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.