CA response to Law Commission's Consultation...
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about this blogRead moreCountryside Alliance Response to the Law Commission's consultation: Firearms Law – A Scoping Consultation Paper
Introduction
The Countryside Alliance welcomes the opportunity to respond to the Law Commission's consultation on Firearms Law. The Countryside Alliance is a campaigning organisation covering the whole of the United Kingdom, whose aim is to promote the countryside, country sports and support the livelihood of rural people and their communities. As a membership organisation with over 105,000 individual members and more than 250,000 affiliated members, many of whom own and use firearms both for recreational and professional use, we reflect the views and concerns of a broad range of rural people.
Countryside Alliance response to the provisional proposals and consultation questions
Provisional proposal 1
9.1 The meaning of lethal should be set by reference to a fixed muzzle kinetic energy.
Do consultees agree?
We support the principle that kinetic energy should be used to define what is, and what is not, a firearm. Although a simple check on muzzle energy may be made with a chronograph, we are, however, conscious that accurate measurement requires complex equipment which is not widely available. There may therefore be some benefit in establishing an agreed protocol or procedure for the measurement of muzzle energy of a projectile.
Consultation question 1
9.2 What should the lethality threshold be?
- c) 5 joules for single shot and 1.3 joules for fully automatic weapons; or
- d) 1 joule.
We believe that there should be a single threshold figure, and we do not therefore support option (c) above. Nor are we confident that the 1 joule figure was anything more than an arbitrary suggestion on the part of the FCC. The 'lethality' threshold should reflect the best science available. Given that the Forensic Science Service indicated that a level of 2.2 foot pounds (2.983 joules) is capable of perforating human skin, and whilst accepting that the 1 joule threshold is incorporated in Scottish law, we believe the 'correct' figure should lie between 2 and 4 joules.
Consultation question 2
9.3 If the threshold of lethality was set at 1 joule would it have a disproportionate impact upon the legitimate trade in air weapons?
We do not believe that a lethality threshold set at this level would affect the air weapons industry. However, it would certainly affect the airsoft trade and the recreational use of airsoft weapons.
Consultation question 3
9.4 If the threshold of lethality was set at 1 joule should there be a specific exemption for the airsoft trade, similar to that already contained within the Violent Crime Reduction Act 2006?
If the lethality level were to be set at this figure, then specific exemptions would be required to permit the recreational use of airsoft weapons and, in particular, airsoft skirmishing.
Provisional proposal 2
9.5 To maximise clarity and certainty, the FCC's modified list of component parts should be enshrined in law, namely:
(1) the barrel, chamber, cylinder;
(2) the frame, body or receivers upper and lower where present in the complete firearm;
(3) the breech, block, bolt or other mechanism for containing the charge at the rear of the chamber; and
We agree that there should be a legal definition of 'component parts' which are pressure bearing. It is clear that neither the chamber nor the breech are 'parts'. These are merely voids into which ammunition may be inserted. We think that the proposal means at 3 'the breech block', and with this clarification we accept within the definition of 'component parts' the barrel, cylinder, frame, body or receivers upper and lower, breech block, bolt or other mechanism for containing the charge at the rear of the chamber.
We note that there has been discussion about the stage of the manufacturing process at which a 'part' becomes a 'component part'. Our suggestion is that a part becomes a component part of a firearm when that firearm is proved as being capable of bearing pressure and marked as such by a proof house.
Provisional proposal 3
9.6 We provisionally propose the Secretary of State is given the power to amend the list by way of order.
Do consultees agree?
If such powers were to be given to the Secretary of State, then any amendments would in our view need to be restricted to those required as a result of technological change or development.
Provisional proposal 4
9.7 We provisionally propose that as a matter of law a component part will remain such so long as it is capable of fulfilling its intended function as part of a firearm.
Do consultees agree?
Yes
Consultation question 4
9.8 Do consultees have a view on whether the component parts of a shotgun should be subject to control? If so in what terms?
We do not believe that the component parts of a Section 2 shotgun should be subject to control, as there is no evidence the current position poses any risk to public safety. Many shotgun owners possess spare barrels, locks and other parts which may be used in the case of malfunction. New shotguns may be supplied with such parts. Controlling these items would amount to retrospective legislation which could inadvertently criminalise existing shotgun owners.
Provisional proposal 5
9.9 The failure to define antique firearm is a significant omission which causes problems in practice and therefore it is necessary to provide a set of statutory criteria for determining which firearms can benefit from the exemption in section 58(2).
