Orgreave Revisited

Thirty years ago, men convened by the National Union of Mineworkers, then engaged in strike action that lasted a year, confronted police at the Orgreave coking plant in South Yorkshire. The result was, in essence, a pitched battle.

            Ninety-five men were arrested and subsequently charged with riot. All were acquitted, as lawyers engaged in pre-trial argument saw the indictments off. The legal quagmire was such that nobody got a satisfactory outcome. On the strikers’ side, the police were perceived as having over-reacted, used excessive force, perverted the course of justice, committed perjury etc. On the police side, officers who made arrests did not get to explain their actions in court for a jury to decide the guilt or innocence of the suspects.

            Thirty years on, the Independent Police Complaints Commission has decided against re-opening the matter, primarily because it’s so long ago that, in all probability, the police officers involved have now retired and are thus beyond the reach of any IPCC investigation.

            An officer of our acquaintance who was there said that the ‘iceberg’ in these proceedings was that a senior officer told arresting officers precisely what forms of words to use in their statements. That led, eventually, to lawyers spotting these buzz phrases and seeing in that orchestration, foul play—statements contaminated by conspiracy or collusion.

            When in training, policemen are given the correct form of words to use when compiling their statements in given circumstances. For example, alcohol has no smell, so what you can smell on a drinker’s breath is ‘intoxicating liquor’, which does leave an odour. Using the wrong word could make an apparent liar of the writer.

            Back in the days before the roadside breathalyser, there were specific forms of words used by policemen to describe their reasonable suspicion that a suspect had been drinking to excess. These include ‘his eyes were glazed’ and ‘his speech was slurred’. To this day, American policemen use observation of these traits together with roadside sobriety tests to form their ‘probable cause’ that a suspect has been drinking. They don’t use roadside technology; you get arrested on probable cause and then hooked up to the mainframe at the police station for the actual test, which decides whether you get your car keys back or not.

            So back to Orgreave. It’s a reasonable bet that by 1984 policemen in South Yorkshire had had some training in writing reports and statements about mass public disorder. Riots were nothing new then and neither was the role of the police in containing them. In the nineteenth century, politicians complained about the quasi-military nature of the police, parading as regiments led by colonels (superintendents) to violently quell riots with a mixture of infantry and cavalry tactics. The second half of the twentieth century saw mass public disorder become the trademark of specific groups: Mods and Rockers fought in seaside towns, and football hooligans beat up the trains laid on for them to travel to away matches. An anti-Vietnam war demonstration led to a riot in Grosvenor Square in 1968. From the mid ’70s the last night of the Notting Hill Carnival generally saw a large disturbance, most often happy revellers versus the police, who wanted them to go home.

            Police solutions generally involved a very large presence, the use of the truncheons they came equipped with, and borrowed dustbin lids. The invention of the wheelie bin meant that dustbin lids were harder to come by and were last used by the Metropolitan Police in 1976, but whether that was in Lewisham or Notting Hill, we’re not sure.By the time Liverpool 8 became known as Toxteth in 1981, police riot response was a standard part of police training, particularly for their cavalry.

            Whether that training failed to extend to the buzz phrases to use in statements, or whether handing them down to use in 1984 amounted to over-egging things, we cannot know since the matter is not going to have the public scrutiny that people caught up in it at the time would like it to have. South Yorkshire Police are left with public doubt about their report writing, a doubt that has been compounded since what they wrote, didn’t write or deleted at the time of the Hillsborough disaster in 1989 has unravelled.

            Our interest in the truthfulness of police statements and reports—and the use of buzz phrases—is related to their administration of the Firearms Acts. You might remember the Home Office coined the phrase ‘shooting while jumping up and down’ to describe practical pistol, which of course it doesn’t. The best-known and least understood buzz phrase is contained in the Act itself—‘danger to public safety or the peace’.

            This phrase appears twice in the 1968 Act; it’s the sole ground for refusing (or revoking) a shot gun certificate and registration as a firearms dealer. There are other hurdles to jump to get either, as you would expect, but any correctable defect, such as not having sufficient security sorted out would or should result in the application being delayed while you make good. For dealers, the difference is that one can apply to a chief constable with the intention of having a place of business in his area. You don’t have to have the premises ready or prepared beforehand.

