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Lord Mackay of Drumadoon moved Amendment No. 58:
After Clause 41, insert the following new clause--
(".--(1) For section 44 of the 1968 Act (appeals against police decisions) there shall be substituted the following section--
"Appeals against police decisions.
44.--(1) An appeal against a decision of a chief officer of police under section 28A, 29, 30A, 30B, 30C, 34, 36, 37 or 38 of this Act lies--
(a) in England and Wales, to the Crown Court; and
(b) in Scotland, to the sheriff.
(2) An appeal shall be determined on the merits (and not by way of review).
(3) The court or sheriff hearing an appeal may consider any evidence or other matter, whether or not it was available when the decision of the chief officer was taken.
(4) In relation to an appeal specified in the first column of Part I of Schedule 5 to this Act, the third column shows the sheriff having jurisdiction to entertain the appeal.
(5) In Schedule 5 to this Act--
(a) Part II shall have effect in relation to appeals to the Crown Court; and
(b) Part III shall have affect in relation to appeals to the sheriff."
(2) In Schedule 5 to the 1968 Act (provisions as to appeals), after Part II there shall be inserted--
"Part III
Appeals in Scotland
1. An appeal to the sheriff shall be by way of summary application.
2. An application shall be made within 21 days after the date on which the appellant has received notice of the decision of the chief officer of police in respect of which the appeal is made.
3. On the hearing of the appeal the sheriff may either dismiss the appeal or give the chief officer of police such directions as he thinks fit as respects the certificate or register which is the subject of the appeal.
4. The decision of the sheriff on an appeal may be appealed only on a point of law." ").
The noble and learned Lord said: My Lords, in moving this amendment I wish to speak also to Amendment No. 80. Both amendments deal with the important issue of appeals procedures. It is right that I should explain briefly to the House the background to the amendments which seek to lay down a procedure for appeals against various decisions by chief constables under the firearms legislation. As noble Lords will recall, Lord Cullen made a number of important observations on appeals against these decisions. I shall describe in outline what the main recommendation was and how the Government propose to respond to it.
At the outset the Government accepted Lord Cullen's recommendation that consideration be given to reform of the appeal arrangements. In the event this turned out not to be a straightforward task. Case law on appeals has developed over the years, and despite the fact that the statutory provisions for Scotland and for England and Wales are similar it has developed in different ways. Partly because of that, I suspect, Lord Cullen's report did not give a clear blueprint for action but recommended that detailed consideration be given to the matter.
The Government continued with the consideration after the announcement of their response. In December the view was reached that it was important to consult with those most knowledgeable about, and interested in, the appeals procedures, including members of the judiciary, the legal profession, the police and shooting organisations. Conscious that we were initiating consultation just before Christmas, we thought it right, despite the urgency of the matter, to give consultees approximately one month to respond. We asked for their replies by 23rd January and since then a great deal of work has gone into considering the replies and the implications arising from them for statutory change. It is a matter of regret, for which I apologise to the House, that the drafting of the amendments could not be completed in time to give your Lordships' House the normal period between the tabling of the amendments and today's debate.
Perhaps it might assist the House if I remind noble Lords that at paragraph 8.119 of his report Lord Cullen said that consideration should be given to reforming the
In the course of his inquiry, Lord Cullen looked with great care at the way in which firearms appeals are currently conducted. He highlighted uncertainty in Scotland about key questions--in particular whether the sheriff on appeal could effectively hear the case afresh or whether (as had earlier been the understanding) he could only interfere with the decision of a chief officer of police if he were persuaded that it was a capricious or arbitrary exercise of his discretion. Lord Cullen also highlighted diverging approaches between Scotland on the one hand and England and Wales on the other hand, to which I have already referred.
Lord Cullen addressed the issue as to whether an appeal should amount to a rehearing of the application that had been refused or revocation of a certificate. In his report at paragraph 8.117, he said:
At paragraph 8.119, Lord Cullen concluded that the appropriate approach was,
Lord Cullen then drew attention to the Licensing (Scotland) Act 1968 and the Civic Government (Scotland) Act 1982 which contained provisions which in his view seemed to form a model for putting that approach into practice.
The initial view of the Government was that Lord Cullen's approach seemed eminently sensible. But detailed consideration of what he recommended, both in the light of the consultation which we carried out, and, more particularly, in the light of the terms of the European Convention on Human Rights, revealed that we could not safely proceed in that way without risking a violation of Article 6 of the convention. Article 6(1) requires independent judicial determination when somebody's civil rights are being affected by a decision. Our view, having considered the points made in consultation, is that the procedure for decisions by the chief constable, coupled with appeal limited to the grounds recommended by Lord Cullen, would not amount to a proper compliance with Article 6(1).
We therefore had to think long and hard about what to do in the light of the conflict between Lord Cullen's favoured approach and the terms of the European convention. We have reached the view that the best way forward is to clarify the position for appeals in both Scotland and England and Wales. We have decided essentially to include on the face of the Bill arrangements under which appeals have been made in England and Wales under the existing legislation, thus removing any uncertainty which may have affected
I turn briefly to the terms of the amendments themselves. Amendment No. 58 inserts a new clause into the Bill to give effect to the decisions that I have just described. The new clause replaces the existing Section 44 of the 1968 Act. It lists the various decisions by chief constables which can be subject to appeal under the Act. The list has been amended to include the new sections which the Bill seeks to insert into the 1968 Act. The new Section 44 restates the fact that in England and Wales appeals are made to the Crown Court and in Scotland to the sheriff. It provides that the court should hear a full appeal on the merits of the case. The chief constable will be able to take account of all information which is available to him in reaching his decision. The court will be able to take account of any evidence or other information then available whether or not it was available to the chief constable when the original decision was taken by him.
The amendment creates the necessary link to Schedule 5 to the 1968 Act which sets out the detailed arrangement for appeal procedures including which Scottish sheriff has jurisdiction to hear a particular appeal.
The new clause also inserts into Schedule 5 the necessary detailed arrangements for appeals in Scotland. The summary application procedure is to be used in appeals to the sheriff, as currently happens. It provides that appeals will be made within 21 days' notification of the decision appealed against. It also clarifies what the sheriff may do after hearing the appeal. He may either dismiss it or give the chief constable directions on the certificate or register which has been the subject of the appeal.
Appeals from the sheriff are allowed only on a point of law. Since the sheriff will have heard a full appeal on the merits of a specific case, it is unnecessary to have a further appeal except on points of law. Amendment No. 80 is a simple, consequential amendment which I need not go into.
I apologise for speaking at such length on the amendments. However, in view of the problems that the Government face in dealing with the detail of Lord Cullen's recommendation, and the importance of the matter to members of the shooting community and to chief constables, I thought it appropriate to set out a full explanation of what lies behind Amendment No. 58.
"It is to my mind strange that, when so much importance attaches--and rightly so--to the responsibility of the police and in particular the decision-maker, that a court of law should take on the responsibility of discharging that function in deciding an application or a question of revocation ... While cases may occur in which a chief officer of police proceeds on what turns out to be incorrect information or mistaken view of the law, the core of his function is the exercise of his judgment."
"to recognise the discretion of the chief officer of police, retain the courts as the avenue for appeal, and limit the scope of appeal to enumerated grounds which between them should cover the areas in which there should be room left for appeal."
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