Rodenhurst v Chief Constable of Grampian Police
| Jurisdiction | Scotland |
| Judgment Date | 22 August 1991 |
| Date | 22 August 1991 |
| Docket Number | No. 1. |
| Court | Court of Session (Inner House) |
COURT OF FIVE JUDGES.
Sheriff Principal of Grampian, Highland and Islands.
PracticeFirearmsRevocation of shotgun and firearm certificates by chief constableAppeal to sheriffWhether sheriff acting in administrative or judicial capacityWhether subsequent appeal to sheriff principal and Court of Session competentFirearms Act 1968 (cap. 27), secs. 30, 44 (2) and Sched. 51Act of Sederunt (Firearms Appeals) 1970 (S.I. 1970 No. 1984), para. 22Act of Sederunt (Statutory Appeals) 1981 (S.I. 1981 No. 1591), para. 3.3
The Firearms Act 1968 enacts in sec. 44 inter alia that an appeal against revocation of a firearm or shotgun certificate lies to the sheriff. The Act of Sederunt (Firearms Appeals) 1970 provides in para. 2 that such an appeal shall be disposed of as a summary application.
23The chief constable intimated to the pursuer that he was revoking his shotgun and firearm certificates because he was no longer satisfied that the pursuer could be entrusted with a firearm without danger to the public as a result of a previous conviction and a number of pending charges. The pursuer appealed to the sheriff in terms of secs. 30 and 44 of the Firearms Act 1968. The sheriff allowed the appeal and the chief constable in turn appealed to the sheriff principal. The sheriff principal refused the appeal, holding it to be incompetent on the authority of Kaye v. HunterSC1958 S.C. 208. The chief constable then appealed to the Court of Session.
Held (1) that although the 1968 Act stated that appeal was to the sheriff, it was apparent from the facts that the equivalent English provision was for appeal to a court, and that Parliament had allowed the legislation to stand in the knowledge that the English court had affirmed the right to successive appeals, so that Parliament had intended the appeal to be to the sheriff court rather than the sheriff as an individual; (2) that as questions of law arose between the parties upon which the sheriff had to pronounce judgment, there was a truelis between them; and (3) that the appeal accordingly involved invoking the sheriff in his judicial capacity with the result that his decision was subject to review by the sheriff principal or the Court of Session; and appeal against the sheriff principal's interlocutorallowed and appeal on the merits refused.
Arcari v. Dumbartonshire County CouncilSC1948 S.C. 62followed; David Allen & Sons Billposting Ltd. v. Corporation of Edinburgh 1909 S.C. 70 and F. v. Management Committee and Managers, Ravenscraig HospitalSC1988 S.C. 158distinguished; Kaye v. HunterSC1958 S.C. 208overruled.
George John Rodenhurst appealed to the sheriff of Grampian, Highland and Islands at Aberdeen against the revocation of his shotgun and firearm certificates by the Chief Constable of Grampian Police.
On 5th January 1989 the sheriff allowed the appeal and recalled the revocation. The chief constable appealed to the sheriff principal. On 19th April 1989 the sheriff principal refused the appeal as being incompetent. The chief constable then appealed to the Court of Session.
SCHEDULE 5
Provisions as to Appeals under s. 44 of this Act
Part I
Courts with Jurisdiction to Entertain Appeal
Nature of appeal |
[Repealed] |
Sheriff's jurisdiction |
1. Appeal under section 26 (4), 29 (2) or 30 (3) (against refusal to grant or renew, or to vary, or against revocation of, a certificate). |
The sheriff within whose jurisdiction the appeallant resides". |
The cause was remitted to a court of five judges on 9th November 1990.
On 18th and 19th June 1991 the cause called before a court of five judges, comprising the Lord Justice-Clerk (Ross), Lord Allanbridge, Lord Murray, Lord Grieve and Lord Wylie, for a hearing thereon. On 19th June 1991 their Lordships made avizandum.