Do consultees agree?
We agree that a definition is required in order that all parties can know where they stand.
Provisional proposal 6
9.10 The deciding factor for determining which firearms can benefit from the exemption in section 58(2) ought to be functionality.
Do consultees agree?
We do not agree. Most antique firearms held under 58(2) are capable of functioning.
Consultation question 5
9.11 We would welcome consultees' views on the following options for a criterion to determine which firearms benefit from a new obsolescence exemption:
(1) obsolete cartridge list;
(2) modern cartridge list (Canadian);
(3) year of manufacture conclusive of functionality; or
(4) antique firearm mechanism.
We agree option 1, which has stood the test of time, and agree that there is a good case also for option 2. These two options are not mutually exclusive and could exist alongside each other. We oppose option 3, since it can be difficult or impossible to establish the exact date of manufacture. We agree option 4 insofar as it relates to obsolete ignition systems such as matchlock, flintlock, percussion, pinfire, needle fire, capping breechloader etc. We feel that there is a strong case for including recently made reproduction firearms of obsolete ignition systems within this category so that they too may be held under 58(2).
Provisional proposal 7
9.12 Any purchase of an antique firearm must be paid for by cheque or electronic funds transfer.
Do consultees agree?
We disagree. While dealers, auctioneers etc. might be expected to retain records of transactions, private individuals could not, and thus transfers between private individuals would remain unrecorded, negating any possible benefit that might otherwise be derived from this proposed reform. Nor do we feel that the parallel between dealers receiving scrap metal and buyers and sellers transferring antique firearms is well made.
Provisional proposal 8
9.13 Any sale of an antique firearm must be recorded. Do consultees agree?
Our comments at 9.12 above apply
Provisional proposal 9
9.14 The offences in sections 16-25 ought to be amended to put beyond doubt that they can be committed by someone in possession of an antique firearm.
Do consultees agree?
We agree that there is a case for amending the offences in Sections 16A, 17 and 18 so as specifically to include antique firearms. We are not persuaded that there is a sufficiently strong case in respect of Sections 19-25.
Provisional proposal 10
9.15 The statute or regulation should state expressly that only firearms that have been certified by one of the Proof Houses as being deactivated to a Home Office approved standard ought to be categorised as 'deactivated firearms' and therefore capable of being possessed without any form of control. A mechanism would need to be inserted to enable the Proof Houses to certify that a firearm that has not been deactivated to a Home Office approved standard is nevertheless irreversibly incapable of discharging a projectile, because of corrosion, for example.
Do consultees agree?
The proposal contained in the first sentence at 9.15 would amount to retrospective legislation in respect of firearms which are currently held on the evidential basis that they comply with the definition given at S38(7) of the VCR Act 2006. We do not support a proposal which amounts to retrospective upgrading, since this will potentially criminalise large numbers of owners of what are currently regarded in law as deactivated firearms.
We are furthermore concerned by the implication that evidence of deactivation is dependent upon the presence of marks applied by one of the two Proof Houses and a certificate of deactivation. During the long life of a deactivated firearm, a certificate may easily become parted from the firearm to which it relates, just as the guarantee certificate or instruction book supplied with a household tool or appliance will almost inevitably become parted from it at some point. Marks or serial numbers applied to the product do not go astray, just as proof marks applied by Proof Houses to firearms do not become detached from them. Thus they provide much more enduring evidence than paper certificates.
It may be noted that under S8 of the Firearms (Amendment) Act 1988 a firearm shall be presumed, unless the contrary is shown, to be deactivated if:
- It bears a mark made by one of the two companies mentioned in section 58(1) (i.e. the two Proof Houses) or by such other person as may be approved by the Secretary of State for the purposes of this section; and
- that company or person has certified in writing that the work has been carried out on the firearm in a manner approved etc. (our emphasis)
The Act does not require the issuing of any certificate that must be carried by a person possessing the deactivated firearm or offered up in evidence of its deactivation. Our contention is that by making a mark in a ledger or entering a record onto a database the company has certified in writing its approval, irrespective of whether a certificate has been issued, and that the ledger or database may be interrogated if evidence of deactivation demonstrated by a proof mark requires corroboration.
