Monday, 17 November 2014

Your Right to be Armed

Whatever happened to the right to keep and bear arms?

SRA Secretary Richard Law was invited to tease out the answer to this question in a presentation to the British Constitution Group’s conference in Sutton Coldfield on 1 November 2014, and this summary is derived from his notes. Faithful readers of the Shooter’s Journal and of this blog may find some of the history familiar, but it remains as true and relevant as it ever was. We should add that Mr Law didn’t use these notes during his presentation, as the print was too small and the light wasn’t good enough to refer to them; and they’ve been lightly edited for publication here.

The short answer to the question is this: the right to keep and bear arms  (RKBA) is hiding in plain sight, but to find where it’s hiding and to test whether it’s still real or not, one has to reach back through time to find its beginnings and then follow it to the present.
            The dawn of English legislation—the root of what we have today—was originally compiled by King Alfred the Great (AD 849-899), as the Doom (pronounced Dome) Book. Alfred amalgamated several pre-existing Saxon codes of law from the earlier kingdoms and prefixed it with Mosaic Law from the Bible. Biblical law from the Pentateuch tends to be people-oriented, while the early Saxon codes were more concerned with property and inheritance.
            Christians are familiar with the 10 Commandments, while Jews recognize a further 603, one of which, at Leviticus 19:15, says: Do not pervert justice; do not show partiality to the poor or favouritism to the great; but judge your neighbour fairly.
            Every four-year-old understands the principles of fairness, articulated, often loudly, at that age by a simple phrase: “It’s not fair!”—and often enough they’re right.
            King Alfred originated the requirement that the able-bodied men of his counties should turn out when he called them to defend the realm. It was an obligation, rather than a right, but it presumed a right.
            Alfred made no legislative or financial provision to arm or train his men. When called upon, they had to turn up ready to go toe-to-toe with the Vikings/French/Irish/etc., so the obligation was both to be armed and to have trained ready for that eventuality. There was nothing in his law that would prevent the men turning out in response to a threat; either individually, or collectively as the militia, to meet any enemy with appropriate force, defensively. Clearly, no one could fulfil his obligation if he didn’t have the right to bear arms in the first place.
            This concept survived the Norman invasion, as all William I won at Hastings was the Crown—the right to be recognized as successor to Edward the Confessor. That came with all the legislative baggage of the kingdom. The victorious knights who came with William to enforce his claim to the throne became a tier of government, and the obligation to turn out as necessary followed the top-down style of Norman-French governance. The king called the barons, and they called out their retainers.
            The phrase ‘common law’ comes from Henry II (1133–89)’s drive to improve the judiciary in the 1160s. He sent out judges from his own court to the counties to hear matters, so that there was one law common to all the people, reflecting the fairness principle in Leviticus and becoming the proto–quarter sessions and circuits. The common law principles came out of cases being recorded, and judges regarding each other’s decisions as binding in similar cases—the principle known as stare decices.
            This wasn’t, in Henry II’s time, the common law as we know it. There were still alternatives to the courts in the form of trial by ordeal and trial by combat, and court hearings did not necessarily trouble to hear evidence. Trial by ordeal was still in use in the witch hunts of the 1640s, and the right to silence that defendants had until Michael Howard’s tenure at the Home Office was actually an obligation until fairly recently.
            King John’s Magna Carta in 1215 is sometimes regarded as the first Human Rights Act, although Alfred would probably want his Doom Book regarded as such. King John had a go at revoking Magna Carta the following year, and it was King Edward I who issued a statute reconfirming it in 1297.
            So, the common law obligation has been there since before the Norman Conquest: it being a requirement for each man to arm himself as best he could afford (“suitable to his condition”) and to train in preparation for the call-out should it ever come. The time and effort weren’t wasted because, if the realm wasn’t in peril, there could and would be threats to the peace closer at hand.
            Also, nobody should set out to take on the Vikings without having trained with the weapons beforehand. The obligation to train is best remembered from a recently repealed archaic law that made it a requirement for yeomen to practice archery on the village green on Sundays. The archers who went to France with Henry V put some 42 tons of arrows on the advancing French in less than fifteen minutes at Agincourt. Their descendants will repeat the performance at the 600th anniversary re-enactment next year.

