BASC response to Firearms Licensing Guidance Consultation

[Dalua]

The BIG issue we have is that the 1968 firearms act which is law gives the chief Constable unconditional ultimate discretion on how they determines a person is fit and proper to own firearms.

That said, the Act has never before been interpreted as allowing the Chief Constable to demand reports from medical professionals (or anyone else) at an applicant's expense. I woud suggest that this step is so far removed from the original purpose of the Act (i.e. to mandate that the CC, on payment of a single parliamentarily-set fee, certify applicants as fit to exercise their right to own and use firearms) as to invite some kind of challenge in law.

I will repeat that I have no objection to the Police asking my GP about my health - indeed, it seems sensible that they should.
However, there should be no question of anyone other than the requesting FLD paying for whatever reports/questionnaires they think might be needed.

 

[Liveonce]

Never been interpreted as allowing ..... and never will because of the open ended ultimate discretion to determine fit and proper.

The home office guide to firearms licensing 2016 states 10.23 that the when a medical report is required the police may ask the applicant to pay for it.

It also at at 10.22 states the applicant should give consent to allow information sharing with their GP.
Now common sense would suggest that this would be your registered GP.

I agree, I also have no issue with a medical report as part of the application process.

However if their is no law mandating your registered GPs to engage with the process then quite clearly they can choose not to which is the situation we are now in.
When this happens then the police tell you to use an alternative GP ie not your registered GP which is when the fun starts. But the ultimate discretion means the 2016 guidance has no obligation on the Chief Constable and hence you have no choice but to use an alternative GP.

 

[CarlW]

Never been interpreted as allowing ..... and never will because of the open ended ultimate discretion to determine fit and proper.

I agree, I also have no issue with a medical report as part of the application process.

However if their is no law mandating your registered GPs to engage with the process then quite clearly they can choose not to which is the situation we are now in.
When this happens then the police tell you to use an alternative GP which is when the fun starts.

In our legal system, there is no such thing as 'ultimate discretion'. It must always be exercised reasonably; otherwise the law may intercede. That, I think, is why @kes has been so insistent. Don't give up hope.

Kind regards,

Carl

 

[reloader54]

hard to believe all this bovine excrement is all to improve public safety,,, you could be forgiven for thinking there was some kind of "ulterior motive"

 

[Dalua]

Never been interpreted as allowing ..... and never will because of the open ended ultimate discretion to determine fit and proper.

I'm not sure what you're saying here. I don't think there was an intention on the part of the people who passed the Firearms Act to give the Police power to demand, at the applicant's cost over and above the statutorily-approved fee, whatever reports they see fit. This idea is certainly a considerable shift away from the practice of the last 99 years as well as from the apparent principle of the Act: and therefore deserves more thorough scrutiny than it seems to have got so far.

The home office firearms guidance 2016 states that the when a medical report is required the applicant should pay for it.

Indeed - but that was written by some HO civil servants. This doesn't mean that the principle is right or reasonable in law.

However if their is no law mandating your registered GPs to engage with the process then quite clearly they can choose not to which is the situation we are now in.
When this happens then the police tell you to use an alternative GP which is when the fun starts.

The whole think is on its head. If the police want info/reports form GPs or any other medical practitioner, then they should be the ones requesting and paying for that work. That's it - problem solved, as far as the applicants go. If the applicant's own GP won't play, the FLD can request a copy of the notes (at their expense, of course - and we've all given them permission already to get this info, I think) and let some other medico of their choice give them a once-over.

 

[Liveonce]

hard to believe all this bovine excrement is all to improve public safety,,, you could be forgiven for thinking there was some kind of "ulterior motive"

Their is backside covering of the Chief constable plain and simple.

 

[Liveonce]

In our legal system, there is no such thing as 'ultimate discretion'. It must always be exercised reasonably; otherwise the law may intercede. That, I think, is why @kes has been so insistent. Don't give up hope.

Kind regards,

Carl

1968 firearms act section 28

provisions about shot gun certificates.

[F1(1)Subject to subsection (1A) below, a shot gun certificate shall be granted or, as the case may be, renewed by the chief officer of police if he is satisfied that the applicant can be permitted to possess a shot gun without danger to the public safety or to the peace.