Finally, given the interest of the European Commission in this matter and the possibility of amendment to the European Firearms Directive to provide common minimum standards of deactivation, there appears to us to be scope for recognition in the UK of evidence of deactivation applied by Proof Houses of other CIP member states that are operating to new EU deactivation standards.
Consultation question 6
9.16 Based upon the assumption that the preceding question is answered in the affirmative, do consultees have a view on which of these three methods would be more appropriate?
- Amending the definition of 'deactivated firearm' in section 38(7) of the Violent Crime Reduction Act 2006;
- Using the Secretary of State's regulation making power in section 39 of the Violent Crime Reduction Act 2006; or
- Amending section 8 of the Firearms (Amendment) Act 1988.
We disagree with proposals 1 and 2. We agree that proposal 3 would be most appropriate.
Provisional proposal 11
9.17 Where a person attempts to reactivate a firearm that was deactivated to a Home Office approved standard, we provisionally propose that as a matter of law that weapon should no longer be presumed to be deactivated and take advantage of the presumption.
Do consultees agree?
We believe that the matter should hinge upon the intention of the person working on the firearm. Thus a person may clean, repair or carry out restoration work on a deactivated firearm without any intention of reactivating it. Attempted reactivation should in our view include both physical evidence of the attempt, along with evidence of an intention to reactivate.
Provisional proposal 12
9.18 We provisionally propose the amendment of section 4(3) to put beyond doubt that the offence can also be committed by someone who makes amendments to a deactivated firearm with the intention of rendering it capable of discharging a missile.
Do consultees agree?
In general we agree, but it should be noted that an RFD may potentially be called upon to reactivate a deactivated firearm for legitimate purposes, such as exhibition at a museum or in a collection, and that this eventuality should be allowed for.
Provisional proposal 13
9.19 We provisionally propose the law be amended to focus on the availability of the tools necessary to convert an imitation firearm into a live firearm.
Do consultees agree?
We believe that the deciding factor is that of criminal intent. Thus 'intent' must clearly and unambiguously be engaged before an offence is triggered
Provisional proposal 14
9.20 We provisionally propose the creation of an offence of being in possession of articles with the intention of using them unlawfully to convert imitation firearms into live firearms.
Do consultees agree?
We disagree.
Provisional proposal 15
9.21 We provisionally propose that the current law governing firearms in England and Wales is of such complexity that it is necessary for the Law Commission to undertake a wider reform project to codify the law.
Do consultees agree?
Given the clear need to alter the legislation for the purposes outlined at 7.6 and the inability of simple consolidation to deliver such alterations, we support a wider reform project to codify the law.
Our view, however, is that licensing is an administrative task which, although grounded in legislation, must retain considerable operational flexibility. This is currently achieved by reference to the Guide on Firearms Licensing Law which has shown itself to be capable of being regularly updated in a fair and equitable manner. We therefore believe that the licensing process should remain out with any codification project. Thus we support the alternative at 7.17(2)
We are acutely aware of the fact that the consultation applies only to England and Wales, but that firearms legislation applies also to Scotland. We would urge the Commission to engage with its Scottish counterpart over proposals for reform, so that any new code of law would apply, then as now, to the whole of Great Britain.
Consultation question 7
9.22 Do consultees have any examples of the additional and unnecessary costs or any dangers to the public that are attributable to the defects with the current law governing the acquisition and possession of firearms?
We have previously outlined a number of areas in which we believe the current law to be unnecessarily bureaucratic, and where reform could reduce excess administration without danger to the public.
Particular reforms which would simplify the administration of firearms legislation are:
Banding
If a certificate holder wishes to dispose of one firearm and acquire a similar or even an identical one, he currently needs a variation to his firearm certificate. We strongly recommend a 'banding' system whereby a certificate holder with authority to possess a firearm in a particular 'band' or category may dispose of it and acquire a replacement without need for variation. Both the disposal and the acquisition would still need to be notified to the police, so there is no loss of control, but the requirement for a variation would cease provided that the number of firearms authorised within a particular band was not exceeded. It may be noted that after much discussion, this system has recently been introduced within the Northern Ireland jurisdiction.
Expanding ammunition
The Commission has noted that expanding ammunition was 'prohibited' by the 1997 Act, and yet is widely required for all forms of live quarry shooting and is mandated by the Deer Act 1991 and the Deer (Firearms etc)(Scotland) Order 1985. Thus the police are required to append an additional condition to the certificates of quarry shooters to enable them to possess expanding ammunition or expanding missiles for reloading. It is generally agreed, both by shooters and the police, that the prohibition at S10 of the Firearms (Amendment) Act 1997 Act is unnecessary and that it does not serve to increase public safety. We urge that the prohibition on expanding ammunition be repealed and that it be transferred from S5 back to S1.
