Firearms appeals: the sheriff’s role redefined

Four years ago, I wrote an article (JLSS, June 1997) discussing the Sheriff’s role under the Firearms Act 1968, and drew attention to the then forthcoming revised provisions in the Firearms (Amendment) Act 1997, made following on Lord Cullen’s Inquiry into the Dunblane tragedy. This update reviews developments since the new appeal procedures came into force, and discusses how the 1997 Act has fundamentally altered the approach to be adopted by a Sheriff in dealing with a firearms appeal.

New Statutory Framework

Section 41 of the Firearms (Amendment) Act 1997 (c.5) substituted a new Section 44 into the Firearms Act 1968, as well as amending Schedule 5 to the 1968 Act to insert a new Part III concerning appeals in Scotland. The new provisions came into force on 1st July 1997 via the Firearms (Amendment)  Act 1997 (Commencement) (No.2) Order 1997 (SI 1997 No.1535).

The substituted Section 44 of the 1968 Act provides that an appeal against certain decisions of a chief officer of police (for example, a decision to refuse to grant or to renew a firearm or shotgun certificate, or to revoke such a certificate) lies in Scotland to the Sheriff, and that an appeal shall be determined on the merits and not by way of review. The Sheriff hearing the appeal may consider any evidence or other matter, whether or not it was available when the decision of the chief officer of police was taken.

The amended Schedule 5 to the 1968 Act provides that in Scotland an appeal to the Sheriff shall be by way of summary application made within 21 days after the date on which the appellant has received notice of the decision of the chief officer of police in respect of which the appeal is made. On hearing the appeal the Sheriff may either dismiss the appeal or give the chief officer of police such directions as he thinks fit as respects the certificate which is the subject of the appeal. The Sheriff’s decision on an appeal may be appealed only on a point of law. The Sheriff having jurisdiction is determined by the appellant’s place of residence.

The background to the new statutory framework is explained in the Parliamentary debate on the then Firearms (Amendment) Bill which was discussed by the House of Lords on 11th February 1997, when the then Lord Advocate (Lord Mackay of Drumadoon) moved the amendment that became Section 41 of the 1997 Act. The debate can be found in ‘Hansard’, HL, vol.578, columns 161 to 168, usefully noted in the commentary to Section 41 of the 1997 Act in “Current Law Statutes Annotated”.

Departing from Lord Cullen’s favoured approach for reform of the appeal arrangements in Scotland - by restricting it to enumerated grounds which did not trench on the chief constable’s exercise of discretion - the Lord Advocate of the day was concerned that the new appeal procedures should satisfy Article 6 of ECHR so that the citizen would be enabled to have his case considered by an independent and impartial tribunal through a re-hearing before the Sheriff.  He stated how in making decisions, chief constables were not restricted in any way as to the information they could take into account in deciding whether to grant an application or revoke a certificate. He also stated that the new broad appeal procedures would allow a complete and unrestricted appeal against any decision taken by a chief constable.

Procedural Aspects

In the original article, reference was made to the danger of relying on Sheriff Macphail’s “Sheriff Court Practice” (para 27-134), it being of limited value, published in 1988, and outdated as regards the relevant procedural Act of Sederunt, that cited of 1970 having been revoked and replaced by the Sheriff Court Summary Application Rules 1993.They too have since been revoked and replaced on 1 July 1999 by the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 (SI 1999 No.929).

Since the original article, the second (1998) edition of Macphail’s “Sheriff Court Practice” has been published, and the relevant text on firearms appeals is to be found at paras 26.183 and 184 which recite the terms of Section 44 as amended by the 1997 Act but without any useful commentary given that case law developments have all occurred post publication. Unfortunately, one of the footnotes still refers to the 1970 Act of Sederunt. Commentary on statutory applications (at paras 25.06 to 25.11) is more helpful.

More recently, there is Jamieson’s “Summary Applications” (2000) which discusses firearms appeals at paras 25-02 to 25-06, and which also includes a style for a Sheriff Court initial writ for a pursuer appealing against refusal of a firearms certificate by Summary Application (at style 21). In discussing more generally the scope of statutory appeals, the history of firearms appeals from Kaye v Hunter 1958 SC 208, through Rodenhurst v Chief Constable of Grampian Police 1992 SC 1, to the new appeal procedures in the 1997 Act are narrated (at paras 18-22 to 18-24). The original article is also cited in the footnote to para 25-04. Again, however, relevant up to date case law is unfortunately missing.

