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The Earl of Mar and Kellie: My Lords, I should like to support the amendment, but I hope that the noble and learned Lord the Lord Advocate can help me. I am concerned about the use of subjective criteria for determining whether someone should or should not have a firearms licence. In the case of Thomas Hamilton, the problem for the Central Scotland Police was that they
had heard many what can only be described as rumours about his unsatisfactory behaviour and therefore unsuitability for a firearms licence, but they had no objective criteria. He had not committed any offences about which they knew. Therefore, they did not feel that they could refuse him a licence.Does the amendment allow the police to refuse a firearms licence on the ground that a person is an unsavoury character? Are they able to proceed with a refusal without fear of that refusal being overturned on appeal?
Earl Attlee: My Lords, I support the noble Earl. I had similar concerns about the ability of the chief constable to take non-conviction information into consideration. That point came out in great detail in the Cullen Report.
Will the appeal procedure reflect the ability of the chief constable to consider non-conviction information?
The Earl of Balfour: My Lords, on reading this Bill and, again, the 1968 and 1988 Acts, I felt that the appeals procedure in Scotland was very weak. I am glad that the amendment has been introduced.
Lord Harris of Greenwich: My Lords, perhaps I may put a question to the noble and learned Lord the Lord Advocate. At the end of his remarks, he indicated that he hoped that chief officers of police would understand the reasons why the amendment was phrased as it is. If he will forgive my saying so, that implies that their representations to the Home Office and the Scottish Office pointed the Government in a different direction. Is that true? In other words, are the police content with the way in which the Government are proceeding?
Secondly, I wish to take up a point made a few moments ago. Let us say that the police have criminal intelligence that a man who has no previous criminal convictions has an unsatisfactory personality, or that he consorts with people so as to give rise to a belief that at some stage in the future he might behave unreasonably or irrationally. Is that enough to entitle a chief officer to turn down that person's application for a firearm licence? We should be clear on these points. There is great concern in the police service to get this matter right at this stage.
Lord Hylton: My Lords, the issue of objective and subjective criteria was raised in relation to this amendment. If rumours or allegations are flying about, would it not be prudent in many cases for the police to ask for a mental health check to be carried out on an individual before they satisfy themselves that he is suitable to be awarded a firearm certificate?
Lord Annan: My Lords, I do not know any way in which this cannot be a subjective judgment. All judgments concerned with moral questions are in the end subjective. The argument of the noble and learned Lord the Lord Advocate was perfectly valid.
Lord Mackay of Drumadoon: My Lords, I am grateful for the support that the amendment has
attracted. To deal first with the point raised by the noble Lord, Lord Harris, police officers have been consulted on this matter, both in the Scottish association and the association covering England and Wales. I think that they will not be upset if I disclose that they would have preferred the approach that was clearly preferred by Lord Cullen although not specifically recommended by him. The implications of the European convention were explained to them. One of the reasons for my detailed explanation of what lies behind the amendment is so that everyone can understand why there has been this admitted change of tack.I turn to the question of what information chief constables may take into account. It may not be helpful to look at the matter in terms of objective or subjective criteria. Chief constables are not restricted in any way in the information that they may take into account in deciding whether to grant an application or revoke a certificate. They are entitled to take into account the existence of criminal convictions; they are equally entitled to take into account evidence or information suggesting some aspect of an individual's character or behaviour which renders that person inappropriate either to obtain or retain a certificate. In other words, the information that chief constables have would not require to be necessarily admissible in law in a criminal or civil case for that information to be relevant to a chief constable's decision. His decision on an application before him has to be his own personal assessment based on information available to him, from wherever it came.
The import of the amendment, as opposed to the approach favoured by Lord Cullen, is that when the court comes to consider an appeal, the chief constable is required to lay all that information before the court to seek to justify his or her decision. Equally, the court is not limited, as in a criminal case, to receiving evidence or information that is admissible only if it complies with certain statutory provisions. Equally, the applicant or former holder of a certificate is not bound by the strict rules of admissibility of evidence. It is a full re-hearing, to be conducted by the Crown Court or sheriff court, taking into account any information, from whichever source, that any chief constable or applicant wishes to lay before it.
Lord Pearson of Rannoch: My Lords, I am most grateful to my noble and learned friend for giving way. While he is on this point, will he say whether he would expect a chief constable to refuse a firearm certificate to someone solely on the grounds that that person had a driving conviction? I understand that a number of certificates have been refused on that ground. Perhaps my noble and learned friend will give the House some idea as to exactly where his mind is moving on this point.
Lord Mackay of Drumadoon: My Lords, I am not prepared to suggest that driving convictions would necessarily be irrelevant to an issue that a chief constable would have to decide. It would be for each chief constable to take account of a particular conviction. If it was a comparatively trivial matter, for instance a charge of careless driving, it is unlikely that it would justify action. However, I cannot exclude that possibility since something might lie behind it. For instance, a careless
driving charge involving someone else which led the chief constable to believe that there was some animosity on the part of the individual and that he displayed a tendency that made him an inappropriate person to hold a firearm certificate.It is very important that this House does not seek to limit the discretion of a chief constable as to the information and evidence of which he may take account. Parliament has laid down the decisions that have to be taken and the statutory criteria to which a chief constable must have regard. Beyond that, the matter is to be left to chief constables. I hope that those who are anxious to protect the interests of the shooting community will acknowledge that these broad appeal procedures will allow a complete and unrestricted appeal against any decision taken by a chief constable and that their interests would be adequately protected.
I should also mention the point raised by the noble Lord about medical conditions. I understand that my noble friend wrote a letter on that subject to the noble Lord, Lord Hylton, dated 6th February and that a copy is in the Library or if it is not, I will ensure that a copy is placed there. The letter responds to certain points raised on Report dealing with a situation of mental illness.
Clearly it would be open to a chief constable who had a concern about that matter to ask for a medical certificate to be produced. Certain practical problems will arise in relation to that. It is no secret that some doctors have made it clear that there will be reluctance on their part to issue such certificates. However, if a doctor is prepared to do so, then no doubt such a report will be before the chief constable. If, on the other hand, the chief constable had no justification for seeking a medical report and that was the sole reason for his refusal to grant a certificate, or for revocation, then clearly the whole matter would require re-examination before the Crown Court or sheriff court. In either event I suggest that the interests of shooters would be well protected.
I am grateful for the support that these new procedures have received. I am optimistic that they will serve to promote a proper balance between the interests of public safety and of those who wish to participate in shooting.
Earl Attlee: My Lords, before the noble and learned Lord sits down, I have one slight concern. If the police have information that was given in confidence but not anonymously, will they be able to rely upon that? Will there be any difficulty when they try to rely upon it in court?
Lord Mackay of Drumadoon: My Lords, it is open to chief constables to rely on information which comes from any source they deem reliable and appropriate. It may be that to protect a registered informer or for some other sound operational reason a chief constable would not wish to disclose the source of that information at an appeal. A chief constable might say that he had reached the view that he was not disposed to place the information before the court. In that event it may restrict his chances of protecting the decision which he had taken and persuading the court to uphold it. But that has to be an operational matter for the chief constable.
I think that the House would be content that it should be left on that basis. We should not restrict chief constables by restricting the sources from which they can obtain information. But equally it must be for them to reach a decision as to whether they disclose the source or the information itself when the matter comes to an appeal.
On Question, amendment agreed to.
6 p.m.
Clause 43 [Power of search with warrant]:
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