The individual right to arms was legislated against by King James II (who used militia to enforce his laws, or more particularly to solve his tax-gathering problems). James’s abuses led to his gentle overthrow, and the Bill of Rights in 1689 restated the common law—among other things restoring to Protestants various rights that James had sought to curtail while not denying them to his fellow-Catholics.
            The Pilgrim Fathers carried the Bill of Rights to America as the founding principles of their legislation. Their successors had run-ins with George III (1738–1820), who sought to curtail their rights and had a go at collecting their weapons up in lieu of taxes. His local agents failed on both counts because they were up against men who knew their Bible and their rights. And who were, of course, armed.
            The United States Constitution was hastily drafted in the 1770s. Hence the need for the rather more leisurely series of amendments promulgated in 1791; and it’s their Second Amendment that muddles thinking somewhat by seemingly tying the individual right to arms inextricably to the militia concept. There are variations of the wording, depending on source, but the US National Archive has it as: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
            Back in England, the individual right had been settled in 1689, and thereafter two Acts of Parliament sought to prevent the militia forming without having a direct threat to meet—the Unlawful Drilling Act, 1819, and the Public Order Act, 1936. But no one moved to prevent a spontaneous militia forming in defence of the realm in 1859 (volunteer rifle regiments, rifle clubs and the National Rifle Association, all in reaction to a possible invasion from France) and in 1939, when Essex men formed up as the Legion of Frontiersmen long before the Government called out the militia as Local Defence Volunteers, later renamed the Home Guard.
            In 1870, the Gun Licensing Act taxed the volunteers and other gun owners in the sum of ten shillings a year each: to be paid unless you held a licence to kill game, which was another tax, or benefitted from an exemption. The 1903 Pistols Act was likewise a tax. You needed only one of these three licences to have a gun beyond the confines of your home, and only then if not exempted.
            The government separated shooting clubs from rifle regiments in 1908 with the formation of the Territorial Army. After that, the clubs continued with charitable status for training men in peacetime for the defence of the realm in wartime, until service rifles were ‘prohibited’ in the 1980s, and club charitable status was revoked in the 1990s. Both by the same politician, as it happens: Douglas Hogg (Conservative, Grantham), who left Parliament in 2010 with a moat kept clean at taxpayers’ expense.
            Government was generally positive about the possession of rifles by the public, certainly from 1859 on, after they got caught napping and the defence of the realm really was in the hands of the people who lived here; that positive attitude carried through until the Great War and the call-out of the citizen’s army in 1915.
            The problem the government had after that was the Irish rebellion in 1916, appallingly handled; combine that with the Russian revolution and a world war which ended with four empires collapsed, twenty-seven royal families redundant or murdered; and all those new, bankrupt countries with inexperienced political leaders and a surfeit of weapons.
            The government asked Sir Ernley Blackwell to consider the problem of how to prevent European war surplus being sold off to wannabe rebels in countries like Afghanistan and Ireland. He decided the best thing to do was to ignore the question and crack down on the domestic market, particularly on pistols, and his report became the basis for the Firearms Act, 1920.
            Meanwhile, the government had given away captured German rifles, machine guns and field artillery to the public as inducements to buy war bonds. Servicemen returned from foreign battlefields with souvenirs could keep them, and they got a pay off—known as the Dole—of £1; or £2 if they handed the great coat in. The land fit for heroes was clearly nervous about them returning. This combination of events and the Liberal government’s reactive policies help explain why the Liberals became unelectable after 1918.
            Commander Kenworthy asked the Home Secretary during the debate if the 1920 Bill affected the right to defence and was told it didn’t. The 1920 Act wasn’t retrospective and contained a lot of exempted occupations. Its intention was to limit the acquisition of firearms, and more particularly of ammunition, to those whom they deemed friends of the government.
            The step change came in the 1930s, probably in reaction to developments in the United States, where the prohibition on the manufacture and sale of alcoholic beverages had led to organized crime and a lot of gunfights. The Federal Government passed the Gun Control Act of 1934, which imposed a transfer tax of $200 on machine guns and silencers. Individual states and cities had passed laws before that; Texas banned concealed carry in 1892 and New York prohibited carrying handguns in public places in 1911.
            The other reasoning was pragmatic. While you didn’t need a firearm certificate in the UK to possess a firearm for defence, it was and is a handy thing to have when you want to buy ammunition. So having a firearm certificate became worthwhile credential for people who used their firearms a lot.
            The Bodkin Committee (which reported in 1934) heard evidence that machine guns had no sporting application against deer, and the subsequent (1937) firearms act created a ‘prohibited weapons’ category, to possess any of which one had to obtain Defence Council authority. This wasn’t a tax. It became Section 5 of the 1968 Act, and applications for such authority are—to this day—free. The issuing authority, which mostly seems to do its best to avoid doing its job, became the Home Office in 1973.

The Prevention of Crime Act, 1953, led to police forces advising people who had firearm certificates for arms they kept for defence, that ‘defence’ was no longer a good reason for possessing a firearm on certificate. Some people changed their good reason—target practice or pest control; others handed their guns in; and some took them off ticket and kept them for defence. The seismic change in government policy—at a time when Winston Churchill was Prime Minister—seems to have come about in reaction to the nuclear bomb.
            In 1938, dying Prime Minister Chamberlain went to Germany and returned with Hitler’s autograph on a piece of paper, which he hailed as ‘peace in our time’. He knew perfectly well that he was lying; what he bought was time, during which the Chain Home radar stations were completed, the Observer Corps recruited and trained, conscription started, gas masks issued and Anderson shelters supplied to such of the urban public who had gardens to put them in, and the RAF took delivery of eight-gun monoplane fighter aircraft. So when war came in 1939, Britain had done as much as could have been done to prepare for it.
            In 1953, Britain could not afford to do anything to protect the public in the event of an atomic war, so they opted for doing nothing. The assumption was that an exchange of missiles would not be followed up by boots on the ground. The Russians would not invade the UK after polluting it with radiation. War was thus assumed to be a short-term affair, after which government’s problems would all be coming from erstwhile voters.
            The (post-nuclear) war-game scenario was that roving bands of heavily-armed and probably rather peeved citizens would appear outside the government bunkers. The scenario never saw them as the voters the government had let down so badly: it saw them only as the problem. So, one solution was to make it harder for these roving bands of common-law militia to get weapons, hence the new policy in 1954: after which firearm certificates would be issued only for possession of firearms for sporting purposes.
            Richard Law did some research in the 1980s and could find no evidence that Winston Churchill had ever held a firearm certificate. Churchill wasn’t into shooting as a sport, but he certainly kept firearms for defence, notably a Colt M1911, which was last seen on display in the underground Cabinet Rooms museum in Whitehall. From 1920 until the late 1980s, Scotland Yard recorded details of firearms on certificates in their area on a card index in serial number order. That Colt didn’t have a card.
            Following the murder of three London policemen in 1966 by Harry Roberts (just recently released from prison), Home Secretary Roy Jenkins rushed in shot gun certificates, after which the Firearms Act, 1968, was passed as an Act of consolidation. The Home Office commissioned (Sir) John McKay to report on firearms matters. McKay recommended a crackdown on the sporting public and what they used, and most of his recommendations eventually became the Firearms (Amendment) Act 1988, barring most ‘military’–type weapons from civilian sport.
            We note at this point that all the restrictions from 1920 onwards relate to firearms used for sporting purposes, and the earlier ‘restrictions’ were all taxes.
            In 1998, Mike Burke applied to the Home Office for a Section 5 authority for some prohibited weapon or other. He was refused as a matter of policy and appealed to the High Court, which in turn refused his appeal on the grounds that the Firearms Act, 1968, by implication repealed the Bill of Rights. (FC3 98/7400/3)
            In 2002, in the Metric Martyrs case (CO/3308/2001, Thorburn v Sunderland City Council), Lord Justice Laws said that there were ordinary statutes and constitutional ones, and an ordinary statute could not repeal a constitutional one merely by implication. The way to amend constitutional statutes was for a new act to say that that is what it is doing on its face.
            Taken together, Burke’s dismissed appeal and the Metric Martyrs case agree that the Bill of Rights has not been amended. The Firearms Acts are relevant to and control sporting guns, not military, militia or personal defence ones. Law, with Peter Brookesmith, set out this train of thought in the book Does the Trigger Pull the Finger (Spitfire 2011). Nobody has challenged what the book says as incorrect. The book also sets out a solution to the various problems the government has created for itself and us.