            The meaning of the phrase does depend on where you live. Essex Police revoked a re-enactor’s certificate last year and seized his firearms because he did not have a GP and, once he had corrected that omission, the word was that as his card was marked it was unlikely that a new certificate would be granted. And this is a chap who never held live ammunition. His firearms were just the props he uses in living history displays, so ‘danger to public safety or the peace’ in Essex means whatever they say it means. 

            So apart from him being labelled a danger to public safety or the peace, the only other people usually so dubbed are serious sex offenders, described as ‘a danger to the public’ by sentencing judges. In firearms appeals, the phrase has been the subject of quasi-judicial scrutiny from time to time, such that some parameters might be observed. A non-violent crime isn’t, according to the Spencer-Stewart case in 1988, nor is a firearms conviction; so said the High Court in 2002’s case of Shepherd v Chief Constable of Devon and Cornwall.

            Two drink drive convictions in a ten year period is, according to an Essex case, but then so is leaving a gun cabinet key with one’s aged mother so that the police can double-check that serial numbers on the guns match what was printed on the previous certificate and written on the application form.

            The ‘problem’ of members of the household who don’t have certificates having access to the guns was visited in the Devon and Cornwall case of Miss Dabek when her co-habitee applied for a shot gun certificate. He was turned down and her certificate was revoked when the police realized that she had the certificate and thus the gun at that address. This was before the ‘security’ condition appeared on shot gun certificates in 1989, although while all certificates now have that, the police can still be sniffy about any dubious member of the household that you live with.

            Recently revised Home Office guidance to police also goes the other way, so as well as the risk of not getting a certificate granted if you live with someone who has history, household members are expected to approve of your application before the chief constable looks for loopholes to enable him to get out of issuing it.

            A recent case in the north of England resulted in a confrontation between a certificate holder’s wife and a representative of the area’s thin blue line, which went exceptionally badly because the police representative used notes relating to another case for the meeting. How that meeting could take place at all without a Data Protection Act violation is a mystery; the scandal is compounded by the assertion that the police rep had also discussed the erroneous notes with neighbours, which if true could be both a crime and defamation.

            In the current ‘anything goes’ climate, what the police use as evidence at firearms appeals seems to support the view that winning the appeal is more important to them than observing the rule of law. Readers of the Shooter’s Journal will be familiar with what happened to Kevin Hunter. A prosecution failed as he had an alibi for the time of the incident; he wasn’t there. At the appeal, police suggested that the incident must have happened on a different date. At the more recent appeal, the police side started off with the view that they agreed with everything their colleagues did six years earlier, only to soften their approach to seeking the court’s permission to consider new applications when they realized what a mess the previous case had actually been.

            At an appeal last year for registration as a firearms dealer, the police opened their case by saying that it was a matter of ‘preventative justice’. Er, isn’t the only ground for refusal danger to public safety or the peace? The appellant has no convictions, so the only thing the refusal prevented was lawful trading, but never mind the fact that restraining lawful trade is an offence at common law. It gets better, or worse; but as it’s an on-going matter and it remains to be seen how much longer the police can drag it on before they are cornered. We’ll know when they are cornered, of course, because they will either issue the documents applied for, or, as so often seems to happen, they’ll turn to crime.

The European Perspective

As people who use firearms of one classification or another for recreation, the problem we have is that the policies that govern what we are allowed (or supposed) to do are dreamed up by professionals who are usually reacting to what other professionals do with firearms. Professional users are the armed forces, law enforcement, armed robbers, drug dealers and terrorists. What they do drives the agenda directed at restricting what we do in sport and leisure.

It was ever thus. In 1917, Sir Ernley Blackwell was tasked with finding ways to prevent bankrupt European governments selling their surplus weaponry to potential hotspots, such as Afghanistan and Ireland, once hostilities ceased in Europe. Blackwell was a Home Office lawyer, whose experience of firearms included the Tottenham outrage in 1909, the siege of Sydney Street in 1910 where his boss was shot at, and the Easter uprising in Ireland.

