Select Committee on Northern Ireland Affairs Minutes of Evidence


Supplementary memorandum submitted by The British Association for Shooting and Conservation

COMMENTS ON THE DRAFT FIREARMS (NORTHERN IRELAND) ORDER 2002

SUMMARY

Air Weapons

  Airguns should be removed from the certification process if they fall under the muzzle energy limits set out in the Firearms (Dangerous Air Weapons) Rules 1969 (12 and six ft lbs for rifles and pistols respectively).

Shotguns

  Shotguns should be licensed as a class. The acquisition of a shotgun should not require prior individual authorisation. Certificate holders should be authorised to acquire shotguns without prior individual consent but required to notify the police immediately of all acquisitions or disposals so as to create a viable audit trail.

Young People

  There should be no minimum age limit for the properly supervised use of a firearm borrowed from the responsible adult certificate holder. The minimum age limit for a Firearm Certificate should be 14. Between 14 and 17, a certificate holder should be prohibited from buying firearms and ammunition but authorised to possess a firearm subject to conditions prescribed by the Chief Constable following consultation with the young person's parent or guardian. From 17 years, a certificate holder should be able to buy firearms and ammunition as authorised by their certificate.

Prevention of Crime

  BASC believes that Articles 52 and 62 are disproportionate as they confer too much power on the Chief Constable and this will lead to unfairness.

Firearms Licensing

  The Northern Ireland Office, not the Chief Constable, should design application forms. The language of the Draft Order as it relates to the issue of certificates should be changed from "may" to "shall" so as to create a qualified right to possess firearms. The term "good reason" should be interpreted as per its natural meaning and not in an artificial or restrictive manner. The requirement of a certificate holder to demonstrate "competence" prior to the grant of a certificate is disproportionate, problematic and fraught with consequences that remain both un-addressed and unresolved. Conditions on certificates should be the exception rather than the rule. Certificates should be valid for five years rather than three. The right of appeal to the courts is welcomed but the use of lay advocates should also be considered.

Prohibited Weapons

  BASC welcomes the retention of pistols for target shooting. The entire article should be reviewed to see if prohibited status remains applicable for all the firearms within it.

  BASC believes that the Draft Order is needlessly restrictive and that the improving political and security situations in Northern Ireland do not justify it. The PSNI will still be subjected to a heavy administrative burden that represents an unjustified cost to taxpayers and certificate holders. No evidence is advanced to show that public safety would be enhanced.

AIR WEAPONS

  1.  The Draft Order proposes to continue the requirement for all air guns capable of lethal performance (with muzzle energy levels over 1 joule (0.373 ft lb) to remain within the certification system. BASC believes that this is disproportionate, and that the NIO is missing the opportunity to reduce a costly administrative burden for the PSNI and draw on the advantages to safety and recreational opportunity that would flow from a less restrictive regime that would, moreover, be consistent with the rest of the UK.

  2.  To that end BASC suggests that the muzzle energy levels as defined by the Firearms (Dangerous Air Weapons) Regulations 1969 should be adopted in Northern Ireland. These are 12 ft. lbs for air rifles and 6ft 1bs for pistols (16.66 and 8.33 J respectively). In the case of air rifles this level allows for both humane pest control and competitive target shooting. The limit for pistols also accommodates that which is required for competitive target shooting. It is to be noted that the air rifle limit is 10 times less than the muzzle energy of the smallest commercially available powder-burning cartridge, the .22 LR. Treating such air guns in the same way as more powerful firearms using cartridges is unjustified and unjustifiable.

  3.  There is an acknowledged problem of air weapon misuse in other parts of the UK caused mainly by a relatively small number of young people in urban areas. Viewed against the perspective of the four to six million air weapons in private hands the level of abuse is tiny. This problem arises, moreover, notwithstanding stringent legislation on the possession and use of air weapons by young people. This has been the subject of considerable media hyperbole and, being the product of local circumstances, does not invalidate our view that young people, recreational opportunity and wise use of police resources in Northern Ireland would all be well served by the change we advocate.

  4.  If it is felt that the removal of air weapons from the licensing system is too radical, then it would be appropriate to consider a system of "notification after acquisition" within the current certification system. This would allow a certificate holder to acquire air weapons without prior authorisation but would require him to account for them by means of a statutory duty to notify the police immediately. If this were to be implemented it would benefit the PSNI in terms of reduced administration, the shooting community and the gun trade by removal of a disproportionate restriction. Any such change should be reviewed after a suitable period of time.