Currently, the only people regularly benefitting from your common law rights are cops and robbers. Cops because they have always carried firearms under the common law, exercising their (and your) right to be capable of defending themselves; and bad guys because, the anecdotal evidence is, when they claim that a firearm in their possession is for their own defence, they are not charged. The police don’t want to test the common law defence in court, and there are already several precedents confirming that your rights remain untroubled by legislation since the right was re-affirmed in 1689.
            In 2008, the United States Supreme Court heard District of Columbia v Heller. This case came about because Washington DC had banned handguns to virtually all its residents, except of course cops and robbers, and the few people who did have permission [sic] to keep a gun at home had to keep it dismantled and unserviceable, in which case it could not be used in the event of a home invasion or police raid.
            This turned DC into the murder capital of the United States: statistically the most dangerous place on Earth outside of some war zones. Mr Heller sought to overturn DC’s handgun ban and succeeded because the Supreme Court held that the city’s law infringed Heller’s Second-Amendment rights. The court recognized the right to keep and bear arms as an individual one. DC’s problem was that while the Constitution did not prevent them setting qualifications or taxes on the right, their law prevented the exercise of it altogether, and that was unconstitutional.
            The outcome was that DC had to revise its laws and create a carry permit law—thus following many other states in the past twenty years—so that its citizens could be armed for their defence as necessary. The increase in armed citizens, real or imagined, is certainly reflected in the downward trend of crime statistics in America.

Reading between the UK’s lines, we note that our Home Office treads a delicate path; in declining applications to register weapons for defence as a matter of policy, they are actually saying that you don’t need one for the purpose.
            But it seems to be the position that the law never has impeded the possession of arms for defence, so a Section 5 application is redundant. But if you make one and get turned down, it would not subsequently be possible for the police to prosecute you for not having one without charging the Home Secretary with complicity, unless the refusal was for some weighty and lawful matter and not issued as a matter of policy.
            In 2014, and after several false starts, the Scottish Government published a bill to create an air weapons certificate. In announcing it, Kenny MacAskill said that there was no right to bear arms in modern Scotland.
            We asked the question about implied repeal in modern Scotland, and they quoted the Metric Martyrs case back at us in a letter dated 17 September 2014; in effect, this is the argument from our book Does the Trigger Pull the Finger? So, either they’ve read our book and agree with us, or they’ve read the law and come to the same conclusions as we did.
            What they haven’t done, yet, is explain the attitude toward the RKBA of Kenny MacAskill—who has also avoided explaining to us, or to anyone, the lawful authority police in Scotland have for being routinely armed (a move made, possibly, because he’s in the process of reducing the drink-drive limit in Scotland in time for Christmas). The Scottish air weapons bill, if passed as drafted, violates the Scotland Act, the Human Rights Act, the European Convention on Human Rights, the Bill of Rights and the Claim of Right, and thus the Treaty of Union and the Firearms Act, 1968, as amended, to name but a few.
            So there it is. The Bill of Rights reasserts your common law right and obligation to arm yourself as best you can afford and to be prepared. It cannot be repealed by implication, according to Lord Justice Laws, and no attempt has been made to put your rights asunder overtly. The right (and obligation to train) you’ve had for over a thousand years is still there, hiding in plain sight.

Friday, 24 October 2014

Unannounced Visits

The old jokes are usually the best: police concerns about ‘terrorism’ and ‘criminals’ have led them to start a practice of making unannounced visits to firearm and shot gun certificate holders—to make sure that they are complying with firearms security measures. A classic case of ‘round up the usual suspects’.

The only legislation to be found on the subject is the two-part condition on firearm and shot gun certificates, which requires the holder to keep firearms secure, with a view to preventing access by unauthorized persons. The second part says that when guns are removed from the security for some (legitimate) purpose, the holder must take reasonable precautions to safeguard them.

Failure to comply would be a breach of the conditions. The police usually try to inspect security before issuing certificates and usually make a record of what the security consists of. The overt reason is to assess capacity, thus to save re-inspecting the same security as the numbers of guns held increases. The underlying reason is so that they know where to find them.

There is no statutory basis for what the security should consist of, despite numerous police attempts to create something. There is guidance, which is not law. Shotguns were not subject to the security condition at all until 1989, at which point the police wanted steel cabinets, and many forces suggested a British Standard alarm might be necessary if more than 6/8/10/12 guns were kept. Next up was the British Standard cabinet; policemen told us that once cabinets were kitemarked, all the pre-standard (and mostly recently acquired) ones would be obsolete. The British Standards Institute neatly navigated their way through these problems by coming up with a ‘thug test’ and classifying cabinets against how long it took their thug to get them open. That, in effect, retrospectively approved most commercially-made cabinets.

A few years later, a Home Office study of stolen firearms came up with some interesting facts, but didn’t mention any guns being stolen by way of the cabinet being broken into. They also found that most of the 2000+ ‘guns’ reportedly stolen each year weren’t firearms. This came about because the police used tick-box forms to record what has been taken, so the firearms box was the nearest match for glue guns, paint spray guns, hot air guns, nail guns, toys, antiques, air guns, wall hangers and quakers, that wouldn’t have been in gun cabinets anyway.

That got the figure down to more like 400, of which most were shotguns. Around 16% of these went when the burglar found spare keys on the premises and another 16%+ went when the burglar ripped the whole cabinet off the wall. So, a bit more than a third of the thefts might have been prevented if certificate holders kept their spares keys at work, with a friend or relative (but not one with access to the house—see Farrer v Chief Constable of Essex), or in keyless security—a combination safe. These have become much more common and affordable in the last twenty years—worth a look.

Professional installation, or at least the equivalent, using good rawl bolts to a good surface would help. We suggested lying the cabinet down, for two reasons. It will hold twice as many guns in that position and the floor is usually stronger than the wall for bolting it to. Then there’s the bonus that it’s much easier to conceal; trunk it in with plywood to store your shoes on, and it’s vanished. The Home Office never did like concealment, as that would mean the police can’t find your guns; unless you show them where they are. 