He had no international perspective to bring to the brief so he proposed strict controls of firearms in the UK instead, making it clear that his pet hate was handguns. He was not known to be a hobby shooter and aside from laying the foundations for the 1920 Firearms Act he is best remembered for the golfing trophy at St Andrews that bears his name.

The public face of the 1920 Act was as an anti-crime measure; London suffered some four armed robberies a year on average at the time. The Eastern Europeans who perpetrated the Tottenham outrage and the various murders leading up to the siege of Sydney Street brought their weapons into Britain when they came in as economic migrants, or possibly refugees. Less publicly, the government viewed the legislation as restricting firearms ownership to friends of the government.

Following the 1968 Act, the police formed a committee that was eventually approved by the Home Secretary; the result was the McKay report in 1972. This has never been published, but we saw traces of it in the 1973 green paper and the 1988 Act. A copy was placed in the House of Commons library in 1997. The proposals from this advance party for the police state were that government-owned weaponry should be destroyed rather than sold, and that reducing civilian ownership of firearms to an absolute minimum was a desirable end in itself.

That was and is the basis of the current police agenda. As to what the government’s position is, that’ll take some unpicking. David Cameron became Prime Minister in 2010. At that time, Tory grandees were of the view that he would find a way of easing the handgun ban in time for the Olympics, but that door slammed shut when Derrick Bird shot up Whitehaven, Cumbria, a few weeks later. The PM did at least shut down all the knee-jerk reactions that promptly queued up by saying that legislation would not prevent a switch flicking in someone’s head.

That didn’t stop the Home Affairs Select Committee taking another look at firearm and shot gun certificate holders. We reminded them that certificate holders have registered their firearms and shotguns—so what about the 90% of firearms in the UK that aren’t held by these authorized persons? Well, they didn’t knee-jerk anything; the eventual outcome was a measured, planned attack on legitimate firearms ownership. Two changes were made: first, ‘prohibited person’ status was extended to people who get a suspended sentence and secondly, that same prohibited person status was extended to the possession of antiques.

The concept of a ‘prohibited person’ dates from the 1920 Act. Any person sentenced to three months or more in gaol was prohibited from possessing firearms for five years from their date of release. In 1965, this was extended so that persons who were sentenced to three years or more were never released from prohibition, except by application to the Quarter Sessions. The 1969 case R v. Fordham decided that suspended sentences did not count, since the pivotal word for the start of prohibition was ‘release’. The Quarter Sessions were replaced by the Crown Courts in 1971 and the 2014 change in the law decided that suspended sentences would count hereafter.

There will doubtless be a few firearm certificate holders who catch a suspended sentence; whether natural justice allows an early application for release from it or not, time will tell, but the certificate goes in the meantime. We don’t know if Dave Lee Travis is a shooter or not, but he is currently prohibited by virtue of his suspended sentence. More significant is the extension of prohibition to the possession of antiques. The 1968 Act says nothing in it applies to antiques possessed solely as a curiosity or ornament: now, prohibition applies to said curiosities or ornaments and that’s likely to catch a lot more people—mostly well-heeled reformed people—retrospectively.

Anyone who has had a sentence of three years or more is still prohibited unless they have taken the step of applying to the Crown Court for relief. Examples may include Lord Archer (perjury) and Lester Piggott (tax evasion). 

The position in Europe is that each country has developed its own approach to firearms ownership, so many of them have restrictions that do not apply in Britain and they have them for historical reasons. France, for example, sees a difference between military ammunition and civilian; the latter being cartridges that the military don’t use and the origin of this restriction was as an anti-corruption measure. Army conscripts would have to use their ammunition up in range practice instead of selling it to civilian users of the range.

Britain’s relationship with the European Union, from when we entered the Common Market in 1973, has been strained. David Cameron has renegotiated it; as did John Major before him and Margaret Thatcher before John Major. Mrs Thatcher’s renegotiation included an opt-out from any common firearms policy, which is how she could violate the Bill of Rights by banning semi-automatic centre-fire rifles in 1988—twenty-eight years before the idea of restricting semi-autos emerged in Europe as a knee-jerk reaction to the mass emigration from Syria.