  5.  The proposal to remove air gun pellets from the licensing regime is welcome and long overdue[4]

SHOTGUNS

  6.  BASC is disappointed that the Draft Order does not propose a similar licensing regime for shotguns to that which applies in the rest of the UK. This is a missed opportunity to improve consistency.

  7.  The Great Britain system is acknowledged as being remarkably efficient because it concentrates police enquiries on the suitability or fittedness of the applicant. It ensures that licensing does not become distracted by complicating factors such as the different ballistic capabilities of individual firearms—as happens with Section 1 firearms such as sporting rifles. If an individual is judged to be suitable to possess a class of firearm the only constraint should be that of ensuring proper security at all times. Excessive acquisition such as might be judged to represent a threat to public safety or the peace is prevented by the requirement to notify all acquisitions immediately and periodic review at renewal.

  8.  Inherent to the success of such a system is the statutory duty to inform the police of every transaction—acquisition or disposal—involving a shotgun. The only exception to this would be a loan between certificate holders for a short period of time.

  9.  The most recent report of the Firearms Consultative Committee noted that, "Police members agreed that there was no evidence of a significant problem of shotgun misuse and accepted that any regulation must be proportional."[5]

  10.  BASC is unaware of any evidence of misuse of shotguns by certificate holders in Northern Ireland and suggests that the same regime as prevails in Great Britain should replace the current system. This would release the PSNI from a considerable administrative burden and would be a welcome concession to the shooting community. There would be no need to issue a separate certificate for shotguns under this system, as is the case in Great Britain. The form of the current certificate could be altered to allow the acquisition of shotguns as a class rather than individually. Again this would represent a reduction in administrative burden.


  11.  Shotgun ammunition should also be treated in the same way as it is in Great Britain[6] ie not subject to limits for acquisition on the certificate. It is impossible to run any meaningful check on the acquisition and use of shotgun cartridges by means of a limit set on a certificate.

  12.  The principle of differentiating between firearms subject to prior authorisation from those subject to notification after acquisition is well established in British law. It is also common in other countries and forms a major part of the EC Weapons Directive[7].

  13.  Adoption of this system as it relates to shotguns in Northern Ireland would bring benefit to the PSNI and the shooting community without any adverse effects for the wider public safety. It would improve consistency with the rest of the UK and reduce inconsistency with single market rules.

YOUNG PEOPLE AND AGE LIMITS

  14.  Article 7(1) of the Draft Order precludes the grant of an FAC to any person under 18. Thereafter, there are a number of complicated and restrictive exemptions for young people between 16-18 years.

  15.  The concept of a minimum "no touch" age for firearms use—even under supervision—is not widely supported and owes much to the scare tactics of anti-gun lobby groups. The government in its response to the Home Affairs Committee's Report rejected it[8]. The then Home Office Minister said "The Government's main interest is to protect public safety and we do not believe that a ban on supervised shooting by young people would improve this". He continued, "We would wish to encourage the responsible attitude of responsible parents and shooting organisations in teaching young people a safe and responsible attitude to firearms handling. As with many other issues, we believe that this is one on which parents should decide the age at which their children take up shooting sports."

  16.  The Home Office's view is that it is sensible for young people who want to shoot to have properly supervised access to firearms. "It is in the interests of safety that a young person who is to handle firearms should be properly taught at a relatively early age.[9]"

  17.  In the light of considerable experience and careful consultation over many years BASC strongly advocates a progressive and step-wise approach. This must both allow opportunity and ensure supervision. We are of the view that the minimum age for the grant of a certificate should be 14. Prior to this a young person would only be able to use a gun belonging to a certificate holder aged over 21, under the certificate holder's supervision, and on land where the certificate holder has permission to be—a duty of care attaching itself to the supervisor of the young person.

  Between 14 and 17, a young person should be granted a certificate if he or she satisfies the usual criteria for grant. The certificate should be tailored individually in the light of the interview that is carried out by the police prior to grant, to take account of the young person's needs and circumstances. Conditions should be made on the certificate that specify special requirements and underline the holder's responsibilities. The general form and extent of the conditions should be agreed after consulting shooting associations whilst the individual certificate should be a matter for discussion between the PSNI and the young person's parents or guardian. On attaining 17 years, BASC believes that a person should be eligible to apply for a certificate that authorises them to buy firearms and ammunition as may be authorised on the certificate.