So, stolen firearms are very few in proportion to those registered, far fewer than official statistics implied, and the number is way smaller than the number of stolen firearms that subsequently get used in crimes other than ‘possession without a certificate’ or by a prohibited person. The number is so small, the Home Office doesn’t mention it; partly because they don’t know. The reason for that is the majority of firearms in circulation are not registered to certificate holders.

We pointed this out to the Home Affairs Select Committee when they were hunting in the wrong places for scapegoats after Derrick Bird’s murder spree in Cumbria in 2010. Yes, he held firearm and shot gun certificates, so where did he get them then? Answer, from the police. What was different about him, and more recently Mike Atherton (another murderer) in Durham, was that they’d got their certificates without falling under the scrutiny of their shooting peers, because they didn’t seem to have any.

That’s the way the Home Office apparently like it. From 1997 on, they went to a lot of trouble to diminish the input of shooters about each other, particularly at renewal.  They prefer your referees to be non-certificate holders; people who don’t know what you’re like around guns. Their logic is that shooters will stick together and sign for each other regardless.

Oh really. Actually we, the people who will encounter the applicant when he has loaded guns, have precisely the opposite vested interest to Home Office imaginings. We don’t want to meet anyone in our clubs with whom we don’t feel safe or comfortable when they’re around loaded weapons, yet for some reason, Home Office logic diminishes the importance of our views about newcomers and old hands.

The Home Office solution is a hotline for non-shooters to denounce legitimate shooters anonymously. How any of this diversion of police resources is going to have an impact on terrorism isn’t clear. In a recent case, a bunch of young men in London have been charged with acquiring a handgun and silencer and planning to shoot at police with it.

What interested us about this case is that the handgun/silencer combination most often seen in recent times is a Makarov pistol. These guns have been illicitly imported for the drug-dealers and gangs to use as bling and occasionally to defend their turf. So this wannabe terrorist cell has apparently gone to those illegal sources for their weapon. Now try figuring out how that might have come to light by checking a firearm certificate holder’s security. 

Wednesday, 22 October 2014

Prohibited persons: suddenly, there's more of them

This may affect someone you know!

This isn't something you might readily think of as having anything to do with us, nor is it a leftover from the Apartheid regime in South Africa. It’s section 21 of the Firearms Act, 1968, and it’s been in the news recently, and briefly, because the Home Office store up bad ideas on the off chance that they’ll get a sleepwalker of a minister to figurehead such stuff onto the statute books when nobody’s looking. And they had just such a candidate in Damian Green (Conservative, Ashford), who was pleased to tell the  British public—in defiance of common law—that to keep and bear arms was a privilege and not a right.

Section 21 may affect someone you know, so stay with us. A ‘prohibited person’ is someone who was sentenced to more than three months in prison. If the sentence was suspended, the prohibition starts two days after sentence was passed; if time is served, the prohibition starts on release and runs for five years unless the sentence was three years or more, in which case the prohibition is forever or until an application to the courts to lift it succeeds. What’s prohibited? Possession of firearms or ammunition. To break this down, let’s start at the beginning.

When the first Firearms Act was drafted in 1920, it included a clause that prohibited convicts who were sentenced to more than three months in prison (with or without hard labour) from possessing firearms for five years after release from incarceration. This clause carried forward into the 1937 Firearms Act as was; the first time it came up for amendment was in 1965, when a number of small bits of legislation went through Parliament with very little discussion ‘paving the way’, as it were, for the abolition of the death penalty that year.

The significant change wrought by the 1965 Act was that the ‘prohibition’ on possessing firearms for five years after release was capped at sentences of less than three years. For those sentenced to three years or more, a lifetime prohibition was introduced, with a proviso that a prohibited person could apply to the court for the prohibition to be lifted. That application process was an opposition amendment that the government accepted without much debate. Specifically, nobody discussed or raised the grounds on which prohibition might be lifted, just that it could be on application. The feeling in Parliament reads as concern about violent criminals obtaining firearms too soon after release. This Act, together with the 1937 Act and the provisions of the Criminal Justice Act, 1967 (which introduced shot gun certificates) were consolidated into the Firearms Act, 1968, in which section 21 refers to prohibited persons and section 21(6) is the clause permitting application for release from prohibition.

What the prohibited person can’t do after release is possess firearms or ammunition at any time. A firearm is a lethal barrelled weapon from which any shot, bullet or missile can be discharged. ‘Lethal’ was defined in Moore v Gooderham in 1960 as capable of causing injury; now articulated as 1 joule of energy, so it includes most air guns, but not airsoft or paintball. They’ll be caught by the proposed lower power limit in the proposed Scottish air gun bill without being firearms. Ammunition includes airgun pellets and might include blank cartridges, courtesy of R v Stubbings in 1989.

The tricky bit is the word ‘possess’. The 1968 Firearms Act exempts certain people from the need to hold a certificate when possessing a firearm under certain circumstances. Most of these are job-related, including warehousemen, auctioneers, firearms dealers, slaughtermen, actors and theatrical production staff, plus people handling maritime or aircraft equipment. Some of the exemptions could be volunteers: the person firing the starting gun at a race meeting might be a professional, such as at the Olympics, or an amateur, such as a scoutmaster on a village green near you. In every case, someone has a certificate for the firearm and the means of enquiring into the background of anybody to whom he may entrust possession.

What is interesting is the four exemptions from the need to hold a certificate to be found in sections 11(4), (5) and (6) of the 1968 Act and section 16 (1) of the 1988 Act. These exemptions relate respectively to using a rifle at a gallery range, borrowing a shotgun on private premises, borrowing a shotgun at an official clay pigeon shoot and borrowing a rifle on private premises. In these four instances, the exempted person is described as ‘using’ the firearm, whereas everywhere else, including section 16(2) of the 1988 Act (relating to ammunition) the exemption is so that the person can ‘possess’ it without their own certificate.