“If he is satisfied” so totally at their discretion as to what they need to happen to be satisfied.

The law is so old they never expected a female chief officer.

 

[Dalua]

“If he is satisfied” so totally at their discretion as to what they need to happen to be satisfied.

As Carl W said - it has to be reasonable.

 

[Liveonce]

Reasonable to who, we may all like to look at it through the eyes of common sense but the 1968 firearms act is the law and difficult to argue against the part where the chief officer is satisfied.
I think that is also the advice basc got from their QC when they considered a judicial review.

 

[reloader54]

This is becoming just like the "leaving the eu" scenario, after the event ,, everyone starts interpreting the result their own way to suit there own ends.

 

[CarlW]

Reasonable to who, we may all like to look at it through the eyes of common sense but the 1968 firearms act is the law and difficult to argue against the part where the chief officer is satisfied.
I think that is also the advice basc got from their QC when they considered a judicial review.

Reasonable to the man on the Clapham omnibus.

 

[Liveonce]

Now my current thinking is if their are two medical policies on the table, then should not the chief Constable have a responsibility and duty of care to the general public to select the one that delivers best practice.

One policy means 98% of applicants who do not declare a relevant medical condition (2% do) require no GP medical report assuming no other issues following the granting of their certificate the police request their own GP places a marker on their records that they own firearms and gives the GP up to 21 days to contact the police should the GP find any relevant medical condition.
The issue with this is that some, how many?, GPs are ignoring the police request.

The other policy requires every (100%) applicant to submit a GP medical report together with their application.
The issue with this is frequently (how many?) the applicants own GP will not engage in the process and an alternative GP is used with potentially a much greater opportunity for a fraudulent medical history to be presented by the applicant to the alternative GP at the time the GP uses the medical history to provide their report to the police.

So which is best practice?

 

[Liveonce]

I'm not sure what you're saying here. I don't think there was an intention on the part of the people who passed the Firearms Act to give the Police power to demand, at the applicant's cost over and above the statutorily-approved fee, whatever reports they see fit. This idea is certainly a considerable shift away from the practice of the last 99 years as well as from the apparent principle of the Act: and therefore deserves more thorough scrutiny than it seems to have got so far.


Indeed - but that was written by some HO civil servants. This doesn't mean that the principle is right or reasonable in law.


The whole think is on its head. If the police want info/reports form GPs or any other medical practitioner, then they should be the ones requesting and paying for that work. That's it - problem solved, as far as the applicants go. If the applicant's own GP won't play, the FLD can request a copy of the notes (at their expense, of course - and we've all given them permission already to get this info, I think) and let some other medico of their choice give them a once-over.

That was basically recommendation within the complain made against the chief Constable via the crime commissioner
The following was their response;

“This would see increased cost for Kent police to process such applications, whilst this cost could be passed back to the applicant, the employment of a GP is not the responsibility of Kent police, and in any event should not be required if the panel of GP’s willing to assist the applicant goes live.”

Now the panel of GP’s is an idea I think originating from basc where each police force have a few or more GP’s who naturally for a fee are willing to engage in the medical reporting process.

 

[Dalua]

So which is best practice?

Is it not a logical fallacy to pose this question? Would it not be better to find out why the proposals are 'on the table' in the first place?
There seems little decent evidence to back them up at present, and when the law-abiding are subjected to restrictions on their liberty and/or additional expense it is reasonable to expect some evidence in support of those restrictive changes.

One should rather ask why a change to the accepted current practice was considered, whether that change is proportionate to the expected risk reduction, and whether the cost of putting the change into effect can be afforded by the FLD - since there is historically no precedent for FAC/SGC applicants to be placed at the hazard of any expense for that process apart from the statutory fee.

 

[kes]

Maybe you will have access to a medical opinion only if you are a BASC member ?

