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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Burke, R (on the application of) v Secretary Of State For Home Department [1998] EWHC Admin 913 (02 October 1998) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/913.html Cite as: [1998] EWHC Admin 913 |
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See also: [1999] EWCA Civ 989
1. MR.
JUSTICE POPPLEWELL: This is an application by the applicant in person to
challenge the decision of the Chief Constable of Thames Valley and the Home
Office refusing him a certificate or permit to hold a firearm for the purpose
of self-defence.
2. The
applicant seeks judicial review on two grounds. Firstly, he says that the
provisions of the Firearms Act 1968 are contrary to the rights conferred on
citizens by the Bill of Rights and that the Firearms Act has not repealed the
Bill of Rights; secondly, that from the correspondence, it appears to suggest
that the Secretary of State has a policy that on no account will a permit be
granted for personal protection purposes.
"A person who has obtained from the chief officer of police for the area in which he resides a permit for the purpose in the prescribed form may, without holding a certificate under this Act, have in his possession a firearm and ammunition in accordance with the terms of the permit."
"Subject to section 5A of this Act, a person commits an offence if, without the authority of the Secretary of State, he has in his possession, or purchases or acquires, or sells or transfers..."
4. It
is not in dispute that the Bill of Rights gave the citizen the right to hold
arms. The question which is posed is whether the Firearms Act, which does not
expressly repeal the Bill of Rights, should be taken implicitly so to have
repealed. The general position in law is this. Where a later enactment does
not expressly repeal an earlier enactment which it has power to override, but
the provisions of the later enactment are contrary to those of the earlier, the
latter by implication repeals the earlier. The commentary in Bennion on
Statutory Provisions says that:
"If a later Act makes contrary provision to an earlier, Parliament, though it has not said so, is taken to intend the earlier to be repealed. The same applies where a statutory provision is contrary to a common law rule."
5. I
have no doubt that the Firearms Act 1968, which is a successor to a number of
Firearms Acts going back to 1920, was intended to repeal the right of the
citizen to bear arms. Accordingly, in my judgment, the applicant is governed
by the Firearms Act 1968 and reference to the Bill of Rights will not assist him.
6. The
second point is the question of the Secretary of State's approach. His letter
dated 2nd October 1997 reads as follows:
"Thank you for your letter of 24 September 1997 about the Secretary of State's authority to possess section 5(1)(aba) prohibited weapons under section 5 of the Firearms Act 1968 (as amended).
7. There
was a further letter from the Home Office dated 30th April 1998, in which the
Secretary of State said:
"The Secretary of State gives careful consideration to the grant or renewal of authorities to possess prohibited weapons and I regret to inform you that having considered all the circumstances of the application he has decided not to grant an authority."
"Applications made for other reasons are given careful consideration, however unless there are exceptional circumstances involved, an authority will not normally be granted."
9. Mr.
Burke says that that is a change from the previous letter in which they have
set out a blanket policy not to grant the applicant permission for personal
protection. He drew my attention to a letter addressed to a Mr. Berry, which
says that it is the policy of the government not to allow possession of
firearms for personal protection. Mr. Burke does not suggest that he has been
under any threat which would give rise to the need for personal protection.
Although a challenge can sometimes be made to a blanket policy which is
operated without personal consideration, the letters appear to mean that the
Secretary of State does consider the personal position, namely those who wish
to trade, but he will not grant authority for self-defence. In the instant
case, it is clear that there is no threat to the applicant, so that if the
policy itself were to be challenged, it is clear that the Secretary of State
would not in any event grant permission in the instant case because there would
be no good reason for it.
10. For
all those reasons, this is an application which I shall not grant because it
would be doomed to failure if I granted leave.
