Brian Moss of Worthingtons Solicitors Belfast reviews developments in Firearms legislation in Northern Ireland

Recent Developments in Firearms Law in Northern Ireland
Gun ownership has always been high in Northern Ireland. Despite the move towards an increasingly urban mindset and way of life, our connection to rural living remains relatively strong. It is in rural Ireland that gun ownership is commonplace, is quintessential. For those of us living in the towns and cities, it is not something which is part of our way of life. However, for the rural man, especially the farmer, it would be entirely usual to own a firearm, and for it to be in fairly regular use. In addition to this tension of viewpoints, firearms regulation is always a controversial subject. It seems that quite often when we hear of tragic and shocking incidences of fatal shootings, the weapon used was one which was legally owned.

In Northern Ireland, the troubles have added an extra layer of concerns regarding legally-held firearms coming into the wrong hands. It is therefore unsurprising to note that firearms regulation in Northern Ireland is amongst the strictest in the world.The Firearms (Northern Ireland) Order 2004 is the prevailing legislation regarding the ownership, use and possession of firearms in Northern Ireland. The Order provides that those who are seeking to acquire a firearms certificate must be able to demonstrate that they are a fit person to hold a firearm; that they have a good reason for wanting to have one; and that they can be safely entrusted with possession of such a potentially dangerous commodity without danger to public safety or to the peace. If a person is refused a firearms certificate, or their existing certificate is revoked, or any application relating to their existing certificate is refused by the Police Service of Northern Ireland, Article 74 of the Firearms Order provides for a right of appeal.

Unlike in Great Britain, an appeal in Northern Ireland is not to a Court of law. The appeal used to lie to the Secretary of State for Northern Ireland, but since the devolution of policing and justice powers from Westminster to the local Northern Ireland Assembly, most appeals are now dealt with by the local Justice Minister, who is presently Mr David Ford MLA, the leader of the Alliance Party of Northern Ireland. In a few instances, appeals are still dealt with by the Secretary of State through the Northern Ireland Office, but this is only where there is a question of national security in play. If still dissatisfied with the outcome of an appeal to the Justice Minister (or Secretary of State), there is no further avenue of appeal available. The only option in such circumstances is if the aggrieved person had grounds to seek a judicial review, such grounds bluntly speaking being unlawfulness, unreasonableness and unfairness.

Judicial review is a procedure by which the High Court can review a decision by a public body or official, and by which it has the power to strike down (or quash) the decision under review. The Court is not acting as a court of appeal, and it cannot substitute its own view for the view of the public body or official which it is reviewing. It is therefore a relatively narrow, and supervisory power, which the Court is exercising in such circumstances. However, it is an extremely important function of the Court as it is one of the few instances in our system of government where the Court can interfere with or overrule an act or decision of the other branches of government (the executive and the legislature). It is an important example of the doctrine of the ‘separation of powers’ working in practice. It is therefore important that the Court’s power upon judicial review is not undermined or belittled so as to distract from its significance.

In the relatively recent case of Re DGD’s application [2011], the applicant for judicial review had been a firearms owner for over 20 years. A rural man, from a farming background, he was brought up in the traditions of country sports, his father being a firearms holder for 50 plus years. The applicant and his friends regularly enjoyed clay-pigeon shooting, target shooting, and wildfowl and other hunting. He also provided vermin control services for a number of local farmers and landowners. His possession of firearms was therefore inextricably linked to his identity and way of life. From the account of the facts set out in the Judgement of Mr Justice Treacy who heard the case, it is noted that the applicant had claimed that upon travelling to Scotland for a game fair with a group of friends, and his home address thereby being vacant for a period of time, he became concerned that his firearms would be at risk of theft. It seems that the applicant was an extremely security conscious individual, epitomised by him having installed a second ‘decoy’ gun cabinet at his address to deter or frustrate any potential burglar. The applicant claimed that he spoken with his local firearms officer before he went on the trip to Scotland, to inform him of the above concerns regarding the security of his guns whilst he was away. He said that he suggested to the firearms officer that he could temporarily store his guns at his father’s address whilst he was away. The applicant claimed that the firearms officer had agreed to this proposed arrangement. The applicant’s father also had a gun cabinet at his home address, being a longstanding certificate holder himself. The applicant therefore relocated his firearms to his father’s address, and placed them into storage in his father’s gun cabinet. The applicant additionally claimed that he had applied trigger and barrel locks to each of his firearms before storing same in his father’s cabinet, for added security. The applicant said that only he had the keys to the barrel and trigger locks, and that he had taken these to Scotland, so it was not possible that anyone could actually use the guns whilst he was away.