The Sheriff’s role

In the original article, I noted how practitioners seeking to understand the scope of the Sheriff’s role in a firearms appeal had very limited help available, given that there were very few decided cases and judicial authority was mainly unreported Sheriff Court cases. That basically remains the position today.

Sheriff Principal Risk’s judgment of 13 July 1995 at Kirkwall (B151/93) in Banks v Chief Constable of Northern Constabulary – what might be regarded as the locus classicus of the pre-1st July 1997 law on the Sheriff’s role in a firearms appeal – is still unreported, although its discussion in the original article led to it being commented upon in several judgments thereafter.

Giving an appeal judgment at Stonehaven on 9 July 1997 (B171/96) in Alexander McDonald v Chief Constable, Grampian Police, Sheriff Principal Risk noted the new appeal provisions, and observed that the new Act “cannot be taken as a codification of existing law, as is clear from the relevant passages of the Cullen Report and the subsequent White Paper.” He also noted how Banks had been “discovered” and discussed in the original article.

It was not until Sheriff McInnes judgment at Perth on 30 July 1999 in Stewart Nicoll v Chief Constable, Tayside Police  (B885/98) that the approach of Sheriff Principal Risk in Banks came up for re-consideration.

Nicoll and Lambie

Sheriff McInnes’s judgment in Nicoll is available on the Scottish Courts website, and digested at 1999 GWD 32-1549. In his view, Sheriff Principal Risk’s approach in Banks could not now be followed in its entirety having regard particularly to the terms of the amended Section 44 (2) and (3) of the Firearms Act, the appeal being determined on its merits and not by way of review of an existing decision, and the court being able to consider any evidence or other material, whether or not it was available when the decision was taken. Sheriff McInnes stated that the purpose of an appeal was not to give the appellant a second bite at the same cherry.The purpose of an appeal was to determine whether the decision of the chief constable was wrong. The issue in essence was whether, having regard to all the material which was before the court, the circumstances revealed that the continuing possession of the weapons and / or ammunition referred to in the certificates concerned would be without danger to the public safety or to the peace. Before the court could allow an appeal it would have to be satisfied that the chief constable had reached the wrong decision in respect of that matter. On 12 August 1999, in giving judgment in another firearms appeal before him, Sheriff McInnes at Perth in James Lambie v Chief Constable, Tayside Police (B913/98) adopted again the general approach he had set out on Nicoll stating that the Sheriff is required to consider the decision of the chief constable anew in the light of all the material which is put before the court. Lambie was heard on appeal together with Nicoll, as both concerned the same point of law namely whether the Sheriff of new decides to direct the grant or refusal or revocation of a licence or does he only do so if satisfied that the chief constable’s decision is wrong.

The Sheriff’s role redefined

Interim Sheriff Principal Cox gave his appeal judgments in Nicoll and Lambie on 5 May 2000. Unfortunately, unlike Nicoll at first instance, this judgment has not been put on the Scottish Courts website or digested in GWD, nor is it reported elsewhere. It is therefore necessary to detail here its answer to the question: what is the correct approach for a Sheriff to adopt when considering an appeal from the decision of a chief officer of police under Section 44 of the 1968 Act as amended by the Firearms (Amendment) Act 1997?

Sheriff Principal Cox held: “The 1968 Act as amended provides by Section 44(2) that ‘an appeal shall be determined on the merits (and not by way of review).’ ‘Appeal’ and ‘review’ are therefore, in the minds of the legislature, conceptually different. Lawyers have no difficulty in agreeing with that. When a decision is being reviewed the test to be applied is whether the decision arrived at was reasonable in all the circumstances. The court has also to be satisfied that it was reached fairly and impartially and in accordance with the law. If the decision complained of survives that series of tests it will be upheld. An appeal on the other hand looks at the merits of the decision. If the decision cannot be justified the appellant body may substitute its own view. Parliament must have intended more than the accepted difference between ‘appeal’ and ‘review’ because it specifies that the appeal shall be determined ‘on the merits’. Before amendment in 1997 Section 44 merely mentioned ‘an appeal’. The ‘merits’ are not the merits of the police decision. The ‘merits’ are the pros and cons of the facts relied upon by the appellant on the one hand and the chief constable on the other.”