Logic suggests that since these exemptions apply to casual sporting encounters where the authorized person lending the gun out might not know the temporary guest well enough (or at all in the case of a shooting gallery) to know if they have a shady past, which in any case they have no means of enquiring into. In any event, these exemptions only work when the authorized person is in immediate control of both the firearm and the person using it. The wording of the Act clearly means that the authorized person is not committing the offence of transferring possession of the firearm to a prohibited person, and the chances are that the same wording would prevent a prohibited person committing an offence by ‘using’ a firearm, such as an air weapon at a fairground shooting gallery.  People whose custodial sentence prohibits them from possessing firearms on release are told about this by the prison staff before they are let out, so people like author Lord Archer, former jockey Lester Piggott and actor Leslie Grantham know the score.

The new problem for people who have brushed up against the law is changes made to the Firearms Act in July this year. There are two; one includes suspended sentences as counting towards prohibition and the other amended section 58(2) so that prohibition now extends to the possession of antique firearms.

Until now, suspended sentences didn’t count towards prohibition because, as argued in R v Fordham (1969), the key word is ‘release’. The Home Office have side-stepped this with wet paint on the barn door, which says that in the case of a suspended sentence of more than three months, prohibition kicks in two days after; that gives someone caught up in it a few hours of daylight to make sure they haven’t got any antique firearms, air gun pellets or darts, or a souvenir from the Falklands at home. The reason for this change is that the Cumbria murderer Derrick Bird had received a suspended sentence of six months in the 1980s—more than five years before he applied for his first certificate—but the need to do something by making a pointless gesture is obviously still alive in vacuous political circles.

The antiques exemption, since 1920, has stated that nothing in this Act relating to firearms shall apply to an antique firearm which is sold, transferred, purchased, acquired or possessed as a curiosity or ornament. That’s always been fertile ground for the police to have fun with, and now has the added dimension that the exemption no longer benefits prohibited persons.

‘Antique’ has never been defined as such; where the courts have considered the question it has always been one of fact and degree. The common ground is that an antique is a bygone, no longer used and the point in the Act is that it doesn’t need a certificate provided it is kept solely as a curiosity or ornament.

Starting at the end, the words ‘curiosity’ and ‘ornament’ were used by Exchange & Mart magazine from their launch in 1868 to advertise their publication in other periodicals, so by 1920 these words had resonance for the people drafting the first firearms legislation. One could question the position of people who hold them as ‘stock’, but generally the words mean it’s not for firing, so everyone in the chain, trade or collector/investor should be safe: unless prohibited...

The Crown tried arguing (Richards v Curwen, 1977) that the availability of ammunition was an indication that a firearm was not an antique. The Court of Appeal rejected the argument; the test is firstly curiosity or ornament and then secondly age and obsolescence. In that 1977 case, the exhibits were two revolvers of 1890s vintage and in acquitting the defendant the judge said he could not envisage a firearm made in this (the twentieth) century as being an antique. By the time R v Brown was argued in 1994 (over a .22 War Office Pattern rifle dated 1906) the judge said that time had moved on and so must the definition. Nevertheless, the Home Office introduced their 1992 list of obsolete calibres as an extension of their 1986 list of obsolete ignition systems as an aid to defining what an antique firearm is. The list is helpful as far as it goes, but does mean that two firearms made in the same year and in the same factory might be classified differently by rigidly using Home Office advice.

This change to the law seems to have happened because the men who murdered Gunner Lee Rigby in London had a firearm with them that would have been classified as an antique had they possessed it solely as a curiosity or ornament. Once they took it with them to a crime scene, however, the exemption would not apply, so it’s difficult to see what mischief this change to the law is meant to address.

Where a prohibited person is found in possession of a firearm that Home Office guidance recognizes as an antique, to succeed in prosecution, one has to go back to first principles to establish that it is a lethal barrelled weapon from which any shot, bullet or missile can be discharged. Just as air guns which fail to make the power threshold don’t result in prosecutions, antiques that don’t work won’t either, although some may contain component parts that are themselves prohibited, etc. There’s going to be plenty of work writing court reports about how these different atoms are split to determine guilt or innocence. 

The effect of extending prohibition to include suspended sentences of more than three months might catch a few certificate holders or antiques collectors, who would have to get rid of what they have sharpish to avoid a further prosecution.

The effect of catching antiques collections in the prohibition is likely to reach further, in that there are probably quite a few people in our society, reformed enough to hold good jobs and wealthy enough to dabble in antiques who are now committing an offence by having those collections.

Section 21(6) has been on the statute books since 1965 to enable people whose past misdeeds attracted a prison sentence long enough to permanently prevent them possessing firearms (now including antiques) without first applying to have the prohibition lifted. Quite a few people have made successful applications. The process is straightforward: apply to the Crown Court with a copy to the chief officer of police for the area. Canny applicants might canvas their police first, to see if any objections are likely to be raised.

The usual police practice, on receipt of such an application, is to review what they know about the applicant since his release from prison. They then have to take a view as to whether they should oppose the application or not and advise the court and the applicant accordingly. There’s no case law to rely on, as such. Gordon v Northampton Crown Court (1999) was a challenge to the court’s decision not to lift prohibition and the High Court took the view that there was nothing wrong with the way that the Crown Court had exercised its discretion. What there isn’t is any kind of guiding template from this case or any other.

Parliament didn’t give any consideration as to the types of offences for which one might succeed or otherwise on an application beyond vague concerns about violent offenders, but Home Office guidance (published 2014, paragraph 5.10) says that prohibition will usually be lifted where the offence did not involve violence or firearms, giving no indication that any period of rehabilitation might be required. That was true for one of our clients, who got nine months for fraud and prohibition lifted within weeks of release.

Home Office advice is not law, however, and so often misrepresents the law as to be dangerous to its readers. The High Court ruled in 2002 (Shepherd v Chief Constable of Devon and Cornwall) that a firearms conviction was not evidence of danger to public safety or the peace, so HO advice is, as usual, at odds with the courts. Shepherd’s case was one of possession of prohibited weapons after the hand-in period of grace ended, so although there was some dishonesty evident, it was essentially a conviction arising from the administration of the Act and not related to dangerous behaviour.

We have assisted in lifting prohibition for various clients, most of whom were convicted of dishonesty. Where sentences were for other crimes, including aggravated burglary, drugs dealing and GBH, the police approach was inevitably going to be to consider the original offence, the length of the sentence, the passage of time since release and the evidence of rehabilitation.