It appears from the facts of the case that upon returning home from the game fair in Scotland, the applicant collected his wife and child from his mother-in-law’s house, before returning to his home address. It seems that the applicant was having some difficulties in his marriage at the time. On the way home, the applicant called at his father’s address to pick up his guns which were stored there, but with the car already being heavy-laden with various items, the applicant advised he could not safely and securely transport all firearms at the same time. He therefore retrieved only one gun, with the intention to collect the remaining guns the next day. However, a short time after the applicant arrived back at his home address, social workers, flanked by PSNI officers, arrived at his house to claim custody of his child. It later became apparent that the applicant’s wife had made complaints that he had been violent towards her, something which he completely denies. The applicant, being keen to express to police his shock at their arrival on his doorstep, and in order to demonstrate his sincerity that he had not done anything wrong, advised police that he thought they may have been calling with reference to a variation application which he was intending to make relating to his firearms certificate, in order to purchase a gun which he had seen whilst in Scotland. Upon hearing this, the police officers determined (as is usual in difficult domestic situations) that they would need to seize all his firearms as a temporary public safety measure. Despite this clearly being ‘salt in the wound’ for the applicant, he was fully compliant and handed over to the officers the one firearm which he had with him at the house, and then went with them to his father’s house to retrieve the remainder of his guns, and handed these to the officers as well. It was always the applicant’s impression that his guns would be returned to him when his marital troubles had resolved. However, when the matter fell to be considered by PSNI firearms and explosives branch, they wrote to the applicant advising that they were concerned that he had permitted unauthorised access to his firearms, namely to his father, and that by this, and by virtue of the fact his guns were not stored at the address stated on his firearms certificate, he had breached the conditions attaching to his certificate. The PSNI later revoked his certificate, deciding that because of this, the applicant was no longer a fit person to be entrusted with a firearm. The applicant appealed to the Justice Minister. In the course of the appeal, Worthingtons Solicitors were instructed to act for the applicant and, having considered the conditions attaching to his firearms certificate, we sought to make the case that it was far from clear that the applicant had acted in breach thereof. The conditions attaching to his certificate were standard in nature and the most relevant condition seemed to be condition [5]; that when not in actual use and so forth, the guns should be kept in an approved gun safe, and that unauthorised access should be prevented so far as reasonably practicable. Strikingly, there was no specific condition that the applicant’s firearms were to be kept specifically at his home address, or the address to which the certificate related. We made representations to the Department of Justice in this regard, as well as advising of the authority the applicant had apparently obtained to relocate his firearms on a temporary basis (from his local firearms officer) and advising in strong terms of the applicant’s good intentions in relocating his guns, being to better ensure their security and safe-keeping than would otherwise have been the case had they been left in vacant premises. The Department of Justice officials recommended to the Minister that the applicant’s appeal should be allowed, but suggested that the applicant should be advised and warned that in future he should obtain written permission directly from firearms and explosives branch if he was intending to store his firearms temporarily elsewhere other than his home address.

However, the Minister refused the applicant’s appeal, stating that whatever may have been said by the local firearms officer, he was not persuaded that the applicant had done what he should have to prevent unauthorised access to his firearms, and therefore that he was not a fit person to have possession of a firearm. Being aggrieved by the decision of the Minister, we indicated to the applicant that it might be possible to seek a judicial review. The applicant instructed us to do so. In delivering his written Judgment in favour of the applicant, Mr Justice Treacy pronounced that the Minister’s decision had not been made in a procedurally fair manner. This was as a result of a letter from PSNI firearms and explosives branch to the Department of Justice, which set out their belief that the applicant had permanently stored his firearms at his father’s address, rather than this being a temporary arrangement. Mr Justice Treacy felt this materially altered the balance of fairness in the appeal, since it had changed the case that the applicant understood that he had to meet. The Judge therefore determined that the Minister’s decision could not stand.The appeal was recently reconsidered by the Minister, and has been allowed. A great result for the applicant!