The Home Office has never shrunk from importing bad ideas with which to damage and restrain the shooting sports. Restrictions on machine guns and sound moderators came in 1936, copied from the USA’s gun control act of 1934. The difference is that Federal firearms laws in the US impose taxes: import, export and internal transfer taxes, which aren’t prohibitions.

After President Reagan was shot in 1981, the National Rifle Association gave the government a red herring to apply knee-jerk regulation to—firearms not made substantially of metal. If you read the whole of the British 1988 Act you will find that restriction in there too. In 1993 Britain adopted restrictions from Europe that prohibited expanding pistol ammunition and firearms disguised as other objects. Disguised firearms could be kept on certificates as collectors’ items and the ban on expanding pistol ammunition included an exemption for target shooting, but not for self-defence. Northern Irish permits for carry guns were then marked ‘ball ammunition only’; the police carried on using expanding pistol ammunition against the public despite the lack of an exemption for that purpose in either European or British law.  

Keeping Britain’s sovereignty over firearms controls did us—the legitimate users—no favours whatever, and the balance of probability is that any aspect of British life over which our government seeks to retain sovereignty will likewise do us no favours. Frenchmen have, for field sports, shotguns that are prohibited weapons here. That complicates the already complicated ‘visitor’s permit’ set up in 1988. Being in Europe gave the shooting sports no direct benefits, and for many years it was more complicated getting import and export licences between Britain and EU countries than it was between us and the rest of the world.

David Cameron doesn’t have to adopt knee-jerk legislation from Europe, but he will have to make a decision one way of the other before the referendum. The anti-EU lobby will also have to make their views on firearms controls clear. Neither side is going to derive much benefit from stating their positions, but at least it will open up the debate.

The restrictions and prohibitions on the types of firearms you can have in the UK at the moment mainly affect the working classes. Target rifle shooting originated in the 19th century when volunteer rifle regiments formed to counter a threat from France. It departed from the service rifle of the day about a hundred years ago, while influencing the choice of sniper rifles throughout. The availability of cheap army surplus rifles after 1945 coincided with the rise in the working classes standards of living. All the target sports benefitted from the increasing wealth of the population, as the working classes spent their money on their leisure.

Surplus service revolvers and pistols were also cheap. New repeating shotguns were much cheaper than traditional doubles, and semiautomatic rifles were cheaper than new bolt-action models. Interesting then that the restrictions on shooting all hit the lower paid citizens’ cheaper weaponry: semiautomatic rifles and repeating shotguns in 1988, handguns in 1997, air cartridge revolvers in 2003. Traditional rifle shooting with rifles and game shooting with shotguns is largely unaffected. In Europe, firearms laws have benefitted the common man’s access to the shooting sports. The contrast is stark.  

Sowing the Wind

That one of the venues for the suicide gun and bomb attacks in Paris on the 14^th November was a Cambodian restaurant brought to mind Britain’s involvement in the Vietnam War. Harold Wilson (Prime Minister 1964-70) refused American requests for British troops to help prop up the unelected South Vietnamese dictatorship, although he did not oppose the attachment of British Special Forces personnel to Australian units as they rotated through Southeast Asia; men who went to those jungles (now known as rainforests) were told they were in Cambodia. Some still wonder why the ‘Cambodians’ were so belligerent about their presence.

Vietnam was part of ‘French Indo China’ when invaded by the Japanese in 1942 and was taken by the British in the south and the Chinese in the north in 1945. Ho Chi Minh’s home rule campaign started against the French and continued against the Vichy French and Japanese with American support through WW2; he declared an independent republic following the Japanese surrender, but couldn’t get anyone outside his gang to recognize it; so he declared war on France and fought them until the French gave him victory at Dien Bien Phu and the 1954 Geneva accord gave him the north. Anyone who wasn’t a communist and could ride a bike, walk, row or swim headed south to be despotically governed by the regime America eventually bulwarked as part of their foreign policy of preventing communism spreading.

