Mills-Owens, R (on the application of) v Chief Constable of the Hampshire Constabulary [2003] EWHC 1306 (Admin)

Case No CO/889/2003[2003] EWHC 1306 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 13 May 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MAURICE KAY
Between
THE QUEEN ON THE APPLICATION OF MILLS-OWENSClaimant-v-
Between
THE CHIEF CONSTABLE OF THE HAMPSHIRE CONSTABULARYDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The CLAIMANT appeared in person. for in personMR SAVILL (instructed by FORCE SOLICITOR, HAMPSHIRE CONSTABULARY) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]MR JUSTICE MAURICE KAY: This is an appeal by way of case stated from a decision made in the Crown Court at Winchester on 8th November 2002. On that occasion, the Crown Court was hearing an appeal by Mr Huw Mills-Owens against the refusal to renew his shotgun certificate.[2]The background to the case is set out in the case stated in these terms. On 2nd October 2001, Mr Mills-Owens applied to the Chief Constable of Hampshire for renewal of his shotgun certificate, which was due to expire on 5th October. He gave his address as Westwood, Hangersley, Ringwood, Hampshire. On 7th June 2002, after a fairly lengthy exchange of correspondence, the Deputy Chief Constable wrote to Mr Mills-Owens formally notifying him of the refusal to renew his certificate on the ground that he did not reside within the Chief Constable's jurisdiction, as required by section 26(1) of the Firearms Act 1968 as amended.[3]The case stated records that evidence was given on behalf of the Chief Constable by Mr Readhead, Mr Tooley, the Firearms Enquiry Officer for the western area of Hampshire, and Police Constable Johnson, the Local Community Beat Officer. Mr Mills-Owens himself was the only witness on his own behalf, but he also adduced a written statement by his brother.[4]The case stated does not address the evidence in detail. It incorporates the transcript of the ruling and judgment of HHJ Pryor given on that day in court. That judgment relates how the Chief Constable and those acting on his behalf caused inquiries to be made in and around the property known as Westwood. This yielded the result that Mr Mills-Owens was not actually living at the house, in the sense of being a regular resident there, such as to justify the Chief Constable in accepting jurisdiction to grant him a certificate. I quote from parts of the judgment. It states that the evidence showed that on their visits the witnesses:
"found ... no real signs of occupation by anybody. Mr Tooley said that he adopted a technique of shutting a twig in the door so that when he returned he could check it, and on his visits it was apparent that the doors had not been opened. Mr Tooley took photographs on the 10th July which show the garden in a very overgrown state, with vegetation growing up close to the house in places. Photographs of, if I can put it like this, clutter of all sorts in the kitchen and in certain bedrooms, a leaking roof in the lounge, all the photographs which to my eye, and that of my colleagues, indicate that the place is very considerably neglected and suggest that nobody is actually living there on any sort of regular basis."
[5]Mr Tooley had given evidence that the scene had been very similar in January, save of course for the fact that the vegetation was in a less advanced state of growth at that time. The local police officer gave evidence along similar lines. He referred to a record of visits during the month of May, between 5th and 30th of that month.

The judge stated:

"He found then that there was no sign of any change in what he observed around the premises during that time, and ... Mr Mills-Owens accepts that he was not actually in residence during that period."
[6]The position appears to be that Mr Mills-Owens has three addresses. There is one house in Chiswick, which forms part of an estate in respect of which he is a beneficiary. He also has property in Chesham Street, SW1. His evidence is referred to by

the judge in these terms:

"He says that he does spend time, from time to time, at Westwood ... He visits there, he says. He does not simply use it as storage, although he does say that he has stored quite a lot of goods, from the London house that he has inherited, there."
Plainly he was cross-examined by counsel at the hearing about his movements and habits.

The judge said this:

"I have to say that we, I and my colleagues, found his answers really not very helpful to tell us exactly what he was doing, where he was living from time to time, how much time particularly he spent in this house in Hampshire."
There is a reference in the judgment to the burden and standard of proof and no issue is taken with that. The judgment then continued in these terms:
"In our view Mr Mills-Owens has not come anywhere near satisfying us that he is in any sort of regular residence at Westwood in Hangersley. He told us it has been in his family for many years -- some 34 years I think he said, or perhaps a little longer -- I think he said it was bought in 1964. His father lived there off and on, not all the time because the whole family spends quite a lot of time abroad, but his father died sadly in 1987 and since then Mr Mills-Owens says he has lived there from time to time ... "
He has various other addresses at which he lives, and we are quite unpersuaded that he lives at Westwood for more than the odd night in the year. Indeed in this year he virtually accepted in evidence that because of the demands on his time he has spent very little time there indeed."[7]The issue before the Crown Court was known to be one of residency. It appears that the Court was anxious to see whether there was any documentary evidence which might support Mr Mills-Owens' case. However, the judgment states:
"Mr Mills-Owens' evidence is totally lacking in any sort of particularity as to precisely when he was in residence, there is no supporting evidence of any kind as to payment for services, telephone bills, gas bills, water rates -- he says he pays them, no doubt he does -- but he has not produced anything to indicate what sort of bills he has, how much these services cost him, which would give an indication of the degree of use of the premises. There is no evidence that anything is ever done in the garden. Mr Mills-Owens says he likes his garden to be left to its own devices, but all these matters, to our mind, are indications of non-residence. "
All those matters taken together ... leave us with the clear conclusion that the Chief Constable is right when he says that he is not satisfied, and cannot be satisfied, that Mr Mills-Owens does actually reside at the premises."[8]Questions posed by the case stated for this court are:
"(a) Whether our construction of section 26(1) of the 1968 Act as amended was right and "(b) Whether the evidence justified our conclusion."
[9]Section 26(1) as amended provides:
"An application for the grant of a firearm or shot gun certificate shall be made in the prescribed form to the chief officer of police for the area in which the applicant resides and shall state such particulars as may be required by the form."
Residence is therefore a matter which goes to the jurisdiction of a particular chief constable in the exercise of his statutory powers. Before the Crown Court, reference was made to the case of Burditt v Joslin [1981] 3 All ER 203, where the significance of residence was considered by the Divisional Court. The Court accepted in that case that people can have two or more residences. Nevertheless, residence is something which has to be established on the facts of a particular case.[10]Before the Crown Court, and also in this court, Mr Mills-Owens has represented himself with conspicuous courtesy and commendable economy. He is mystified as to why, after many years, he should suddenly fail in his attempt to renew his shotgun licence. It is something which he has held by reference to that address for many years. He refers in his submissions to the number and frequency of his stays at Westwood and also to the duration of some of them. However, he understands that the task of this court is limited to what is contained in the case stated and the judgment of the Crown Court, to the extent that that refers to the evidence that was produced before it. He says that residence was queried in 1996, but his case was accepted at that time. He finds it difficult to comprehend why anything should now have changed. He also submits that much of the evidence adduced on behalf of the Chief Constable related to the period commencing May 2002, rather than the position as it existed on the ground in September 2001 and the immediately following months.[11]I have a degree of sympathy with Mr Mills-Owens to this extent: I suspect that his case before the Crown Court might have appeared in a different light had he received and acted upon professional advice as to the evidence which was required to be adduced. However, that is no more than a suspicion on my part. When I turn to the evidence which was adduced, and the way in which the court assessed it, I am bound to say that I find no basis at all upon which the decision of the Crown Court can properly be criticised. The court heard witnesses called on behalf of the Chief Constable. It examined photographs that were produced. True it is that Mr Mills-Owens has produced photographs to this court, which show the property in a far better and more obviously inhabited state, but those were not before the Crown Court. As Mr Mills-Owens appreciates, this court could only contemplate allowing his appeal if the Crown Court had misconstrued section 26(1), or if it had reached a conclusion that was not justified on the evidence before it. In my judgment, Mr Mills-Owens' submissions fall a long way short of establishing an error of either of those two sorts.[12]I conclude that the questions posed by the case stated must both be answered in the affirmative and the appeal must therefore be dismissed. I should, however, add this. No one suggests that Mr Mills-Owens is an unsuitable person for holding a shotgun certificate. The case was determined solely upon the point of residence. If, upon careful preparation, he can establish residence, whether it be in Hampshire or anywhere else, there is no material before this court suggesting that he would not succeed in any future application. Of course, this court can give him no guarantees as to the outcome of any application, either on the issue of residence or anything else. However, if the matter is looked into in relation to a future application, the possibility remains that he may succeed on the issue upon which he failed, and properly failed, on the evidence which was before the court in this particular appeal.[13]Thank you both very much.[14]MR SAVILL: My Lord, there is a consequential application for costs in the sum of £750.[15]MR JUSTICE MAURICE KAY: Yes. Mr Mills-Owens, you have failed. Normally costs follow the event. Is there anything you want to say as to why you should not have to pay the costs of this appeal in the sum of £750?[16]MR MILLS-OWENS: Only that if I had received answers to some of the questions that I put to the respondent at the beginning, there would have been no necessity for any of this action. If I had known what the position was, I would have been able to take account of it and either decide not to pursue it, or would have then known what to do to pursue it. So from the very beginning, the letters that I wrote were written to try and find out what the true position was. I never received any answers. I have received an answer now, but if I had received an answer at an earlier stage, we would not be here at this time. That is about all I think I can say.

MR JUSTICE MAURICE KAY: Thank you very much.

[18]I see no reason why in the circumstances the normal consequences should not follow. Accordingly, I make an order for costs in the sum of £750. Thank you both very much.