The police did not oppose the aggravated burglary client twelve years after release—with an excellent record of rehabilitation. The GBH case came more than twenty years after release, and police objections were based on circumstantial evidence that he might have been violating the prohibition by plinking with an air gun in his back garden. The court took the view that lifting the prohibition would solve that problem. The drug dealer failed on an application seven years after release; the police view was it was too soon, but after ten years they wouldn’t oppose him. They did oppose him again when he next applied twenty-three years after release, but the court allowed his application on that occasion.

So on balance, Lord Archer and Lester Piggott should have no problem getting prohibition lifted, if they want to and if they haven’t done so already, but Leslie ‘Dirty Den’ Grantham might struggle while Christopher Craig (for whose crime Derek Bentley was hanged) didn’t have to bother. They’d all struggle in London, where police policy seems to be to oppose everything, despite the guidance of the 1966 decision Joy v Chief Constable of Dumfries and Galloway, which says that an application should be considered from the perspective of the applicant and not from that of a possible objector. 

Parliament’s approach related solely to the length of the sentence, not what it was for. In principle, anyone released from prison is capable of demonstrating rehabilitation (or otherwise) by what they do (or don’t do) in the intervening period and, while case law is thin on the ground in the context of firearms, there are decisions in other areas of law that one could draw on—in particular, the sex offender’s register. Numerous applications have been made by people wanting to come off it, such that a rule of thumb seems to be developing that fifteen years without getting into mischief is sufficient evidence of rehabilitation to allow them to come off the register—and by definition a sexual offence is a violent crime. It would be interesting to see what happens if one such applicant applies to have his firearms prohibition lifted at the same time.

Monday, 10 February 2014

A few more regulations to love

To be precise:

            2013 No 2970
            The Firearms (Amendment) (No2) Rules 2013
            Commencement date 1 December 2013.

These rules amend the Firearms Rules, 1998. The rules prescribe the format of the various certificates issued under the Act and the forms for applying for them, so one way or another they’ve always been with us and usually a year behind the legislation. We had a 1968 Act, 1969 Rules, 1988 Act, 1989 Rules, 1997 Act (twice), 1998 Rules. There are some changes each time. The main change with effect from 1 December 2013 is that there is now only one form for firearm and shotgun certificate applications, grant or renewal. You fill in the relevant parts according to what you’re applying for, then get one referee if it’s for shotguns only, or two if it’s for firearms or both.
        Condition 2 on firearm and shot gun certificates is also amended. The 1998 rule was at odds with the certificate template contained in the same rules and this amendment brings the two together. The 1998 rule says:

(ii) the holder of the certificate must inform the chief officer of police by whom the certificate was granted within seven days of the theft, loss or destruction in Great Britain of the certificate;

But the condition on the certificate reads:

2. The holder of this certificate must inform within seven days the chief officer of police by whom this certificate was granted of the theft, loss or destruction in Great Britain of this certificate and/or the theft, loss, deactivation or destruction of any firearms or ammunition to which it relates.

The new for 2013 rule reads, as a substitute for paragraph (4)(ii):

“the holder of the certificate must inform the chief officer of police by whom the certificate was granted within seven days of –

(a)  the theft, loss, or destruction in Great Britain of the certificate;
(b)  the theft, loss, deactivation or destruction in Great Britain of any firearm to which the certificate relates;
(c)   the theft or loss in Great Britain of any ammunition to which this certificate relates.”

The condition on the new form of certificate reads:

2. The holder of this certificate must inform the chief officer of police by whom the certificate was granted within 7 days of the theft, loss or destruction in Great Britain of the certificate and/or the theft, loss, deactivation or destruction of any firearms and/or the theft or loss of ammunition to which this certificate relates. 

So certificate holders no longer need to report deactivation or destruction of their ammunition to the police, thus saving the Home Office answering the open question as to whether consumption of ammunition was also destruction. Apart from that, it’s a tidying up.
       What we don’t know is whether applications made before 1 December will get old style certificates as police slog through their backlogs, or whether everyone 1 December on will get the new condition, or whether the changeover will be when old stationery has been used up. You’ll have to read the printed conditions on your next certificate to see how it’s been handled.   
      ‘Great Britain’ is referred to instead of the ‘United Kingdom’ so that anything going on in Northern Ireland relating to the peace process is nothing to do with the police, here or there.
      We note, in passing, that ‘calibre’ is now ‘calibre metric or imperial’, so things will be as confusing as ever. ‘Calibre’ means the nominal diameter of the bullet, while most ammunition is known by a variation of their calibre, which is best thought of as a brand name. So .38 Special is a brand name; the calibre is .357in (groove) or .354in (land), the latter being 9mm in metric, and so on.  In practice, most police forces have ignored ‘calibre’ for years in favour of what the cartridge is known as when you’re buying it. 

There’s an interesting little nugget near the end of this new raft of rules, in an addition to the conditions on an auctioneer’s permit. An auctioneer is exempted from the need to hold a certificate for the possession of firearms and ammunition in the ordinary course of his business; likewise is a warehouseman or a carrier. The difference between the three is that auctioneers sell stuff, so while they can retain firearms on their exemption, to sell them they have to get a police permit, which sets in train the mechanism by which the police are notified of (a) what the auctioneers is going to sell, and (b) after the sale, to whom he sold it.
       Condition 1 on an auctioneer’s permit states that it’s an offence to sell any firearm or ammunition to anyone other than a registered firearms dealer, any (controlled) firearms or ammunition unless the other person produces (as appropriate) a firearm certificate, a shot gun certificate or demonstrates an exemption from the need to hold one.
       That’s been the case as far back as we go, but the 2006 Violent Crime Reduction Act created a number of anomalies, and condition 3 on the auctioneer’s permit reveals one of them:

3. Under section 3(1)(c) of the Firearms Act 1968, as amended by the section 31(1) of the Violent Crime Reduction Act, 2006, it is an offence for a person to sell or transfer to any person an air weapon other than a registered firearms dealer.