The concept of communism – holding property in common - as a social infrastructure dates back to the Stone Age, according the Karl Marx, and has been flirted with by various groups throughout history, such as the early Christians, Knights Templar and the Pilgrim Fathers. Such groups usually have had a self-appointed leader to follow. The Vietnamese got Ho Chi Minh for that, as the Chinese got Mao Zedong and, a decade later, Cubans got Fidel Castro; but whether these 20th-century guys were really paid-up card carrying members of the communist party or not (‘Che’ Guevara never was), doesn’t matter. What they all had in common was that they attracted a following and then steered their revolutions to seeing off the de facto government so that they could take their turn at being the de facto government.

They voted with their bullets; losers voted with their feet. Having taken the north, Ho continued a policy of extending his remit south, which he did not live to see. His successors did, however, and Vietnam became one country in 1975. The success of that reunification might be judged by remembering the Vietnamese boat people who sailed and rowed to Hong Kong or washed up elsewhere around the Pacific Rim to get away from it. The passage of time seems to have settled things down, making Vietnam a friendly and welcoming place to visit; safe, according to the Foreign Office, same as North Korea.

Ho would not recognize this history of his country as we describe it: he regarded the whole of Vietnam as always occupied by the Vietnamese, making his war a case of getting rid of foreign occupiers (Normans out, as Hereward the Wake might have styled it) and latterly American-backed native big cheeses who failed to see him as their leader and saviour. He didn’t carve out a Caliphate; he knew before he started where its borders would be. That made his a defensive war, which he never sought to carry beyond the natural borders of the former French Indo China. The presence of his armies in Cambodia and Laos were largely for topographical and logistic reasons.

A country’s borders tend to follow geography, which also sets the pattern of occupation as farming families expanded into clans or tribes. Later politics define (or rub up against) those natural borders; consider Rome’s northern expansion and the effect the rivers Rhine and Danube had on it, both curtailing expansion (from either side) and as a defensive line. It seems perfectly natural in the political history of our planet for strong leaders to want to expand their empires, usually to gain control of resources; the Bible records various ‘neighbours’ invading Israel/Judea, including the Jews themselves, back when it was called Canaan. Located as the western end of the ‘fertile crescent’ cradle of civilisation, it was regarded as valuable real estate.

In the Middle Ages, Saladin carved out his Caliphate in the Middle East, his territory eventually including Egypt and Syria. Western objections to his imposing himself on those territories led to the various attempts to oust him, remembered by history as crusades. Saladin followed the time-honoured trajectory of empire builders by taking much of the Fertile Crescent and expanding into the massive oasis that is the Nile valley. What made the bids to oust him different was that they were inspired by religion. His making tourism difficult for ‘infidels’ and the Popes’ missing the revenues formerly sent to them by the Christian churches of Holy Land were enough to browbeat the royal houses of Europe into doing something about it.     

A hundred years ago, most of Saladin’s caliphate (apart from Egypt) was part of the Ottoman Empire, which aligned itself with Germany in the nineteenth century and thus was invaded by Britain and her allies at Gallipoli in the Great War. That war ended with four empires in collapse, one of which was the Ottoman. A 1922 conference in Paris carved up the Middle East. That’s where British Mandatory Palestine was invented; the French had the Lebanon and Syria by the same mandate, which also created Iraq and Kuwait. 

Kurdistan was thought too small economically to be a country, although the consideration at the time was not who lived there so much as infrastructure. Geographically it’s big, but land-locked, lacking ports and navigable rivers. The carve-up put parts of it in Iran, Iraq, Syria and Turkey; none of whom has since wanted to give birth to a ‘new’ nation, although it has always been there.

Movements for independence traditionally fight defensively in their homelands. The Jewish revolts of the first and second centuries generated warfare in Judea, unless you subscribe to the theory that the great fire of Rome in AD64 was the first strike of that revolt by Jewish Christians targeting the seat of the government they hated. The IRA fought to rid Northern Ireland of British rule and from time to time they extended their campaign to bombing the mainland; they also (accidentally) invented the suicide bomber.

The new Caliphate currently being carved out in the Middle East plans on world domination, so while Ho Chi Minh didn’t bomb Paris or New York to make his point, the new Caliphs have and will.

This round of bloodshed started with the ‘Arab Spring’ in Tunisia and spread to Libya, where insurgents were soon spotted by TV crew cameras sporting mint condition British L1A1 rifles; the sort our government took off us in 1989 because it was too dangerous for us to keep them. Now we know why; suitably motivated people can use them for regime change.