Sound moderators
When the current legislation was framed, possession of sound moderators was exceptional. That is no longer the case, due substantially to modern health and safety requirements. Today, sound moderators for both centre fire and rimfire rifles are essentially available on demand by certificate holders authorised to possess those firearms.
The fact that a moderator is regarded as a 'firearm' means that the full regulatory regime applies when a moderator is acquired, disposed of and exchanged, albeit that a sound moderator is no more than an inert tube.
It follows that since a moderator is regarded in law as a 'firearm', published firearms statistics include sound moderators, and thus records of the numbers of 'firearms' possessed by certificate holders may be inflated by a factor of up to two.
The weakness of the argument for control of sound moderators may additionally be highlighted by the fact that moderators can potentially change status between S1 and unrestricted. The reason for this is that a moderator takes its designation from the firearm to which it is affixed. Moderators used for rimfire rifles and sub-12 foot pound air rifles may be identical, thus a certificate holder who wishes to transfer a S1 moderator from his rimfire to his air rifle may quite lawfully request that it be removed from his certificate.
We believe that a review of firearms law provides the opportunity for legislation to catch up with current accepted practice regarding sound moderators. Given that a moderator without a rifle presents no risk to public safety, we do not believe that these items should continue to be treated as firearms for licensing purposes.
Extension of certificate life
Continuous intelligence-led monitoring of certificate holders by the police using technology that did not exist when the present law was framed means that in many cases a five year renewal cycle is unnecessary. We question, for example, the point of processing every five years the renewal of a certificate holder of known good character who continues to hold, say, the same shotgun in the same security cabinet at the same address. We believe that current technology would enable certificate life to be increased to 10 years without any loss of public safety. We especially urge the extension of RFD certificate life from its current 3 years.
Surrender to RFDs
We note the Commission's comments at 8.49-8.52. We are particularly aware of the concerns amongst RFDs over taking possession of S5 firearms and ammunition. It is our view that the law requires clarification in order to ensure that RFDs are properly protected when they perform this service.
Visitors Permits
The Visitors Permit was established under S17 of the Firearms (Amendment) Act 1988 to enable police in Great Britain to vet the bona fides of visitors wishing to visit this country with a firearm or shotgun. The system of Visitors Permits thus predates the introduction of the European Firearms Directive 91/477/EEC.
The 1991 Directive introduced the European Firearms Pass (EFP), essentially an international firearms 'passport' issued by police authorities in EU Member States to persons authorised to possess firearms. While the UK recognises the EFP, and while British police forces issue these documents to firearm and shotgun certificate holders, the UK still maintains its system of Visitors Permits for those entering Britain from overseas.
It should be noted that the Directive specifies at Article 12(2) that "hunters, in respect of categories C and D and marksmen, in respect of categories B, C and D, may without prior authorisation (our emphasis) be in possession of firearms classified in these categories during a journey through two or more Member States with a view to engaging in their activities, provided they are in possession of a European firearms pass listing such firearm or firearms and provided they are able to substantiate the reasons for their journey, in particular by producing an invitation."
The requirement by UK legislation that visitors to Great Britain require a Visitors Permit thus, in respect of visiting EU citizens, amounts to 'prior authorisation' and is contrary to the principle of the Directive.
The procedure at Chapter 27 of Guidance on Firearms Licencing Law states that: "Generally it will be neither practicable nor appropriate to make detailed enquiries into a visitor's fitness to hold a firearm. It will normally be sufficient to see a copy of any current firearms certificate, hunting licence or membership card of a shooting organisation issued to an applicant in their own country. The EFP must be submitted if the visitor is resident in another EU State; copies of the EFP are acceptable.",
Thus issue of the Visitors Permit is dependent upon the EFP. If a valid EFP is supplied, then the Visitors Permit will invariably be issued.
It is therefore our view that, in respect of visiting EU citizens, the issue of a Visitors Permit is an irrelevance, and that visitors from EU member states who are in possession of an EFP should, as Article 12(2) states, be admitted to Great Britain with their firearms on the strength of a valid EFP presented at point of entry. This of course is the case in respect of British citizens visiting most other EU countries.
