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Thread: Devil's Advocate?

  1. #1

    Devil's Advocate?

    After having quite a bit of legal discussion with my Barrister today, on totally unconnected matters I may add, it occurred to me that when plod arrests a person for sleeping in his vehicle after having a surfeit of alcohol, (this could be a lorry driver in a sleeper cab, or a car driver in the back seat) because the person is in possession of the ignition keys, or may be aware of the location of said keys, for fear that he or she may decide to try to drive the vehicle, How does the holder of a firearm certificate stand, (or wobble) if he or she has just had a couple of snifters at home, & is certainly beyond the legal limit to drive, but is in possession of the keys to the gunsafe as said firearms have just been secured?

  2. #2

  3. #3
    Ash, you are so perceptive!

  4. #4
    The thing is that there is a specific offence of being drunk in charge of a motor vehicle (or over the limit) and the circumstances you mention are included:

    The offence is as stated below
    Sec 5(1) RTA 1988
    If a person -
    (b) is in charge of a motor vehicle on a road or other public place,
    after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence .

    PNLD describes 'In Charge' in this way:-
    "There is no hard and fast rule or strict test for what constitutes 'in charge' for the purposes of being in charge of a vehicle whilst under the influence of drink or drugs under section 4 and being in charge of a vehicle whilst over the prescribed limit under section 5 of the 1988 Act. However, a close connection between the defendant and control of the vehicle is required. That connection may be evidenced by the defendants position in relation to the car, his actions, possession of a key which fits the ignition, his intentions as regards control of the vehicle and the position of anyone else in, at or near the vehicle."

    Sec 5(2) offers a statutory defence for 'In Charge'

    5(2) It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit .

    This defence was softened in favour of the defendant in light of the Human Rights Act 1998, where it was deemed that this statutory defence was too hard to achieve. The court in the Case Law of Sheldrake v DPP in 2003 gave the folowing meaning to the statutory defence.

    "It is a defence for a person charged with this offence to demonstrate from the evidence an arguable case that at the time he was alleged to have committed the offence, the circumstances were such that there was no likelihood of his driving the vehicle while the proportion of alcohol in his breath blood or urine remained likely to exceed the prescribed limit."

    The court later clarified

    "It is not sufficient for the accused to show that, at the time of his arrest, he was so hopelessly drunk as to be incapable of driving a motor vehicle; he must show, for example, that he had handed the keys of the vehicle to someone else or that, realising that he was adversely affected by drink, he had taken a room for the night."

    Now your scenario of being 'over the limit' but at home with the gunsafe keys - bearing mind that we are all 'in possession' of the keys at all times anyway.

    There is an offence of being 'Drunk in possession of a loaded firearm' under the Licensing Act 1872 but that wouldn't apply in the scenario you describe.

    I think the worst thing that could happen was for your FLO to examine your intemperate habits and possibly revoke your certificate if he no longer considered you to suitable under the 'FITNESS TO BE ENTRUSTED WITH A FIREARM' criteria as per the HO guidance:

    II. Intemperate habits
    12.8 Factors for consideration include:
    a) Evidence of alcohol or drug abuse that
    may indicate that a person is unfit to
    possess a firearm due to the possible
    impairment of judgement and loss of
    self-control. The relevant case law here is
    “Luke v Little” (1980) supported by “Chief
    Constable of Essex v Germain” (1991).
    An assessment will need to be made into
    the circumstances of each case. Usually,
    it will be a pattern of behaviour that
    causes concern but there may also be cases
    where one-off incidents will bring into
    question the fitness of somebody to
    possess firearms. In the case of “Lubbock v
    Chief Constable of Lothian and Borders” (2001)
    the Sheriff ruled that the revocation of a
    firearms and shot gun certificate following
    one isolated drink driving incident was
    justified given the individual’s general
    attitude towards the offence.

    Okay, so what did your Brief say?

  5. #5
    As I said, Barrister conflab was actually unconnected with subject at hand, just so happened that it was a subject prompted............... Ash, Have you got a picture of a bigger can?

  6. #6
    Okay, in that case I'll plump for plod quoting 'anti-terrorism legislation' and banging you up regardless!

  7. #7
    Funny you should say that! , already had a full AT response at our place last year.

  8. #8
    Well what do you expect when you get your face veils and concealment gear from 'Burkas 'r' us' instead of Bushcraft!

  9. #9

  10. #10
    Is this not rather a question about nothing?

    As Orion says, it is certainly not lawful (or prudent) to be drunk in charge of a loaded firearm, but it is not clear how 'drunkeness' here would be defined.

    I don't see any parallels with the motoring legislation at all, as there are broad 'in charge' concept has no bearing, really.

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