  18.  The proposal in the Draft Order denies young people the opportunity to receive proper training in the use of firearms until they are 16. No justification is offered to sustain this age limit and it appears to be arbitrarily chosen. The consequences of this militate against public safety. There is a strong body of opinion that says that it is desirable for young people to learn safe firearms use at an early age, rather than later their teens. There is no evidence whatsoever that shows that the supervised use of firearms by under 16s has any detrimental affects on public safety.

  19.  By way of further emphasis, there are a number of young people elsewhere in the UK who have reached a high level in competitive shooting. Charlotte Kerwood (15) recently won a Gold Medal in the Commonwealth Games for clay shooting. In 2001, two members of the National Smallbore Rifle Association GB Junior squad were 14. The Clay Pigeon Shooting Association International Junior team has one boy of 14, two of 15 and some of 16 and 17. These talented youngsters are the tip of a pyramid of excellence and it is sad that narrow-mindedness in Northern Ireland should continue to stand in the way of similarly inclined enthusiasts.

  20.  Achievements such as this do not come overnight and all of these talented young people will have started to shoot at an early age. Northern Ireland would not be able to produce such young stars as this if the provisions in the Draft Order become law.

  21.  It seems entirely unreasonable that young people in Northern Ireland should be so disadvantaged and discriminated against particularly when no evidence has been advanced by the NIO to show that young people shooting under proper supervision constitutes a danger to public safety.

PREVENTION OF CRIME AND PRESERVATION OF PUBLIC SAFETY

  22.  Article 52 of the Draft Order provides for the Chief Constable to require an FAC holder to submit any lawfully held firearm for ballistic testing. BASC believes that as it stands, this confers too much power to the Chief Constable. If a lawfully owned firearm is to be taken for testing, the period for which the police may retain it should be defined by law, say seven days. Equally, there should be the right for the FAC holder to appeal to the courts against the Chief Constable's notice. In such cases, the Chief Constable should be required to prove to the court's satisfaction that he has good reason for conducting the test. The Chief Constable must be liable for any damage caused to the firearm during the test and should be responsible for returning it to the FAC holder.

  23.  Article 59(2) creates the offence of discharging a firearm on or near a road or on church premises without lawful authority or reasonable excuse. This requires a careful definition of "road" and persons who have or might acquire lawful authority or reasonable excuse to shoot on one. In view of the fact that many rural properties on which shooting takes place are criss-crossed by roads, tracks and byways, we believe that this is no small matter to be glossed over. It represents a potential source of aggravation and uncertainty for legitimate land users. For pressing reasons of practicality, the offence should only arise in the event of dangerous or obstructive behaviour. It should be an offence to shoot in the vicinity of a public road if as the result a passer-by is injured, interrupted or endangered[10]. In any case, someone who shoots on a road is probably a trespasser and would not only commit an offence under Article 60 but probably be in breach of the conditions of their certificate.

  24.  Article 62 creates the offence of possession of a firearm in suspicious circumstances: but suspicious in whose opinion? The provisions of this Article are so broadly drafted so as to be potentially dangerous for civil liberties. The burden of proof falls on the person with the firearm to show that what he or she was doing was not suspicious. We know that in other parts of the UK the police receive a significant number of call-outs as the result of members of the public seeing "a man with a gun" in circumstances that strike them as "suspicious". In the overwhelming majority of cases the call-out turns out to be a false alarm. The police would only need to establish "reasonable suspicion" to being a prosecution. Conversely, the defendant is not afforded the normal defence of "lawful authority or reasonable excuse". It would be possible for a person to be convicted under this Article without having actually done anything unlawful. The Draft Order contains a number of measures to preserve public safety and the Chief Constable has wide ranging discretion to revoke certificates. Article 62 is disproportionate to any identified problem and could be used in an oppressive way.

FIREARMS LICENSING ISSUES

25.  Article 2

  The definition of a component part of a firearm is needlessly complicated and could be changed with advantage to refer to any part of a firearm which bears the pressure of the discharge. A magazine for a firearm is not a component part, as the firearm will still function without a magazine. In Great Britain magazines are freely sold and have never been regarded as a component part.