The Sheriff Principal then continued: “ At the stage of an appeal the chief constable has ceased to be a decision maker and is cast in the role of a party to the dispute, the question in the dispute being whether on the facts the certificate(s) previously granted to the appellant by the respondent should be revoked or whether an applicant should be granted a licence. The Sheriff has to hear the evidence led by or on behalf of both sides and reach his own conclusion. The facts placed before the Sheriff may be more numerous or less numerous than the facts which were presented to the chief constable. They may be different. The chief constable may have relied upon ‘intelligence’ which he is not prepared to disclose to the court in order, for example, to protect the identity of a vulnerable informer, whose ‘evidence’ for aught seen may amount to no more than gossip he has gleaned from his contacts in the underworld. Such being the case it would be a denial of justice for the Sheriff to place reliance upon the chief constable’s decision on appeal as opposed to placing reliance upon the evidence which the chief constable chooses to lead. I therefore agree with the appellant in this case that in effect the Sheriff starts with ‘a blank sheet of paper’, and I further agree that the particular words in the statute are clear and unambiguous.”

In giving judgment in Lambie, Sheriff Principal Cox answered the question as he had done in Nicoll and for the same reasons, confirming his decision “that Section 44 of the Firearms Act 1968 as amended by the Firearms (Amendment) Act 1997 requires the Sheriff to conduct a re-hearing of the application and to reach his own decision regarding the appellant’s fitness or otherwise to be entrusted with a firearm or a shotgun as the case may be.”

Sheriffs elsewhere have now accepted Sheriff Principal Cox’s approach in Nicoll as being the appropriate approach. In Ian Stewart v Chief Constable, Strathclyde Police (B103/99, Oban, 7 June 2000) and again in Roy Paterson v Chief Constable, Strathclyde Police (B92/99, Oban, 19 March 2001), Sheriff Mackay adopted that approach in looking at firearms appeals before him.

In giving his judgment in Paterson, and adopting the view originally expressed in Stewart, Sheriff Mackay stated: “However, in my view, as Section 44 now stands, the Sheriff’s discretion in the matter is unfettered and is to be exercised on the basis of all the information before him. It is not a review of the decision, as was previously the case, but rather an appeal on the merits where the Sheriff is required to exercise a discretion unfettered by the decision of the chief constable. Plainly the issue of the weight to be afforded to the decision of the chief constable is a matter to be considered. The weight might be affected adversely if the chief constable was seen to have taken account of an irrelevant matter or had regard to an inaccurate fact. Absent those features it seems to me the weight to be afforded the decision of the chief constable is considerable and his decision ought not lightly to be disregarded. However, the decision on the matter is now the Sheriff’s.”

Sheriff Mackay also stated: “The Sheriff is not required to review the decision of the chief constable even in the light of all the information before the court but rather to reach a view of his own based upon all the information available to him including the decision of the chief constable, and the reasons for it so far as the chief constable sees fit to introduce this in evidence in the appeal hearing. In this particular case the evidence of an assistant chief constable, to whom the appropriate power had been delegated, included not only evidence of the basis for the decision as originally made but also the views of the chief officer of police on the information made available to him since the revocation. This was done, I assume, by the respondent’s solicitor telling the assistant chief constable what had been said in court and then examining him in evidence on the earlier material and subsequent material. The assistant chief constable was cross-examined in relation to all the new material. He expressed a view as to what the decision of the respondent would be in the new circumstances. It seems to me inevitable from that approach that what the Sheriff is enjoined to do is to reach his own decision of new, taking account of all the evidence before him including that of the views of the chief constable as at the date of the appeal hearing. That is the approach I have adopted in looking at this appeal.”

Later in his judgment in Paterson, Sheriff Mackay recorded: “Whether I agree with the respondent or not on this matter, it is in my view important to note that the respondent is not under any obligation to conduct the kind of enquiry which takes place in the event of an appeal. The chief constable is, in my view, entitled to rely upon written statements and upon investigations carried out by other police officers. He is entitled, in my view, to rely upon the information contained within written statements and is under no obligation to instruct further precognition unless there are glaring contradictions….The chief constable does not have the advantage of hearing witnesses personally; nor of hearing their evidence on oath; nor of seeing how they deal with cross examination. He is enjoined in terms of the Firearms Act 1968 to have regard to public safety and it is a very onerous duty. He is not in any sense obliged to embark upon the kind of enquiry undertaken in an appeal process.”

G Ian McPherson is Head of Legal Services at Strathclyde Police