Beck v Chief Constable of Hertfordshire [2008] EWHC 1909 (Admin)

[2008] EWHC 1909 (Admin)Case No CO/9335/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 8 July 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MR JUSTICE BLAKE
Between
BECKClaimantv
Between
CHIEF CONSTABLE OF HERTFORDSHIREDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Drew appeared for ClaimantMr Burkett appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BLAKE: This is an application for judicial review by the claimant Mr Beck concerning the response that has been made on or behalf of the Chief Constable of Hertfordshire to an application made by Mr Beck for a shotgun certificate pursuant to Section 28 of the Firearms Act 1968.[2]In brief, there is a history to this case that can be summarised. At some stage in the past Mr Beck lived in Scotland where it seems his family have a home and he came within the jurisdiction of the Dumfries & Galloway Police in respect of firearms matters. It appears that at some stage in 2001 he had been refused a firearm by that police force. He moved in 2002 to the Essex area, and appears to have made two related applications for a shotgun/firearm certificate to the Essex police. He then moved to the Hertfordshire area whilst those applications were under consideration although it seems that only the shotgun application was transferred by the Essex police to the Hertfordshire police. In due course that matter was investigated by the Hertfordshire police and refused. There were then judicial review proceedings which were dismissed on 25 May 2006. An appeal was also originally made to St Albans Crown Court that was subsequently withdrawn.[3]In March 2006 a fresh application in respect of a shotgun certificate had been made by the claimant to Hertfordshire. There may have been some defect with the initial form but that was subsequently corrected. By April the matter was assigned by the manager of the Firearms Certificates Division of the Hertfordshire Police for re-investigation. The fact that a fresh application was outstanding but had been apparently rejected on residence grounds was noted by Mr Justice Leveson (as he then was) on 25 May 2006 when considering the initial review against the previous application.[4]The material that demonstrates the response on behalf of the Chief Constable of Hertfordshire is as follows. First, on 27 April 2006 following some attempts to contact the claimant at his address at 7 Hillside, Hatfield, Hertfordshire - the address I note that he had given on the previous application and where he had been interviewed twice by Hertfordshire officers in connection with the previous application - there was this response given in the first of three letters:
"I refer to your application of 5 March 2006 for a shotgun certificate and I note you have supplied information confirming you are resident in Dumfries and Galloway, the location of your family home. In accordance with the Firearms Act (as amended) you must apply to the Chief Constable of Dumfries and Galloway for a shotgun certificate."
[5]We have been referred to the application. It is accepted that nowhere does it say in the application form that he was resident in Dumfries and Galloway. He did give information as to a doctor who was resident in that jurisdiction and referees who had connections with that area, but he had himself declared his home and place of residence for the purpose of this application to be his address at 7 Hillside, Hatfield. This was residential accommodation that he had moved into and had been supplied in connection with his employment in 2004 and had remained there in the same status since.[6]To the letter of 27 April the claimant responded on 2 May. He said:
"Some people may think it bizarre that you have written to me at Hatfield to say I don't live here. After a one-week holiday back at my family home, I am now apparently a Dumfries and Galloway resident."
He explained that he had been on holiday. He explained:
"I pay rent to occupy the above address [7 Hillside, Hatfield] and reside there more than 320 days a year which is why all my correspondence is addressed to me here. Previous correspondence from Hertfordshire police and the court is addressed to me in Hatfield and this is the address I gave when I moved out of Essex. I have been visited at this address by two firearms inquiry officers who can doubtless confirm that I live here."
[7]To that letter of 2 May there was the decision of 22 May 2006 which is the closest the claimant has had to a decision in respect of this second application. That letter reads as follows:
"Dear Mr Beck The Firearms Act 1968 states that an application for grant of a firearm or a shotgun certificate should be made in the prescribed form to the Chief Officer of Police for the area in which the applicant resides. If applicants are staying only temporarily in a police area and reside elsewhere they should be referred to the Chief Officer of Police for the area of their usual residence. 'Residence' usually means having accommodation available for use and not, for example, rented. I have information that during the time you were in Essex you resided at more than one address. In your letter of 2 May 2006 you confirmed 7 Hillside, Hatfield was rented accommodation. In addition, in your previous correspondence you supplied information of residency at Dumfries and Galloway. It is appropriate that you need to apply to the Chief Officer of Police of Dumfries and Galloway and not to apply to Hertfordshire Constabulary."
[8]The final letter dealing with this matter was on 14 August 2006 in which Mr Taylor, the Firearms Licensing Manager on behalf of Hertfordshire police, stated:
"Please find enclosed all correspondence. The Chief Constable refused your application and this decision is final."
The reference to the chief constable refusing the application and a previous reference to "I remind you that your application has been rejected on 22 May 2006", it is accepted that both refer to the decision on the first application that was made, first, to Essex and then transferred to Hertfordshire and which ended in the dismissed judicial review proceedings, the appeal having been withdrawn.[9]On the basis of this material the defendant submits that is has lawfully refused this application on residence grounds and any challenge should be made by way of appeal to the Crown Court. The simple question for this court is whether there has been a decision in the second application for a shotgun certificate that would entitle the claimant to appeal against a refusal of a shotgun certificate pursuant to the statutory powers of appeal.[10]Section 44 (1) of the Firearms Act 1968 provides:
"(1) An appeal against a decision of a Chief Officer of Police under Sections 28A, 29, 30A, 30B, 30C, 34, 36, 37 or 38 of this Act lies in England and Wales to the Crown. (2) An appeal shall be determined on the merits and not by way of review."
