This "guidance" is statutory and, in my view, reinforces why a JR should be attempted - I would be interested in hearing any comments to add to the discussion, rather than any prejudiced positions please.
Suggest this deserves a fixed posting for reference ?
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This "guidance" is statutory and, in my view, reinforces why a JR should be attempted - I would be interested in hearing any comments to add to the discussion, rather than any prejudiced positions please.
I've noted this and the word used is important. The word...MAY is used. But a lawyer practicing in Administrative Law would have to advise the value that the word MAY had as against if the word SHALL had been used. This is because the usual understanding is that MAY is permissive but not mandatory only merely discretionary and, by common practice, therefore does and will not apply in every circumstance.
Well after a quick read the mess continues, it reads that it is the responsibility of the police to contact and request the medical information from the applicants GP, NOT the applicant, but the applicants responsibility to pay any fee required by the GP.
It that fair or legal? I.e. the police want the report so why should the applicant pay other than the statutory application fee.
Gets interesting if the applicants GP refuses to engage in the process and the practice has no other GP able or willing to do the report, then it is suggested the applicant changes GP practice, clearly the Home Office have no idea how difficult that can be as they work on postcode areas, or they say use a private GP or the police forces own medical officer, so let’s all do that use the forces medical officer.
JR, JR.
Back to reading the rest.
So as this is statutory guidance that the Chief Officer must follow, when they next ask an applicant to submit the GP report at the the time of application together with application form, photo and fee clearly the applicant can refuse to provide the GP report insisting the Chief Officer is responsible for contacting the applicants GP.
Or is it just guidance that the Chief Officer will ignore!
It that fair or legal? I.e. the police want the report so why should the applicant pay other than the statutory application fee.
Gets interesting if the applicants GP refuses to engage in the process and the practice has no other GP able or willing to do the report, then it is suggested the applicant changes GP practice, clearly the Home Office have no idea how difficult that can be as they work on postcode areas, or they say use a private GP or the police forces own medical officer, so let’s all do that use the forces medical officer.
JR, JR.
Back to reading the rest.
So as this is statutory guidance that the Chief Officer must follow, when they next ask an applicant to submit the GP report at the the time of application together with application form, photo and fee clearly the applicant can refuse to provide the GP report insisting the Chief Officer is responsible for contacting the applicants GP.
Or is it just guidance that the Chief Officer will ignore!
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I am also continuing to read but so far, the suggestion seems to be - police contact doctor - no fee paid by applicant - no problems - cert can be issued. problems identified applicant pays for subsequent report - this I think we thought we knew. Also if doctor refuses to engage is set out.
I cannot find reference, even obliquely, to the ability/right of the POLICE to REQUIRE an applicant to pay for an upfront medical before they have contacted the police. Back to reading.
I am inclined to think, since this is statutory guidance, a second legal view would be helpful to support Enfield's legal view.
I cannot find reference, even obliquely, to the ability/right of the POLICE to REQUIRE an applicant to pay for an upfront medical before they have contacted the police. Back to reading.
I am inclined to think, since this is statutory guidance, a second legal view would be helpful to support Enfield's legal view.
This is, to me, the critical bit - note the "should" and on statutory Guidance I suggest that means "must",
2.30 The provision of relevant medical information from an applicant’s GP is necessary in order to determine the level of risk to public safety arising from the grant of a certificate. The certificate should not, therefore, be granted or renewed if this information is not provided. The police should follow the procedure set out below.
2.31 Following the initial approach to the applicant’s GP, if the police receive no response within 21 days and it is not known why this is the case, the police should consider sending a reminder to the GP.
2.32 If a reminder is sent and the GP still fails to engage, the police should inform the applicant:
a) that this is the case;
b) that the application cannot be progressed in the absence of a response from the GP; and
c) that the application will therefore be put ‘on hold’ pending receipt of the required information from the GP.
This is not what is happening and no org is testing this.
There is a line in the intro about PC's not having a "legal obligation to follow normal HO Guidance but this guidance is statutory - HOG is nevertheless "expert opinion". A Chief Con must also justify on a case by case basis why this Statutory Guidance is not being followed - here it is a wholesale setting aside of Statutory Guidance and adopting a process contrary to dictat (SHOULD).
2.30 The provision of relevant medical information from an applicant’s GP is necessary in order to determine the level of risk to public safety arising from the grant of a certificate. The certificate should not, therefore, be granted or renewed if this information is not provided. The police should follow the procedure set out below.
2.31 Following the initial approach to the applicant’s GP, if the police receive no response within 21 days and it is not known why this is the case, the police should consider sending a reminder to the GP.