We do not believe that an ending of the requirement for EU visitors to obtain a Visitors Permit as prior authorisation of their visit would create any additional risk to public safety, and it would certainly reduce greatly the burden of work which has to be undertaken by the police.
Consultation question 8
9.23 We consider that the issues raised in this chapter are further examples of failings in the present law that generate practical problems and which would be suitable for resolution in a codification exercise.
Do consultees agree?
We agree, and particularly commend a change to the 'borrowed shotgun' exemption given at S11(5).
Borrowed shotguns and rifles
Our preferred option would be to replace 'occupier' with 'authorised person', that is to say the owner, occupier or any person authorised by them on the land in question, as defined in S27(1) of the Wildlife & Countryside Act 1981. We believe that this change would be the simplest way of remedying what, from the shooter's perspective, is one of the most commonly misunderstood parts of the Act.
We also believe that this change, by obviating the need for a shotgun certificate in many cases (such as that of a child learning to shoot while borrowing a shotgun from an adult who is not the occupier of the land in question) would reduce the burden to the police, including the requirement upon them to make assessments in relation to the grant of certificates to young people.
There appears to us to be no great merit in otherwise altering the nature of the exemption at S11(5). In particular we note that contrary to the suggestion at 8.57, there is no requirement for the lender to supervise the borrower in the way that a young person must be supervised by an adult as required by S22(3).
We further recommend that the change from 'occupier' to 'authorised person' be applied at S16 of the Firearms (Amendment) Act 1988 in respect of borrowed rifles. It would also be appropriate to delete reference to the 'servant of the occupier' since in the case of a professional estate stalker or gamekeeper lending the rifle, they will by virtue of their circumstances be an 'authorised person' in their own right.
Consultation question 9
9.24 Do consultees have suggestions of other areas of the law suitable for reform?
Self-loading and pump-action rifles smaller than .22 rimfire
Section 5(1)(ab) prohibits possession of self loading or pump action rifles other than those chambered for .22 rimfire. However, the Commission has observed that developments in firearms technology have overtaken the law in several respects. One of these is the development of calibres smaller than .22 rimfire, in particular .17HMR. This calibre is very popular indeed in its bolt-action configuration for the control of small vermin such as rabbits. However, it is not legal to possess this calibre as a self-loader since the law specifically exempts only .22 rimfire. We believe that the words 'or smaller' should be inserted after '.22 rim-fire'.
Right of appeal against conditions of FAC
It is a matter of concern that there is no right of appeal against a condition imposed on a firearm certificate by a chief officer. It seems to us that this runs contrary to the principles of natural justice, and we believe that the right of appeal should be available in law.
Section 7 temporary permits
Section 7 permits allow possession of firearms and ammunition covered by sections 1 and 2 of the Act. They do not allow possession of firearms and ammunition covered by section 5. However, the transfer of handguns and expanding ammunition onto S5 in 1997 means that many such items are now held by ordinary certificate holders for purposes allowed for by the Act such as deer stalking and pest control. This causes genuine problems when temporary possession of S5 ammunition or firearms is required, such as in cases where the police have failed to renew a certificate in a timely manner, or by the executors of a deceased certificate holder. This deficiency in the S7 permit should in our view be remedied.
We note that were expanding ammunition to become S1 once more, then much of the deficiency in the S7 permit would cease to present a problem, though not all, since those in possession of handguns under the exemptions allowed for by the 1997 Act would still be disadvantaged.
Bare possession
It is technically an offence to pass a S1 firearm to a person who does not have a certificate for that firearm, even for the briefest period. Thus two shooters crossing a fence in the approved manner, one passing his firearm to the second shooter before climbing over the fence, having it passed back to him, then receiving the firearm of the second shooter whilst he too climbs over the fence, may potentially involve two offences. S11(1) provides an exemption for gun bearers but it is restricted to circumstances in which the certificate holder is using the gun for 'sporting purposes only'. It does not apply where, for instance, a person is briefly passed a firearm for appraisal or takes possession of it because the certificate holder is taken ill. In the latter situation, moreover, the certificate holder may not be able to 'instruct' the person taking possession of the gun as required by S11(1). While a prosecution in these instances may not be in the public interest, the shooting public should not be obliged to rely on this, and an appropriate exception should be allowed in law for the brief, temporary possession of a firearm by a person in the immediate presence of someone lawfully entitled to possess it.
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