4. Under section 32 of the Violent Crime Reduction Act, the final hand over of air weapons must take place in person.

So the conflict is this: an ‘air weapon’ is a firearm within the meaning of section 57(1) of the 1968 Act, defined in section 1(3)(b) as an air rifle, air gun or air pistol not declared ‘especially dangerous’ by the Secretary of State. The Firearms (Dangerous Air Weapons) Rules, 1969 identify as ‘especially dangerous’ air rifles that generate more than 12 foot/pounds of muzzle energy and air pistols with more than 6 foot/pounds of push.
      So under condition 1 on the auctioneer’s permit, one can demonstrate an exemption from the need to hold a certificate for a firearm (a low powered air gun) by being over 18 years old. However, condition 3 prevents the auctioneer selling a low powered air gun to anyone other than a registered firearms dealer, who, under condition 4, has to be present to receive it. That makes transactions involving air guns harder to complete than for ‘real’ ones. Good, eh.

Wednesday, 29 January 2014

Is This Why Mark Duggan Died?

On 8 January 2014 an inquest jury ruled that the shooting of Mark Duggan on 4 August 2011 was lawful. We watched Metropolitan Police Assistant Commissioner Mark Rowley trying to read his self-serving statement aloud outside the High Court in London to a hostile crowd. Our interest was piqued by AC Rowley’s earnest desire to ‘get firearms off the streets’.
     That’s the official reason why Metropolitan police officers attacked registered firearms dealer Guy Savage in February, 2011, their opening gambit being to shoot his tyres out. Then, having taken him into custody, they cleared his arms factory at Sabre House, Northolt, of all firearms, ammunition and parts. Having established that he had committed no offence in the United Kingdom, they didn’t give any of it back, as ‘keeping guns off the streets’ means shutting dealers down, the same as in the drugs market. Except that a) firearms dealers are easier to find, as they are all registered with and by their local police chiefs, and b) nobody has ever tried reducing drugs crime and illicit drug dealing by cracking down on registered pharmacists.
     Material presented at the Duggan inquest suggests the police had intelligence that he was going to obtain a firearm from somewhere, so they swooped on him when they expected to find him in possession of a firearm. That makes a change: they usually pounce on people they know have guns when they are least likely to be holding one—in Guy Savage’s case, when he was on his way to work.
      Mark Duggan spent most of his last few minutes in a taxi, which was box-stopped by three unmarked police cars. But how was he to know they were police cars? Given that he was supposedly a gangster, would the police have been on his radar? Or would he have initially interpreted what was going on as an attack by a rival gang? That would have kick-started his constitutional right to defend himself.
     In a sense it was a gang attack, of course. The Metropolitan Police are the largest armed gang on London’s streets. Something that seems to have passed AC Rowley by. Anyway, Duggan had a toy gun, said to have been adapted to fire one shot. We can’t confirm this because Michael Vaughan’s forensic report on the pistol recovered at the scene  does not seem to be on line, although the other forensic reports released to the Duggan inquest are. In these, experts tell how tried but failed to link that pistol to Mark Duggan forensically. It had blood from two other people on it, but no DNA linkage to Mark Duggan.
     That’s unsurprising, since the intel was he’d only just got the gun, and it was riding in a shoe box in the taxi. The likely scenario is that when the box-stop occurred, Duggan must have realized very quickly that either they were armed police or that they were an armed gang and he was outclassed. He most likely threw the pistol over the fence in front of him as he exited the nearside rear door of the cab.
     The police must have come around the vehicles onto the pavement from both ends of the traffic jam, as it were. The chances are Duggan saw one and tried to run away, which meant he was running at the officer who fired on him. The bullet track through his torso suggests a running position, head and shoulders forwards of hips. The police weapon was said to be an MP5, a long-barrelled shoulder-weapon intended for 100-yard shooting, loaded with +P long-range ammunition and a bullet designed to expand on impact: prohibited for use against people by a European directive, adopted by Britain, 21 years ago.
     Shoulder weapons present a number of operational problems in policing. We’ve touched on it being intended for long range shooting; there have been occasions when police have used them lethally over greater distances than they could have effectively hailed or challenged their suspects before firing. Shouldering a weapon means that your weak arm obscures your suspect’s hands, unless he’s got them above shoulder level already.
      Using high velocity ammunition in a long barrelled weapon at short range meant a through-shoot . The bullet exited Duggan and then struck another police officer. This suggests that the circumstances in which the police found (or had put) themselves was not one they’d trained for. So who let them out on the streets with live ammunition to do things for which they were untrained and unprepared? Perhaps they had trained for what happens after a box-stop and then drifted off the script, so setting themselves up for the Irish firing squad that developed. Duggan himself may have led them off the script, not having had prior training for how to respond to a police attack.
     And that’s the essential difference between him and Guy Savage. Mr Savage managed to get his surrender to armed police accepted after shots had been fired. Trained man that he is, he knew what to do to maximize his chances of surviving the police attack. Mark Duggan didn’t. He was probably trying to flee, but in all the excitement ran away from one police officer and at another. Running straight at that policeman would have been interpreted as a hostile act. So it wasn’t entirely unreasonable for the officer to open fire, although he if he’d been armed with a pistol and thus could see that Duggan was unarmed, he might not have felt any need to shoot.
      It’s too simple to say that Mark Duggan was a victim of the limited training armed officers receive and the inappropriate kit they carry. The fact is, he didn’t know how to surrender in the circumstances. If someone points a gun at you, the safest bet is to faint (or seem to). A poorly trained shooter will fire where you were before you disappeared from his view behind his own hands and when he next locates you visually he’ll assume he hit you.
      He should at least assume you’re out of the fight, and thus that you’ve surrendered. Shooting you on the ground will be harder to explain to an inquest, although not impossible, as we know from the case of Jean Charles De Menezes—another fellow who didn’t know that he needed to surrender to the biggest armed gang in London. 

Thursday, 16 January 2014

Holes in the Road

The BBC contacted the SRA on this very subject in November 2013, having realized that former Royal Marine Matt Seiber was photographing damage to road furniture and posting the images on his website ( We couldn’t deny all knowledge of the phenomenon: we’ve photographed some ourselves, and were involved in one court case on the subject in the 1990s.

Modern road signs are painted on 11-gauge aluminium; these are the ones that attract bullets. In Corsica in 1988, we saw holes that appeared to have been made by SG shot—which in France is available legally only to the police. In some parts of some US States, road signs seem to be regarded as a public provision for passing shooters, rather than as a service to travellers.

