New Statutory Guidance on Firearms Licensing

In a Valentine’s Day treat for police practitioners, the Home Office has released new Statutory Guidance for Chief Constables in respect of firearms licensing decisions.

The new Guidance is available here.

Summary of Changes

The most significant changes in the new Guidance are as follows:

1. Social media: Police are now encouraged, for the first time, to conduct open-source social media checks on applicants [2.48]. Although officers are expected to ‘respect free speech’, police should check: “whether the applicant is openly and repeatedly expressing views, or sympathising with views, which may suggest that their access to firearms would be inappropriate or unsafe. Police forces must respect the individual’s right to freedom of speech, but if there is any indication of a possible propensity to violence, illegality or emotional volatility, these should be considered” [2.48]
2. No application to renew: If an individual fails to make a renewal application, the police are expected to make enquiries to confirm that the individual no longer has possession of a firearm/ ammunition (para 6.3). The Guidance also provides more detail about the police’s ability to issue a temporary firearms permit, pursuant to s.7 Firearms Act 1968 (para 6.6 – 6.9).
3. Referees: The Guidance indicates that the Home Office is currently reviewing the current approach to referees, with a result expected shortly [2.21]. At present, therefore, it remains the case that applicants for firearms certificates are required to provide two referees whereas applicants for shotgun certificates are only required to provide one [2.21].

Comment

The Guidance raises new questions and, perhaps regrettably, leaves other important issues unanswered. Three points are considered below.

       (1) Social Media

Forces will need to create an appropriate process to conduct open-source research on applicants’ social media presence/ activity [2.48]. In practice, this is likely to lead to the following issues:

1. The Guidance suggests “emotional volatility” online should be a concern. The challenge for Forces is considering how evidence of such volatility applies in a firearms context, particularly given that people can express their emotions fiercely online.
2. Although the Guidance states freedom of speech must be respected, it offers limited Guidance on what this means. It is likely that Article 10 ECHR will be invoked by Appellants whose licenses are refused/ revoked as a result of social media checks, raising the issue of when lawful speech may nonetheless lead to a privilege being withheld.
3. It may be difficult for police to prove who owns a social media account, particularly if it is anonymous. The Guidance indicates that RIPA 2000 should be considered where necessary.

(2) Standard of Proof

Perhaps regrettably, the new Guidance does not clarify which standard of proof (if any) Chief Officers should apply. As a result, its approach to the standard of proof to be applied in firearms cases arguably remains confused. The Guidance repeatedly refers to the “balance of probabilities” (e.g. at [3.16]), but then suggests “information that in itself does not meet that test may still be assigned weight” [3.16; 3.32].

Firearms practitioners will be aware that case law states there is no fixed standard of proof in firearms appeals.

        (3) PII/ CMP

Finally, although the new Statutory Guidance implies the Crown Court has the power to grant Public Interest Immunity (“PII”) applications and/ or hold Closed Material Proceedings (“CMPs”) it does not explicitly explain the source of this power.

The Guidance envisages that PII applications will be made [3.53]. It also implies CMPs may be appropriate, because it states applicants should not always be allowed to comment on information about them (such as where it “may compromise an ongoing investigation”) [3.15].

Despite this relatively clear steer, the Guidance does not reveal where the power to grant PII/ hold such CMP proceedings comes from. This issue is likely to become more important given that Forces are being encouraged to seek RIPA authorisation to conduct more rigorous social media checks in appropriate cases.

Conor Monighan is a specialist police lawyer and has acted in a considerable number of firearms appeals for a variety of forces (including where PII/ CMP considerations apply).