There were of course a number of other points made by our instructed Barristers as regards the reasonableness of the Minister’s decision, but before examining these points and why they did not succeed in the case, it is relevant to note that procedural fairness is by no means a straightforward ground to succeed on, in the context of past judicial reviews concerning firearms appeal decisions. For instance, in Re JR20’s application [2010], Justice Weatherup adopted a common approach to complaints of procedural unfairness in firearms cases. In this case, like the majority of previous judicial reviews concerning firearms appeal decisions in Northern Ireland, the applicant’s firearms certificate had been revoked due to intelligence information suggesting that he was associated with a proscribed organisation. In common with other cases of this nature, the applicant was only given the ‘gist’ of the case against him in the course of his appeal to the Secretary of State. The applicant argued in the judicial review that it was procedurally unfair for him to have only been informed of the ‘gist’ of the case against him, as he had not been afforded full sight of any disclosure, nor of the basis of the intelligence information held against him. However, Justice Weatherup, echoing other preceding Judgments, determined that the applicant had not established that the decision of the Secretary of State was procedurally unfair just because he was not aware of the basis upon which the state believed that he had connections to a proscribed organisation. He had been offered the gist of the case, i.e. that the state held that belief, and therefore the Judge determined that no procedural unfairness had arisen, or that it was not sufficient to compromise the validity of the Secretary of State’s decision. On the other hand, in re DGD’s application, Justice Treacy concluded that the procedural fairness of the decision had been compromised. Of course, the factual basis of the case assisted the applicant, in that the state did not have any concerns about his alleged connection to an illegal organisation.

One can understand how the Courts are less than willing to reach a conclusion that delicate intelligence information must be shared with the subject of that intelligence. However, the difference between the outcome in the cases may more to do with the fact that the applicant in JR20’s application knew (to some minimal extent) the nature of the case against him, whereas the applicant in the present case was, as a result of not having seen the adverse letter from PSNI, not properly aware of the case that he had to meet. Therefore, it is difficult to conclude that the decision of Justice Treacy in DGD’s application is a momentous departure from the approach taken by the Courts in Northern Ireland in previous cases. However, it is important to mention that as we move towards a more politically ‘normal’ situation in Northern Ireland, judicial reviews involving firearms cases are bound to become less and less about intelligence information relating to an applicant’s alleged involvement with paramilitaries, or the like. As this is the case, a much more transparent appeals process should be expected by the Courts, as it will be more difficult for the state to hide behind the cloak of national security in defending a decision as being procedurally fair, if material adverse to an applicant has not been disclosed to them.

Coming back to the other grounds upon which the applicant sought judicial review in DGD’s application, Justice Treacy delivered Judgment upon these also, but did not decide these points in the applicant’s favour. These included the fact that there was no explicit condition endorsed upon the applicant’s firearms certificate to the effect that he was required to keep his firearms stored at his home address. We therefore we sought to argue that the Minister’s decision was oppressively unreasonable and disproportionate. In judicial review, it important to understand that the Court has only limited scope to review the merits of the decision under challenge. One of the few occasions when the Court can consider the merits of the decision, is when the decision is one which appears to be so unreasonable in its defiance of logic, or of accepted moral standards that it could not have been made by any sensible decision-maker. This is commonly called Wednesbury irrationality, after the case which established the principle. Obviously, the standard an applicant must reach to successfully argue such a case, is a high one. In this case, whilst Justice Treacy stated in his Judgment that the applicant’s arguments on these grounds were of considerable force, he was ultimately not persuaded to strike down the Minister’s decision on this basis. The fact that there was no specific condition as to storage on the applicant’s firearms certificate did not mean that the Minister’s decision was irrational, as far as the Judge was concerned. However, and interestingly, what the Judge did say was that a breach of certificate conditions on the part of a firearms certificate holder did not automatically mean that the holder would no longer be a fit person to possess a firearm within the terms of the Firearms Order. Justice Treacy accepted that such a conclusion would often be properly reached on this basis, but it did not inevitably follow. This arguably leaves certificate holders who have committed minor infractions with plenty of scope to argue that their certificates should not simply be revoked as a direct result thereof.

Clearly there are some interesting legal principles relating to the controls on firearms ownership in Northern Ireland, which have arisen in the cases mentioned above. Anyone who has the privilege to hold a firearms certificate should remember to always be careful to stay on the right side of their certificate conditions, as far as possible and at all times. For any legal queries relating to firearms in Northern Ireland, please contact Brian Moss or Ciaran McConnell at Worthingtons Solicitors in Belfast, who will only be too happy to provide any assistance which may be required.

All SACS members are insured for legal costs for a wide range of legal matters, so if you are a member, it shouldn’t cost you a penny to get expert legal assistance and representation.