We prepared evidence for a case in which Mr B was prosecuted by Northumbria’s finest in 1999. He had a shotgun that he used on a private clay pigeon shoot in the field behind his home, and a road sign 585 feet from his rural abode had holes in it.  A man parked near the road sign claimed to have been shot at by the defendant from his home. The road sign and thus the would-be victim of this supposed incident would have been in the fall-out zone for number six shot fired from the cottage, if the gun were fired at a high enough angle in their direction.

Charter gun club member and sign-writer Ken Potts furnished us with off-cuts of the aluminium he used for road signs. We found that number six shot went through it at three feet, making a single large hole but not at 21 feet, where it made multiple dents. By the time we visited the crime scene the road sign casualty had been replaced, but, working from poor quality police photographs, we assessed the damage as having been caused by a shotgun fired at the road sign at a range of no more than about seven feet.

There was a lot of clay pigeon debris and plastic wadding to be seen in the field behind the cottage, suggesting that clays were fired on from the cottage garden, at a 90-degree angle away from the road. No evidence of shots fired in the direction of the road from the cottage was discernible in the field. The jury had to decide if Mr B had turned through 110 degrees from his clay shoot to drop shot onto the road and the victim, as claimed, or not.

The charges relating to damaging the road sign were dropped in reaction to our report. What we don’t know is whether that was because our evidence was of close action against the road sign while the victim claimed the gunman was two hundred yards away, or whether it was because the evidence, in the form of the wounded road sign, had gone missing.

Had the road sign been in place, we could have formed some opinion about the age of the damage. Bullet holes in inanimate objects remain to be seen until repaired or otherwise for as long as the object exists. The Prefecture opposite Notre Dame in Paris still bears the bullet scars of the 1944 battle by elements of the police and population to rid their city of German occupation in anticipation of the French 2nd Armoured’s arrival. War damage can also be seen around London, such as to the Obelisk pedestal on the Embankment, scarred by a bomb dropped from a Zeppelin. Visitors to Colchester, Essex,  can see bullet damage caused during the civil war in the 1640s.

The difference between buildings and road signs is that stone weathers. When aluminium is first damaged, the scratch, dent or tear looks bright silver. This weathers to a dull lead colour over time. After that, the bullet holes remain looking awesomely like bullet holes forever.

The damage seen on rural road signs may be fresh, but may be as old as the sign. We didn’t do any life tests to determine how long the damage takes to weather, so we can only say that fresh damage looks fresh, while aged damage has oxidized. The damage looks much the same whether caused a year ago or fifty.

Matt Seiber describes some of the damage he has recorded as being made by pistols. They’ve been restricted to cops and robbers since 1998, which limits the suspect list somewhat, if the damage is comparatively recent. Our observations in Corsica were that the holes were caused by road users, in the sense that the bullet wounds couldn’t be attributed to stray ammunition overshooting from a field or wood, because of the short ranges involved. The same was the case with Mr B. He’d have had to leave his property and stand on the grass verge next to the road to do the damage seen in police photographs.

We’d extend that thought to road signs generally. They face oncoming traffic and are thus edge on, as it were, to adjoining fields and are quite often shielded from the field by a hedge or other trees and vegetation. Where roads have been widened post-war, they tend to be thickly planted, particularly in cuttings. Buckinghamshire’s roads are planted with a wide variety of trees for spectacular autumn colour effects and it would be quite difficult to struggle through that lot from the field to square up to a road sign and try making holes in it.

It’s more likely, therefore, to be someone who is on the road in the first place and who probably has no business in the fields. It’s more likely to be Bonnie and Clyde testing their guns between heists than firearm or shot gun certificate holders, who got their certificates only by having somewhere safe and legal to use the guns.

It’s an offence to fire a gun on or near a public highway if doing so causes any inconvenience or interruption to another road user: unless you’re a policeman shooting Guy Savage’s tyres out. Making holes in a road sign, whether you use a firearm or a battery-operated electric drill is criminal damage. The last time we thought about this was back in 1997, when we commented darkly that it was surely no coincidence that armour-piercing ammunition was prohibited on the same day as speed cameras were legalized.

We wondered, in passing, if speed cameras had received any attention from snipers in the UK. A quick internet trawl turned up one unoccupied police camera van riddled with bullets from an automatic rifle—in the United States—and numerous reports of vandalized speed cameras. UK ones seem to suffer burn damage, although the cause is often not obvious, leaving room for the suspicion that at least some cameras commit suicide. 

A 2011 report in claimed that 44 Belgian speed cameras were vandalized in 2010, and in the five years prior to the date of the report, 49 cameras had caught fire, 19 were shot and 47 spray painted. While fire could be caused by an electrical fault within the camera, getting painted or shot couldn’t. The report also claimed that cameras had been attacked with builders’ foam (which expands to fill the space available to it), and blamed Jeremy Clarkson for the concept. Also in 2011, a bomb disposal expert was injured in the Netherlands when an improvised explosive device attached to a speed camera went off.

So much for Belgium being boring. Other reports from the same source mention camera attacks in eastern Europe, Saudi Arabia and Australia. Fire seems to be the commonest cause of damage, but in Saudi Arabia, camera vans have had to be fitted with steel grills over the windows to protect the crew from rocks thrown by passers-by. In the US, a man was hauled before the courts for attacking a camera using a catapult and marbles.

The general absence of reports of bullet holes appearing in speed cameras in the UK suggests that whomsoever made the bullet holes in road signs either has nothing against speed cameras, or that wounded road signs were shot a long time ago before cameras first appeared in 1997, or both, or even neither.

Guns Review magazine (1960-97) worried in the early 1960s about the lower classes having access to guns that they didn’t have anywhere (legal) to use. In the 19th century, after guns became more reliable and before road signs were invented, the usual victim of casual criminal damage was the weather-cock. Also in the 19th century, the Royal Mail made security guards on mail coaches buy their own powder and shot, because so much was being consumed as the coaches trundled through the countryside. They probably didn’t have road signs to shoot at then, but plenty of edible wildlife might have been suspected of planning an attack on the coach. Not to mention the occasional highwayman.

Police comments suggest that bullet holes in road signs are not particularly common, nor do they get reported often. On a scale of things, with over 20 million firearms in the UK and barely 10 per cent of them registered, the limited amount of criminal damage caused is not much to get worked up about. At least, not until road signs have lawyers.