2.32 If a reminder is sent and the GP still fails to engage, the police should inform the applicant:
a) that this is the case;
b) that the application cannot be progressed in the absence of a response from the GP; and
c) that the application will therefore be put ‘on hold’ pending receipt of the required information from the GP.
This is not what is happening and no org is testing this.
There is a line in the intro about PC's not having a "legal obligation to follow normal HO Guidance but this guidance is statutory - HOG is nevertheless "expert opinion". A Chief Con must also justify on a case by case basis why this Statutory Guidance is not being followed - here it is a wholesale setting aside of Statutory Guidance and adopting a process contrary to dictat (SHOULD).
As I read this below, this first issue is statutory and must be followed by chief officers unlike the HOG.
1.6. Thisguidancesitsalongsidethenon-statutoryHomeOfficeguideon firearms licensing law, and the College of Policing Authorised Professional Practice (APP) on firearms licensing. Whilst there is no legal duty to follow the Home Office guide or the College of Policing APP, these are provided to assist chief officers in interpreting the law and setting operational practices respectively.
1.6. Thisguidancesitsalongsidethenon-statutoryHomeOfficeguideon firearms licensing law, and the College of Policing Authorised Professional Practice (APP) on firearms licensing. Whilst there is no legal duty to follow the Home Office guide or the College of Policing APP, these are provided to assist chief officers in interpreting the law and setting operational practices respectively.
Time will tell.
Stalker62
Well-Known Member
Statutory guidance is not law.
In R v Islington LBC ex p Rixon [1998] 1 CCLR 119 it was held: "Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."
In this country legally, words mean what they mean in normal everyday use: hence "should" and "must" mean exactly that.
In R v Islington LBC ex p Rixon [1998] 1 CCLR 119 it was held: "Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."
In this country legally, words mean what they mean in normal everyday use: hence "should" and "must" mean exactly that.
So not worth the paper it’s written on
Tf223
Well-Known Member
Indeed, however even that is a grey area.
I for one don’t see an appeal being won by a FAC holder or applicant refusing to provide a medical cert/letter, on the basis that the principle of a medical check is established in the statutory guidance. Forces will refer to the inherent weaknesses in the system and hence why there were reasonable grounds to depart from the guidance. I believe this is why there has been no challenge, and even in the event of isolated Mags Court appeals, it sets no legal precedence.
Other statutory licensing guidance references the need to have regard to the guidance and only deviate where there are considered and sufficient reason todo so.
Kent police certainly produced the reports to their management to justify and evidence their deviation from the stat guidance course, even if you disagree with their decision.
I’ve said it before, my view is the a firearms amendment act needs to be enacted to legally oblige GPs to respond in a factual manner, and set a reasonable fee to cover their cost i.e max £30.00. That way public safety is upheld, the police don’t have an admin nightmare, and we don’t get ripped off by exorbitant charges.
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Tf223
Well-Known Member
It should also be noted that statutory guidance is not always technically and lawfully correct...
Pavement licensing guidance and law are different... one quotes 7 calendar day periods, and the other 5 working days, which can be different depending on public holidays. A real problem when you have to display a notice for a statutory period.
Taxi licensing stat guidance that that states the licensing authority is under a duty to ensure that an applicant is fit and proper, and the Act that says that they must be satisfied that they are fit (on the balance of probabilities) - again two different things.
Welcome to the world of of Acts/ guidance/ statutory guidance/ and interpretation thereof... licensing is rarely black and white!
Pavement licensing guidance and law are different... one quotes 7 calendar day periods, and the other 5 working days, which can be different depending on public holidays. A real problem when you have to display a notice for a statutory period.
Taxi licensing stat guidance that that states the licensing authority is under a duty to ensure that an applicant is fit and proper, and the Act that says that they must be satisfied that they are fit (on the balance of probabilities) - again two different things.
Welcome to the world of of Acts/ guidance/ statutory guidance/ and interpretation thereof... licensing is rarely black and white!
Conor O'Gorman
Well-Known Member
I agree with the title of the thread- this deserves a fixed posting for reference - as a good example of yet another misinformed post setting hares running.
The document being referred to is a draft document consulted on in 2019.
The government has yet to publish the outcome of the consultation. I think it was stated in a recent parliamentary Q&A that there were around 10,000 responses.
The document being referred to is a draft document consulted on in 2019.
The government has yet to publish the outcome of the consultation. I think it was stated in a recent parliamentary Q&A that there were around 10,000 responses.
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