law abiding and cause no concern.
With this in mind, the Government has decided not to proceed with recommendations which would have seen an alignment of shotgun and firearms legislation. In a move welcomed by the shooting community, the Government acknowledges that shotguns are integral to pest control, particularly in farming, and used by many in rural pursuits, all of which is already subject to appropriate control and regulation, therefore there is no current necessity or justification for alignment and further intervention.
The consultation invites responses to 20 questions and whilst everyone will quite rightly have their own views based on their own circumstances and experiences, we have considered each of the questions and set out some initial thoughts which we hope you will find helpful and thought-provoking.
Q1. Do you consider that the police should be granted a specific power of entry (without a warrant issued by a magistrate or sheriff) to be able to seize shotguns, firearms and ammunition where there is a risk to public safety or the peace and the certificate holder does not cooperate with the police and agree to voluntary surrender. (In association with this proposal, the police should be given the power to suspend a certificate temporarily).
The police already have the power to seize firearms, shotguns and ammunition where there is an immediate threat to life but this recommendation is aimed at addressing a concern raised by the coroner in the Plymouth shooting case. They highlighted the fact that in some cases there may well be justification to review an individual’s suitability to hold a firearm certificate but without an immediate threat to life, police have no statutory power to enter premises and seize items. In such circumstances, police are currently reliant on co-operation and voluntary surrender by the holder or they must seek a warrant from the Magistrates/Sheriffs’ Court.
Whilst an additional specific power would likely address the issue raised by the coroner, extending the scope of police powers, particularly around entering premises without a warrant and seizing often very valuable items, is something which ought to be considered very carefully with appropriate safeguards put in place to ensure that such powers are not misused or worse still abused by inexperienced or overzealous officers.
A power to suspend a certificate temporarily is an interesting proposal and if entered into with openness, transparency and co-operation may result in fewer appeals in the Crown Court. It is, however, something which would require specific guidance, particularly around timescales because what is considered temporary may extend for considerably longer in one force area than another and all of a sudden a temporary suspension may in reality be akin to revocation.
Q2. Do you consider that the prohibition on possessing firearms should be changed from one that is based solely on length of a custodial sentence following conviction, to one based more on the nature of the offence? This would ensure that the prohibition becomes more clearly related to risk rather than, more arbitrarily, to length of sentence.
This would seem like quite a sensible recommendation, indeed all applications whether first time or renewal should be considered on its own merits and for those with relevant previous convictions, the decision maker ought to know as much information as possible as opposed to simply looking at the sentence imposed which could vary from one person to the next for any number of reasons despite being what on the face of it is the same offence.
Q3. Do you consider that the renewal period (currently every five years) for a certificate should be kept under review? If so, is renewal every five years the right period of time or should it be changed to a shorter or longer period of time?
This is a point which has divided opinion for a long time with some calling for shorter periods between renewal on the grounds of public safety whilst others, particularly those in the shooting community having argued for longer periods of up to ten years, citing the success of markers on medical records, for example, which have been effective in highlighting relevant medical issues to licensing teams.
Any decision to increase or decrease the period of time between renewals ought to be based on some form of evidence or at the very least consensus between the parties which is another reason why those impacted by the proposals contained in the Government consultation should make their voices heard.
Q4. Do you consider that people applying for shotgun certificates should provide two referees?
In terms of reasonableness and proportionality it is unlikely to be a considerable hassle for someone seeking a shotgun certificate to identify two referees as opposed to one. However, it may be argued that changing the requirement now is a step towards alignment which the Government has thus far resisted.
Q5. Do you consider that at least one of the referees should be a person of certain standing in the community (e.g of a professional background)? This could include public officials (both elected and Civil Servants or Local Government officers), members of a regulated profession (including doctors, nurses, solicitors, barristers, accountants and FCA regulated finance professionals), officers of registered shooting clubs, National Farmers’ Union representatives, landlords, land managers, vets or surveyors.