26.  Article 4

  This deals with the application and allows the Chief Constable to design his own forms. The application forms and associated documents eg FACs etc should be officially prescribed by the NIO. A working party should be set up composed of all interested parties to produce a form that has a broad based ownership, including input from the shooting community. The Order should state that applications must be made "in the prescribed form".

  The same principle applies to the forms for referees. Particularly, (7)(b)(iv) affords the Chief Constable too much discretion in the information that he might reasonably require from a referee. The information provided by a referee should be officially prescribed and not left up to the police to decide upon.

  It might be advantageous if the lessons learnt from the impending review of referees in Great Britain were incorporated into the Order.

27.  Article 5(1)

  The language here is significantly different from Great Britain's Firearms Acts in that it says that the Chief Constable "may" grant a certificate rather than "shall" grant a certificate. This creates a qualified right to a certificate providing that certain criteria are met. The word "may" creates no such right and affords the Chief Constable a degree of almost unfettered discretion. The difference between "shall" and "may" is not mere semantics and needs to be viewed in terms of burden of proof. Throughout the Draft Order there is ample discretion afforded to the Chief Constable who "has to be satisfied" about many criteria. BASC suggests that the word "shall" should be used throughout the Order in relation to the grant of FACs or other authorities.

28.  Article 5(2)(b)

  Guidance needs to be issued to the PSNI about the interpretation of "good reason". In the past, this has been interpreted in an overly restrictive manner and has been equated with reasons that are acceptable to the Chief Constable. BASC is aware of applications refused by the RUC on the grounds that the applicant did not have "enough good reason". The sensible comments about good reason in Chapter 13 of the Home Office Guidance should be imported into the PSNI's standard operating procedures.

29.  Article 5(2)(c)

  BASC is pleased that the NIO has moved away from its original position of requiring training/testing as a pre-requisite for the grant of a certificate. However, the requirement for an applicant to satisfy the Chief Constable as to his or her competence raises a number of difficult issues.

  By what mechanism could the Chief Constable determine competence? If he was initially satisfied as to an individual's competence and it was subsequently shown that his method of determining competence was flawed would he then be liable in law in the event that the certificate holder caused damage, injury or death?

  30.  The word competent is inappropriate in any case. A better test would be that of whether the applicant is safe with a firearm. The requirement for the Chief Constable to be satisfied as to competence appears to be disproportionate given the excellent safety record of certificate holders in Northern Ireland. This is recognised at para seven in the Explanatory Document issued with the Draft Order.

  Shooting sports throughout the UK have an enviable record of self-regulation. The incidence of accidents or injuries is very small. It is very much better than many European countries that have extensive and complex testing regimes in place. In any case, the need for testing in other countries is the result of the special kinds of shooting that takes place there, especially driven big game shooting (wild boar for example). This does not happen in Northern Ireland. For example, during the 1997-98 hunting season in France there were 224 accidents where injury was caused. Of these, 75 injuries were light, 104 serious and 45 were fatal. France requires hunters to undergo a mandatory test prior to the grant of a hunting licence.

  31.  Given that the UK's firearms safety record is so good, it seems disproportionate to include anything within the criteria for the grant of a certificate that would inevitably lead to some form of de-factor testing. All areas within the shooting community operate an informal but efficient regime that ensures that certificate holders behave in a responsible and safe manner. Article 5(1) already includes a requirement for the Chief Constable to be satisfied that an applicant can be permitted to possess a firearm without danger to public safety or to the peace. This is sufficient to weed out those small numbers of individuals who may present as being potentially dangerous when they are interviewed. If the Chief Constable finds that an individual has no history of firearms handling and is not a part of any community where informal training can be given—eg a club or shooting syndicate—then he might reasonably decline to be satisfied on the public safety issue until some form of training has been undertaken.

  32.  Currently, there is no infrastructure within Northern Ireland to provide firearms safety training in the volume that would be necessary if the competence requirement was to be included. However the provisions at para 12 in Schedule 1 whereby no certificate is needed to possess a firearm and ammunition whilst undergoing instruction is useful.

  33.  There is no evidence to show that a statutory requirement to satisfy the Chief Constable as to competence would bring any improvement to public safety given the existing high standards that have been achieved by informal means.

