Updated Statutory Guidance on Firearms Licensing

The Home Office has updated its Statutory Guidance on Firearms Licensing, introducing several important changes for firearms practitioners.

The new Guidance is available here.

Summary of Changes

The Guidance contains a number of changes. Among the most important are:

1. Standard of proof: As noted by the author in a previous post, the 2023 Guidance created uncertainty about what standard of proof applies to licensing decisions. This is a vitally important issue because it affects every single licensing decision made by the police and courts across the country. Pleasingly the new Guidance has clarified matters, stating that the civil standard—the balance of probabilities—will often be sufficient. However, it also notes that evidence should still be considered even where that threshold is not reached. Practitioners will be aware that case law confirms no fixed standard of proof applies in firearms licensing decisions.
2. Public Interest Immunity: The Guidance helpfully directs officers (and courts) to the Kingston decision, where the Divisional Court confirmed that Crown Courts may use Closed Material Proceedings (CMPs) in licensing appeals. CMPs allow sensitive evidence to be presented to the court without being disclosed to the other party. The Guidance highlights that this may be appropriate in cases involving domestic abuse, informants, or terrorism. The Divisional Court has recently released another judgment on this important issue, summarised here, which is not currently referred to within the Guidance.
3. Domestic abuse: The Guidance has tightened up the approach to domestic abuse/ violence, making it obligatory to interview applicants’ partners as a matter of routine. Officers are now expected to be trained in such matters (though it is unclear what that means or where the money for any additional training is to come from).
4. Referees: In a previous blog it was noted that, bizarrely, only one referee was required to support an application for a shotgun certificate whereas a firearms certificate required two referees. That has now been changed. Two referees are required in both shotgun and firearms licence applications, helping ensure better protection for the public and for the shooting community.

Comment

It is pleasing that a number of problems historically created by the Guidance, as outlined by this author in a previous article, have been addressed. The clarification on the standard of proof is welcome, as is the stronger protection for victims of domestic abuse.

Inevitably, of course, there is more to be done. Three points are considered below:

(1) Social Media

The previous version of the Guidance, issued in 2023, required forces to create appropriate process to conduct open-source research on applicants’ social media presence/ activity [2.48]. That approach is maintained by the new Guidance.

However:

1. The Guidance indicates that ‘emotional volatility’ is a relevant factor when assessing suitability. That is difficult for forces to assess given that people often express themselves forcefully online. Unfortunately it remains the case that no additional advice has been given to firearms licensing departments on this issue.
2. Although the Guidance states that freedom of speech must be respected, no assistance is given on how that concept applies to firearms licensing. Can lawful free speech lead to the withdrawal of a gun licence?
3. The 2023 Guidance stated that the National Police Chiefs’ Council was developing a solution which would allow applicants’ anonymous/ private social media accounts to be screened. That appears to have been dropped (at least publicly). It may be thought that this rather weakens the checks that can be done.

(2) Standard of Proof

It is perhaps odd that the Guidance still refers to the ‘balance of probabilities’ test, despite saying it does not apply. Case law makes clear that there is no fixed standard of proof in firearms licensing cases. A number of forces (at least historically) have applied a ‘balance of probabilities’ test and greater clarity on this issue would be welcome.

(3) Confusion re Domestic Abuse

Although the Guidance rightly strengthens the protection offered to victims of domestic abuse, some aspects are not as clear as they could be. For example, paragraph 2.59 reads as follows:

“2.59 The police will need to be satisfied that anybody who has perpetrated domestic abuse is not issued with, or retains, a firearms certificate, and officers must follow-up on any intelligence or reasonable suspicion that this could be the case”

That statement simply cannot be correct. The Guidance itself goes on to say that where there are ‘exceptional circumstances’, such as the passage of time, a licence can be granted even where there is a history of domestic violence.

To take an example – if a person had committed an act of domestic violence but had reformed and there was no evidence of repeat behaviour, it is distinctly unlikely that a court would withhold a licence from them (in the absence of other concerns).

The passage quoted above already appears to have led to confusion, with one major newspaper reporting ‘Domestic abusers to be banned from owning guns after string of shootings’. That headline is inaccurate and indicates how the passage above may inadvertently mislead the public and police officers.

Conor Monighan is an expert firearms/ shotgun/ explosives licensing barrister. He has acted in a number of the leading cases, including Kingston (where the court found that Closed Material Proceedings may be conducted in licensing appeals) and Peterborough (in which the Divisional Court explained the procedure which applies to Public Interest Immunity applications). He can be contacted at clerks@5essex.co.uk

This article is not legal advice.