Egypt had its regime change, but Syria stood firm in the face of insurgency. British L1A1 rifles did not appear there, as the Foreign Office did not know who to give them to. Opposition in and around Syria is multi-faceted; ISIS is just one of them – a successful one for psychological reasons. It’s better to be pro something than anti, so being pro a new state is better than being anti an old one. 

Thousands of people are voting with their feet, fleeing Iraq, ISIS, Syria etc. in nearly all directions. We think that’s a good idea; the Caliphate, or Syria for that matter, is nothing without the de facto government having people to rule over, as Norse invaders discovered in what became England. It’s all very well attacking the place, sacking the monasteries, stealing crops and putting people to the sword, but no point trying to settle it unless you either keep the farmers that are there to plant crops with which to feed you or bring non-warrior people with you to do that work. Failure to do so makes the invader lord of starvation, as the Pilgrim Fathers discovered that first winter near Plymouth Rock.

Our government seems to us to be tripping over itself to attack ISIS wherever they may be found, before things are right on the ground for them to do so. There are still a lot of people in the Middle East who would flee given the chance. The problem is that those who have already voted with their feet have found it dangerous or fatal doing so and the supposedly safe havens they are fleeing towards obstructive to their presence. Word of such gets back to the people who have yet to make the journey, so they are still there, having to decide between being eye witnesses to the American/British/French/Russian/etc. bombing, or possibly drowning in the Aegean after a long walk.

This could all have been handled better; the supposed free movement of people and goods in Europe doesn’t extend to outsiders, who have to sneak in under the radar and then operate their own version of Operation Stack in Calais to find a way to Britain. We were in Calais during the debacle that closed the Channel Tunnel and backed lorries up to the extent that there were ten miles of motorway hard shoulder in use for parking. The wannabe immigrants walked along the central reservation looking for likely lorries to pick on once it got dark.

One Scottish seafood company had to write off more than £100,000 of invoices because one lorry taking fresh food to the continent got caught in the jam. That comes straight off their corporation tax and that was one lorry, one day; there were tens of thousands of lorries and disruption that lasted more than thirty days.

It would have been cheaper to send a fleet of double decker buses to pick all the wannabe Brits up; next stop Kent, who wants it? That way, they’d all come in officially, making it easier to reject those who do not need asylum. It is always the case that people who are smuggled into the UK can bring stuff with them that is not welcome here: guns and bombs, VD and TB, cannabis and heroin.

What does not make sense is that, while making it difficult for Syrians to escape ISIS, Syria, etc. our Government are also making it their job to prevent people going the other way. We would much rather that those people who want to join the Caliphate are allowed – encouraged – to do so. It’s much easier to bomb them in Iraq or Syria after they have ‘come out’ as it were, than it is in England where the collateral damage would be greater, if indeed they can be identified here before doing something horrific.

Radicalization

“Radicalization” is the new buzz-word. Politicians in particular use it when trying to rationalize to themselves why British-born people might wish to leave the comfort of the United Kingdom in search of a shallow grave in the Middle East, while at the same time so many people are trying to dodge shallow graves all over the third world in favour of the comfort of the United Kingdom.

         Flying the family nest in search of adventure is nothing new; and flying the family nest for ideological reasons is not new either, from the Crusaders in the Middle Ages, to the International Brigade in the Spanish Civil War (1936-9) and any number of adventurers, privateers, soldiers of fortune and pilgrim fathers in between.

         Volunteers for the International Brigade went to support the Spanish Government of the day against an insurrection of the Spanish military. They weren’t representing their countries of origin, nor were they necessarily representing their homeland’s foreign policy. It was a case of responding to the call to arms as individual militiamen.

         That call came through the Communist Party, attracting left-wing support for a left-wing government that was too left-wing for its own military’s taste.  Support for the rebellious Spanish army in 1936 came from Germany and Italy, both of which had right-wing governments at the time, and they used the war to test new equipment and to give their frontline men combat experience. Britain’s fascists under Sir Oswald Moseley were also supporters, so the British government found its people adopting the traditional British position of supplying both sides.