34.  Article 6

  One of the major areas of contention in Great Britain is the imposition of non-statutory conditions on Firearm Certificates. The language of the Firearms Act 1968 infers that conditions should be the exception rather than the rule. However, over the last 20 years a variety of conditions are routinely imposed. Chief Officers may impose no conditions on Shotgun Certificate holders. The language of the Draft Order should be modified to state that condition should only be imposed in exceptional circumstances and not routinely. Also, Guidance should be issues by the NIO—after proper consultation—to set out the circumstances when conditions might be imposed.

  35.  As a general principle, conditions should not prevent a certificate holder from pursuing any lawful activity or from shooting any lawful quarry. It is difficult to envisage circumstances where conditions should be imposed upon the use of shotguns and air rifles. They should not modify that which is lawful by mere administrative practice. Once good reason has been satisfied for a particular firearm, any other lawful use should not be restricted unless there are good reasons to do so. The provision of the right of appeal against conditions is welcome.

36.  Article 8

The increase in certificate life from three to five years is welcome.

37.  Article 68

The provision of a right of appeal to the county court is welcome. However, the placing of Article 68 appeals outside of the Legal Aid system may contravene Article 6 of the European Convention of Human Rights. It is likely that the cost of an appeal will be outside of the means of some certificate holders. However, the Chief Constable will have many resources at his disposal and will be represented by both solicitor and counsel. This denies the appellant a "fair trial" in a matter concerning his civil rights. Consideration should also be given to an intermediate tribunal system to hear cases without the need to go to law. Such a system operates in the State of Victoria in Australia and has proven to be an effective form of alternative dispute resolution.

  38.  On the matter of costs, BASC believes that the court should have no power to make orders for costs in Section 68 appeals. Also, the possibility of either side being represented by lay advocates should be explored. This would allow cases to be heard using licensing staff and representatives from shooting organisations. This would reduce legal costs across the board and would give greater access to justice.

PROHIBITED WEAPONS—ARTICLE 46

  39.  BASC is pleased to note that pistols are not included in Article 46 and that target pistol shooting will continue to be legal in Northern Ireland. The same comments apply for expanding ammunition used for hunting.

  Article 46 is based on Section 5 of the Firearms Act 1968. This section has grown on an ad hoc basis, largely as a result of hasty legislation brought in after an outrage. On that basis, Article 46 ought to be reviewed to see if certain categories of firearm should continue to remain within the prohibited category. In particular self-loading rifles other than .22RF have legitimate uses in sporting shooting.

CONCLUSION

  40.  The goal of the NIO's review of the Firearms Order is set out in para 1 of the Explanatory Document. It was to assess whether the Firearms Order was relevant, effective and proportionate and whether it struck the correct balance between the level of public safety demanded by modern society and the reasonable expectations of the shooting community and firearms trade. In BASC's opinion, the Draft Order fails the test of proportionality and balance. There is no evidence to suggest that public safety would be compromised if the provisions for air guns, shotguns and age limits for shooting as outlined in this paper were adopted.

  41.  The Draft Order is needlessly restrictive of peoples freedom, continues unnecessarily costly and inefficient practices that have to be paid for by certificate holders and tax payers, wastes police time, fails young people, and raises more questions than it answers.

  42.  If the order proceeds in its current form, ordinary people in Northern Ireland who wish to own firearms for legitimate purposes will be subjected to firearms legislation that is the most restrictive in Europe and makes little or no effort to move towards consistency within the single market. It lacks evidence that what it proposes will improve public safety. ON that basis, the Draft Order appears to be a wasted opportunity to make changes in firearms controls which recognise improvements in Northern Ireland's political circumstances.

9 October 2002



4   Schedule 1, para 9(4). Back

5   Firearms Consultative Committee 11th Annual Report 19 March 2002. Para 5.32. Back

6   No authority is required to possess shotgun cartridges which contain five or more shot none of which exceeds .360" (9.1 mm) diameter. (Firearms Act 1968, Section 1(4)(a). Back

7   EC Directive 91/477/EEC. Back

8   The Government Reply to the Second Report from the Home Affairs Committee Session 1999-2000 Cm 4864. Para (dd). Back

9   Firearms Law-Guidance to the Police 2002. The Stationery Office. Para 7.7. Back

10   As per the provisions of Section 161(1) of the Highways Act 1980. Back


 
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