Whilst this approach is one that no doubt many will be familiar with when it comes to passport applications and the like, it presents its own challenges and risks because not everyone will have such contacts and moreover the extent of the relationship or personal knowledge between the applicant and the referee may not be the same as with someone who they have known for many years but who hasn’t been put forward because of their lack of professional qualifications or standing in the community.
Q6. Do you consider that referees should be able to demonstrate a good knowledge of the applicant’s circumstances, relevant to their suitability to possess a firearm or shotgun?
It is perhaps arguable that such knowledge is more important than the referee’s own professional background or standing in the community although someone who combines it all will inevitably provide greater reassurance for the decision maker.
Q7. Do you consider that the application form should include a checklist for referees on the information that they should provide to the police, and require referees to provide a written declaration that they have disclosed all relevant facts to the police?
A checklist would perhaps provide a more consistent approach to the licensing regime across the country which ought to be welcomed. The inclusion of a written declaration, however may put some people off providing references if they are made to feel as though they are taking some form of responsibility for the decision that will follow even though it is ultimately down to the police licensing department once they have considered all of the information available to them, not just the reference.
Q8. Do you consider that the Statutory Guidance should include more detailed guidance for the police on the information they should be looking to elicit from referees?
Without doubt more detailed guidance for the police along with improved training for firearms licensing department staff ought to be welcomed in order to ensure a more consistent approach, something which has been missing for a very long time.
Q9. Do you consider that the police should look at the circumstances when individuals change referees between application and renewal, and between subsequent renewals?
There may well be perfectly legitimate reasons as to why someone would change referees. As has been cited previously, each case ought to be judged on its own merits and it is therefore arguable that if an officer has concerns as a result of a change of referee then they ought to be making appropriate enquiries whether mandated by policy or not.
Q10. Do you consider that the sharing of the unique application reference number by the applicant with their referees, would make it easier for referees:
(i) to report concerns they have about applicants to the police;
(ii) to decline to give references; or
(iii) for those who give references but subsequently become concerned that
the applicant may no longer be suitable to have access to a firearm or shotgun, to report this later to the police?
This would appear to be a question as much for referees as for applicants but the most important thing must surely be to have a referee who can be trusted to not only provide accurate information but also feel comfortable enough to do so, including flagging any genuine concerns they may have before, during or after the application process.
Q11. Do you consider that the content in the Statutory Guidance should be expanded and made more prescriptive in relation to the suitability checks carried out by the police for firearm and shotgun applicants and certificate holders?
The current laws around licensing do provide detailed and useful guidance for both applicants and the police. The problems, however, would seem to relate to implementation and in particular consistency in the approach taken from force to force. This may be remedied in part by the Government’s commitment to invest upwards of £500,000 in police training in this area but it is no doubt sensible to keep the Statutory Guidance under review and the Government and indeed the police must listen to key stakeholders such as shooting associations when it comes to shaping a more effective regime.
Q12. Do you consider that the balance of probabilities test is the correct test to apply in the Statutory Guidance to information about a person’s suitability to hold a certificate? This is the test that the police have been using for many years and is applied in weighing the evidence and information in any individual case.
Whilst some people, likely those who are fundamentally opposed to shooting whether for recreation, farming or wildlife management purposes, may feel that a higher standard of beyond reasonable doubt should be used in cases involving firearms, there appears to be little or no evidence to support the need for a change at this stage. If the time comes when such evidence is available, then no doubt the Government will need to give due consideration to it but it would seem unnecessary and unreasonable to do so now and would likely actually put even more pressure on the licensing teams.
Q13. Do you consider that neurodevelopmental disorders should be added to the list of relevant medical conditions in the Statutory Guidance (and application form)?
If a medical condition is likely to impact upon someone’s suitability to safely hold a firearms certificate, it is difficult to see how one could argue against such being included in the list of relevant medical conditions. That being said, it should remain open to applicants to provide their own medical evidence detailing their own personal experience of such conditions.