[11]The reference to those provisions of the Firearms Act deal with the substantive criteria for grant of the certificates, namely whether the Chief Constable is satisfied that the person concerned is a proper person to hold such a certificate or whether, by contrast, is satisfied that there would be risks to safety of the public if such a person had such a certificate. It is not necessary to lengthen this judgment by reciting each of those provisions. However the issue of residence and where a person is applying for a certificate arises under Section 26A (for Firearms certificates) and 26B (for shotgun certificates). Section 26B of the Firearms Act reads:
"The application for grant of a shotgun certificate should be made in the prescribed form to the Chief Officer of Police for the area in which the applicant resides who shall state such particulars as may be required by the form."
[12]It would therefore appear on the plain words of Parliament that the appeal to the Crown Court under Section 44 is concerned with decisions to grant or refuse certificates and not with decisions whether the applicant has made an application to the appropriate authority under Section 26B on grounds of residence.[13]With that statutory background, I will consider whether there has been a decision made in respect of this firearms certificate as opposed to merely an indication by the manager of the firearms unit that it was not for the Hertfordshire police to make a decision on the certificate but for some other police force.[14]In my judgment it is plain that there has been no decision in respect of the firearms certificate.[15]First, none of the three letters to which reference has been made indicates a substantive decision has been made in respect of this application. Secondly, it is apparent from the witness evidence filed on behalf of the defendant Chief Constable that the manager has no authority to make decisions on firearms applications. They are serious matters for which there are delegated arrangements whereby the manager refers it to a senior officer of the Hertfordshire Police Force who makes a decision. Such a decision was made in respect of the previous application by Chief Superintendent Otway but no such decision has been made by Chief Superintendent Otway in respect of the 2006 application. Thirdly, in my judgment, decisions as to where the claimant is resident as opposed to whether he should have a firearms certificate are not decisions within the meaning of Section 44 of the Firearms Act but are preliminary matters and therefore would not, in the ordinary course of events, be subject to an appeal to the Crown Court, but certainly would be suitable for a challenge by way of judicial review if there was an unlawful refusal to determine an application and reach a decision upon it.[16]Finally, in my judgment, in the three letters under consideration the manager was purporting to reach a conclusion of law as to what a person has to do to be resident within the area of a police authority rather than giving particulars of a reasoned decision based on factual investigation in the particular case that the police authority has no competence to proceed. In particular, the letter of 27 May appears to make it a necessary part of the test to be resident within Hertfordshire, that one owns property rather than one rents it. That manifestly cannot be the test for whether one is ordinarily resident in that area.[17]"Ordinarily resident" is something the courts have looked at time and time again in many different contexts. It usually requires settled a presence requisite to establish some degree of residence there. Rented accommodation in connection with employment manifestly is capable of being a place of residence for the purpose of a firearms certificate. It is not necessary to sever connections with other parts of the country in order to make a proper application to the relevant police authority.[18]For those four reasons, in my judgment, this is an application which has been properly made but there has been no substantive determination of it. It therefore remains outstanding and should be determined, according to law, on the merits.[19]On the merits there may well be a number of responses open to the chief constable to make. But I say nothing more about that because, in my judgment, we have not reached that stage. Insofar as he has declined so far to give consideration of the merits, in my judgment, that is based on erroneous reasoning as to what is residence.[20]There is on the papers nothing that I can see to support any evidential case that he could not be resident or is not resident in Hertfordshire. He was treated as resident in Hertfordshire previously on a previous application and there, as far as I have been told, has been no material change of circumstances. Of course if fresh evidence comes to light it may be able to reach a different decision on that matter.[21]On the material before this court, first, there has been no determination on the merits; secondly, a wrong decision as to what constitutes residence in law for the purpose of engaging the application; thirdly, no basis from which a reasonable chief constable, operating in this case through his firearms certificate manager, could conclude he was not resident in Hertfordshire.[22]I would accordingly allow this application for judicial review and decalre that the application remains undetermined and should be determined properly by the Chief Constable. In the event of an adverse decision it would then be open to the claimant to proceed by way of appeal to the Crown Court which is the appropriate route to be taken if there is any dispute as to whether he is or is not a fit and proper person to own a shotgun certificate.

LORD JUSTICE MAURICE KAY: I agree. I find it inexplicable that rather than procure a decision on the merits the police officers who considered the claimant's application chose to concentrate instead on ill informed quibbles about the claimant's residence. The claimant was and is entitled to a substantive decision on the merits by the chief constable's duly authorised agent. He has not received one.

[24]It is plain from the totality of the material before us that if a substantive decision had been taken by Chief Superintendent Otway it would have been taken by reference, amongst other things, to advice that the claimant is not a suitable person. However even if it is highly likely that he would have reached a decision adverse to the claimant the claimant would then have been in a position to exercise his right of appeal to the Crown Court under Section 44 in the hope that he might persuade the Crown Court to take a more favourable view on the merits.[25]I agree that the application should be granted and I agree with my Lord as to the form of relief. Accordingly, there will be a declaration.[26]MR DREW: I would ask for costs.[27]MR BURKETT: Efforts were made last week to offer exactly what has been ordered, but unfortunately it was on the basis of both sides paying their own costs. Therefore, I cannot resist that application.

LORD JUSTICE MAURICE KAY: We will order that the defendant pay the claimant's costs to be assessed if not agreed.