At advising, on 2nd August 1991, the opinion of the court was delivered by the Lord Justice-Clerk (Ross).
opinion of the court.In this case the pursuer is challenging the revocation by the defender of the pursuer's shotgun and firearm certificates. At the time when this cause was initiated, the pursuer was the head keeper of Haddo estate, and had been such for approximately three years. He had been a keeper for approximately 22 years and during that period had held firearm certificates and shotgun certificates in terms of the Firearms Act 1968. By letter dated 3rd August 1988, the defender intimated to the pursuer that because of a previous conviction and a number of pending charges the defender was no longer satisfied that he could be entrusted with a firearm or possess a shotgun without danger to the public safety or to the peace. The defender accordingly revoked these certificates, and the letter proceeded to give directions regarding the possession and disposal of various firearms and shotguns.
On receipt of this letter the pursuer appealed to the sheriff under the provisions of secs. 30 and 44 of the Firearms Act 1968. On 5th January 1989 the sheriff at Aberdeen sustained his appeal and recalled the revocation by the defender of the pursuer's firearm certificate and shotgun certificate. The defender then appealed to the sheriff principal and on 19th April 1989 the sheriff principal refused the appeal as incompetent. In the note annexed to his interlocutor of that date, the sheriff principal indicated that if he had held the appeal to be competent, he would have accepted the submissions addressed to him on behalf of the defender and would accordingly have allowed the appeal and held that the defender had not erred in his decision to revoke the certificates held by the pursuer. Against that decision of the sheriff principal the defender has appealed to this court.
At the time when the defender revoked the certificates the pursuer had appeared on petition charged with a total of 28 charges. Counsel for the defender informed the court that on 23rd May 1989, that is after the sheriff principal had issued his interlocutor, the pursuer had pled guilty to charges on an indictment which were in the terms of charge 6, charge 8, charge 10, charge 26 and charge 27 on the petition. Between the date of the sheriff principal's decision and the pursuer's plea of guilty to these charges, the defender on 27th April 1989 had marked an appeal to this court. We were also informed that on 28th January 1990, while the present appeal was awaiting a hearing, the pursuer's shotgun certificate had expired. A hearing of the appeal took place on 9th November 1990 after which the court appointed the appeal to be reheard by a court of five judges. Between that date and the hearing before five judges, namely on 25th April 1991, the pursuer's firearm certificate had expired. We were also informed that the pursuer was now living in Shropshire, and that accordingly if he wished to obtain a firearm certificate or a shotgun certificate he would require to apply to his local chief constable.
In limine a question arises as to whether the issues raised in the appeal are so academic that this court should decline to entertain the appeal. Despite these alterations of circumstances described above, counsel for the defender urged the court to allow the appeal to proceed. He pointed out that if the appeal was not allowed to proceed the result would be that the pursuer would be deemed to have been the holder of two certificates which had never been revoked, whereas if the defender's appeal were to proceed and be upheld by this court, it would be material for any other chief constable to realise that the pursuer had been the holder of two certificates which had been revoked. He also stressed that at the time when the appeal was originally taken, both the firearm certificate and the shotgun certificate were current. He also stressed that an important question which was to be argued in this appeal was whether the case ofKaye v. HunterSC 1958 S.C. 208 had been rightly decided.
Counsel for the pursuer, on the other hand, maintained that the issues which were raised in this appeal were now academic. Both certificates had expired, and if the pursuer wished to obtain certificates again he would require to apply to his local chief constable. In his application form he would require to disclose whether he had ever been the holder of a certificate which had been revoked. Counsel maintained that the defender now had no real interest in prosecuting this appeal. What the defender was seeking to do was to prosecute this appeal in the interests of other chief constables and in support of an academic proposition, namely, that Kaye v. Hunter had been wrongly decided. He also addressed an argument to this court to the effect that if there was doubt as to whether chief constables and sheriffs were adopting the correct approach in relation to matters of this kind, that was something which was susceptible to judicial review.
Since the two certificates were in existence and in full force when the appeal by the defender was lodged, and since, in the event of the pursuer applying for certificates again, it might be material to know whether the two certificates which are the subject of the present proceedings had been revoked or not, we have come to the conclusion that the issues which arise in this appeal are not purely academic. Although the two certificates have by now expired, we are of opinion that the defender...
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