There is undoubtedly a principle of reasonableness here which is not being applied - also, the medical conditions list meets the requirements that liveonce has mentioned above. The medical conditions list has had to be abandoned by, the lack of engagement/involvement by GP's .
This cannot be held to be the applican'ts fault and the person who specifies and cannot obtain delivery must pay to obtain what he wishes. The police want their cake and to eat it as well - JR would apply and if as is suggested, BASC has received that advice then let us see it !
There are many of our community who do not think BASC obtained legal advice and I am one - with the resources they have, £30K for JR to defuse member concerns was/is/and always will be, well worth it. I am convinced it was chat with some friends who said that BASC might try the route of lobbying politicians first.
That has totally failed but not wishing to expose this weakness BASC say nothing - when it suits them.

PUBLISH THE ADVICE.

 

[Orion]

Now the panel of GP’s is an idea I think originating from basc where each police force have a few or more GP’s who naturally for a fee are willing to engage in the medical reporting process.

But would the ‘panel of GPs’ have a mechanism to ensure that the marker is placed on the applicant’s medical record? As his own GP or surgery are not engaging we must assume not. Therefore the whole premise underpinning the medical evidence scheme - that of ongoing and continuing monitoring - goes out the window and the scheme and it’s original purpose falls flat on it’s face.

Thereafter the insistence for initial confirmation of medical suitability prior to issue of FAC/SGC has morphed into just another stick to beat lawful and law abiding firearms owners.

McKay would love it.

 

[Liveonce]

A sincere thanks for all the replies they are most interesting.
Having had the complaint response from the crime commissioner office their is no right of reply back that way the only option is via an appeal to the IOPC.
Now in theory they are totally independent and just may have some empathy with the dilemma, but nobody can deny that a medical report can be beneficial in the process of issuing the certificate and complies with the unbounded principle that the chief offer can do what he likes to satisfy themselves that you are a fit and proper person.
The two policy I vaguely described are the two options being used.
So how to word an appeal that gets round the unbounded principle of unlimited scope for satisfaction of the chief officer?
Based on the principle the law is the law, all be it this one is now 50years old and life has moved on a long way sine it was first written.
This is not a trick question I would like to appeal but to get anywhere it must be worded/constructed correctly and on,y have 29days to make the appeal.

Ps if you do wait until your renewal application and take advice from BASC they will tell you yes we will support your legal challenge but whist that is going on all your firearms must be placed in store with the police or RFD and it can take easily up to a year for the case to be heard by the court. So we rollover and comply because who wants to be without their firearms for many, many months and if you lose the case then what?

 

[Liveonce]

I would add i am sure the police know all the issues but don’t care (as it’s our problem to get the GP report) because if the **** ever hit the fan they would pull out the process make significant representation about the medical part and to the media and uneducated people they would look wonderful and had done all they can to ensure another nutter with a gun had not gone mad. Backside covered yep tick that box!

 

[Dalua]

but nobody can deny that a medical report can be beneficial in the process of issuing the certificate

Absolutely - though not a report in the first instance, perhaps: more like the questionnaire. We have all for decades been signing documents, whenever we've renewed our FAC/SGC, to allow the FLD to contact our GPs .

the unbounded principle that the chief offer can do what he likes to satisfy themselves that you are a fit and proper person.

I'm really not at all sure that this is a principle at all - though I'm sure the Police would like to think it is.

I think, as has been pointed out, that the principle is that that the Police need to show that they are behaving in a reasonable and proportionate manner. This should include an explanation of why what was previously reasonable and proportionate isn't up to the job any more. It would need them to explain also how the Act gives them authority to make the process cost the applicant more than the statutory fee payable in accordance with the law.

Have we any actual lawyers on here who think what I've written above is correct? I'm aware there might be a risk of large numbers of lay-people supporting each other in misunderstandings of the law which they hold in common.

 

[Liveonce]

The police would say since the introduction of mandatory medical screening, historic cases of where individuals has previously made a fraudulently application due to medical reasons have come to light (and this is indeed a true fact).
Hence the policy is reasonable and proportionate because even one mass shooting is one to many and if they can stop such an event via requesting mandatory doctors reports before the application is submitted then that is within the chief officers discretion to do so.

So a difficult nut to crack! But given the two medical policies both have their advantages and disadvantages, should the medical policy used not be the one that gives minimum opportunity for fraud during the process and maximum opportunity for compliance like the medical marker being applied ?

I see that approach as a possible way to appeal.