Q14. Do you consider that GPs’ engagement with the firearms licensing process should be made mandatory?
There are no doubt arguments for and against mandatory engagement. Whilst on the one hand it may promote a more timely and consistent approach/outcomes, it may also lead to increased bureaucracy and potential friction between GP surgeries, the police and applicants. Without doubt GPs and their representative bodies ought to be consulted before any such recommendation is implemented taking account of the likely costs and resources needed for the same.
Q15. Do you consider that interim medical checks should be made on licensed firearms holders between the grant of the certificate and any application to renew?
Checking on someone’s medical records is not something which should ever be done on a whim. It may be that the continued effectiveness of the marker system and GP co-operation is sufficient to ensure that any issues are flagged to the licensing department as opposed to them proactively searching for it as a matter of course at specific intervals without any basis for doing so.
Q16. Do you consider that the digital marker for use by GPs on the medical records of licensed firearms holders should be visible to other health professionals?
By their very nature medical records are highly sensitive and the information therein should only be shared with those who need to see it. Careful consideration would need to be given as to how far the visibility permissions extend, for example it may be appropriate for a hepatologist to see the marker as they might be treating someone for issues associated with alcohol misuse which is potentially relevant to their suitability to hold a firearm but on the flip side what need would there be for an orthopaedic doctor or dietician to see the marker?
Q17. Do you consider there should be more mental health advice and support for licensed firearms holders through, for example, advice leaflets and other such support?
It is widely acknowledged that mental health issues are prevalent at all levels of society. It would, therefore seem appropriate to ensure that people including licensed firearms holders are given relevant advice and support so that they do not feel marginalised and know where to turn to in times of crisis. The biggest barrier to getting buy in from applicants in this regard may well be the fear that accessing such information or support could lead to revocation on health grounds. It will be interesting to see the responses to the consultation on this point and how the Government address it.
Q18. Do you consider a specific phone line should be introduced in addition to the services already available to report concerns about a licensed firearms holder?
Again whilst it will be interesting to see the responses to this question as part of the consultation process, the main things that come to mind would be the cost and therefore the proportionality of introducing such a system. Is it really needed in addition to the services already available?
Q19. How in principle should any specific phone line be funded: public funding or other source of funding?
It would inevitably be a most unpopular decision if the wider public were expected to foot the bill for a phone line likely to be used by only a very small % of the population and even within the shooting fraternity, it may well be only a small % who use it so they too may be offended at the prospect of having to shoulder the costs.
Q20. Do you consider that it would be better to raise awareness of existing avenues open to raise concerns about a licensed firearms holder (999, 101, Crimestoppers, force firearms licensing contacts) than create a new phone line service?
As the Government have made clear public safety must be maintained and the measures put in place to do so must be proportionate. The avenues for reporting concerns about a licensed firearms holder are clearly already in place, therefore a relatively simple awareness campaign is much more likely to meet with the approval of the public and certificate holders alike.
In our experience, the approach taken by Firearms Licensing Departments up and down the country is inconsistent and at times incomprehensible. In recent years, those who enjoy rural pursuits and those involved in pest control and wildlife management have become an increasingly “easy target” for inexperienced, poorly resourced and at times over-zealous licensing departments.
In order to ensure that the licensing regime across the country is consistent, efficient and workable for not just the police but those in the shooting community, it is important that those with an interest in shooting respond to this consultation.
It is only through engagement and voicing your concerns that changes will be considered and implemented. To do nothing risks the Government seeing a lack of interest and passion about the subject and such apathy is unlikely to result in the increased investment, resources and training which is so badly needed.
Our experts have represented many businesses and individuals in both criminal and licensing matters, including members of the British Association of Shooting and Conservation (BASC) and the United Kingdom Practical Shooting Association (UKPSA). If you are subject to a refusal or revocation of your firearms or shotgun certificate, get in touch with the team at Olliers.