         When the International Brigade was disbanded in 1939, volunteers from fascist countries were given honorary Spanish citizenship, as they could not go home. Most others went back to mixed receptions in their native countries. Several thousand Americans of all ethnic backgrounds fought in Spain. We pause to remember Oliver Law, the first African American in the history of the United States to command a racially integrated military force of his countrymen, as officer commanding the Abraham Lincoln Brigade for the last four days of his life. Returning American were labelled ‘premature anti-fascists’ by the FBI—i.e. were suspected of not being proper Americans. Those who served their country in WW2 (despite difficulties such as not getting promotions) and survived, got caught up in the McCarthy red scare afterwards, since he (more accurately his assistant Bobby Kennedy) remembered that the fight to save Spanish democracy was communist organized. Belgian and Dutch volunteers lost their citizenships for having served in a foreign army.

         British volunteers seem to have been ignored by the establishment and welcomed home by the people who appreciated their sacrifice. The welcoming committee included Walthamstow MP Clement Attlee, later a Prime Minister of the UK. Any concerns Secret Squirrel or the British right wing may have had about the 305 returnees being terrorists, or of unsound mind, intemperate habits or communist leanings were short-lived: war against Germany in 1939 saw most of them back in uniform serving under British colours.

            A mixed bag of individual odysseys, then, that painted the final panels in the history of that conflict. They have to be considered individually rather than as a pattern, since no pattern emerges, but since in a democracy it is the people who make war, governments should pay attention as to whom public opinion is supporting.

For the current conflict in the Middle East, what are we to make of the volunteers trying to get into the fight? Or out of it afterwards? They haven’t been summoned, was our first thought. We heard a radio report detailing a Syrian rebel commander’s complaints about British volunteers. His problem was that they were untrained. They didn’t speak the language, they slept too long, ate too much, and expected far more home comforts than irregular warfare in a Third-World country usually provides.

         Ideology doesn’t have much to offer, except possibly as a kick-start. British Moslems teach their children the principles of their faith through the Mosques, Islamic centres and Madrassas that they fund. British Christians do the same through churches, Sunday Schools and faith-based schools. Neither radicalizes anybody in the mainstream; that is the role of individuals who appoint themselves to do so. As an example, consider the opening scene of the movie All Quiet on the Western Front: Arnold Lucy radicalizes his classroom of young men to rush out and enlist. (Donald Pleasance was scarier but less radical in the 1979 re-make.)

         So what would yer average jihadi warlord make of British tourists wanting to join the fight?—apart from that they don’t have the language, the training, etc. Well, as in Spain, propaganda. They make a statement by their presence. No matter if the first drone to happen along kills them, as long as their accents have been recorded on someone’s mobile beforehand.

         The eventual outcome of tourist terrorism, as with tourist mercenary or tourist security work, is that those young people who survive the adventure will ‘find themselves’ (with any luck, but not necessarily, in one piece). It used to be said that there are no atheists in foxholes, and that may be true, but only of those who were trained not to be atheists. We assume that our supposedly radicalized wannabe jihadi tourists have sufficient training to draw comfort from their scriptures, but knowing when to dig in, what not to tread on and who the enemy actually is, may also come in handy. After some experience of the food, sleeping arrangements, drones, incoming fire, discipline, footwear, prayer times and travel arrangements, most will know, after a few weeks, whether they want to be in, or out.

         As to what they do next, that is largely a matter for Islamic State. Volunteers are usually committed for the duration, so there may not be an exit strategy that meets with local approval. Assuming there is a way out, the UK Government wants to have a bigger role in debriefing those returning (and presumably rejects) than they did when the International Brigade came home. First indications are that they want to emulate the American position of the late 1930s and treat any returnees as suspicious.

         Of what, is undecided; but at least some sort of debrief, even a hostile one, may help those returning make the adjustment to the comforts that the UK provides its residents, assuming that the UK government lets them in and releases them into the wild.

         Somewhat more sinister is the vague threat of preventing them leaving, since, as an arbitrary power being given to undertrained people, it could affect any or all of us wishing to take a holiday. Turkey is nice at this time of year and in 2015 will host centenary events to remember the Gallipoli campaign.

           

            

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.

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. 

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.