Noble v. Chief Constable Northern Constabulary [2011] ScotSC 20 (21 April 2011)

Sheriffdom of Grampian, Highland and Islands at Inverness

Case No: B295/10

JUDGMENT

SHERIFF MARGARET M. NEILSON

in causa

NIGEL ALLAN NOBLE,

residing at Firthview, 7 Ruisaurie, Beauly,

IV4 7AJ

PURSUER

against

IAN LATIMER,

Chief Constable,

Northern Constabulary Head Quarters,

Old Perth Road, Inverness, IV2 3SY

DEFENDER

Act: Mr. J. MacDonald, Advocate

Alt: Ms. V. Leslie, Solicitor

INVERNESS, 21 April 2011

The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

1. The pursuer lives at Firthview House, 7 Ruisaurie, near Beauly. He runs various businesses, including a construction company, a civil engineering company, a cleaning company, a property development company and a farming business.

2. His house sits in five acres of land and is accessed by a driveway from the nearby B-road. The nearest houses to the pursuer's property are around 10 to 15 minutes walk away or about 200 yards as the crow flies. There are also four or five static caravans and a workshop in the vicinity, also within a 10 to 15 minute walk from the pursuer's house.

3. On 23^rd May 2010, police officers Jim Renwick and Yvonne Dalgetty, acting on intelligence obtained from a confidential source which suggested that firearms and shotguns were being stored insecurely at the pursuer's house, visited to inspect the property.

4. The police officers drove up the driveway and parked outside the house. The front garage doors were open. The back door to the house was open and the internal door from the hall to the garage was open.

5. After being invited into the house, the police officers were taken to the loft by the pursuer and were shown the gun cabinet which was empty. The pursuer then took the police officers to his bedroom where they found two shotguns and two rifles lying on the mattress on the bed. The shotguns were unbroken and the bolts were in the rifles. The door to the bedroom from the hall was ajar and the patio doors from the bedroom to the balcony were open.

6. Police Constable Jim Renwick broke the shotguns to ensure that they were safe and unloaded, and removed the bolts from the rifles for the same reason. He asked the pursuer to produce any ammunition he had. The pursuer produced some boxes of ammunition from a safe within the mirrored wardrobe in the bedroom. Following a touch search within the safe, Police Constable Jim Renwick found another box of ammunition which had not been removed by the pursuer.

7. None of the weapons were clean inside. No cleaning materials were found in the bedroom. There was no smell of furniture polish in the bedroom. The pursuer showed the police officers some furniture polish ("Pledge") which was in a cupboard under the sink in the kitchen.

8. The police officers asked the pursuer to produce his firearms and shotgun certificates which he did from a room nearby which served as a spare bedroom and office. Neither certificate was signed.

9. The pursuer was subsequently prosecuted in the Sheriff Court for keeping firearms insecurely and failing to sign his certificates. Ultimately, after sundry procedure, the Crown accepted pleas of not guilty to storing the firearms and shotguns insecurely. The pursuer pled guilty to failing to sign his certificates and was given an absolute discharge.

10. Prior to obtaining his shotgun licence in 2007, the pursuer was reported to the police by Mr Andrew MacIntosh for allegedly scratching his car with a sharp implement on 4^th May 2007 at Kirkhill Primary School. The report was made on 14^th May. Mr MacIntosh is the pursuer's ex-wife's new partner. The pursuer was interviewed under caution by the police. He told the police he would like to batter Mr MacIntosh. As there was no evidence other than the complainer's statement, no further action was taken.

11. The pursuer reported Mr MacIntosh to the police for drink driving on 12^th May 2007. As a result police traced Mr MacIntosh and spoke to him. He submitted to voluntary testing and was found to be completely sober. When making the report the pursuer did not give his name but made the report anonymously. The call was subsequently traced to him and the police spoke to him. The call was treated as malicious and the pursuer received a warning.

12. When the pursuer received his shotgun licence in 2007, it was with a warning letter dated 31^st July 2007 (Production 6/1/1) which stated that the shotgun certificate was being granted with a formal warning.

13. On or about 3^rd September 2008 there was an altercation between the pursuer's son and another boy at his school. This was dealt with satisfactorily by the school. On 8^th September, the pursuer attended at the school and threatened a 10 year old boy. The incident was reported to the police. The pursuer was cautioned and charged with breach of the peace although no further action was subsequently taken.

14. Following the incident with the 10 year old boy, the pursuer received a further letter dated 7 October 2008 (Production 6/1/2) from Northern Constabulary Licensing Department indicating that consideration was being given to revoking his certificates and inviting him to express his views prior to any decision being taken. He did not respond. By letter dated 17^th November 2008, (6/1/3) the pursuer was advised that a decision had been taken to allow him to retain his firearms and shotgun certificates with a further formal warning.

Finds in fact and law:

1. The pursuer, being of intemperate habits and unfit to be entrusted with a firearm should not have his firearms certificate reinstated.

2. The pursuer, being someone who cannot be permitted to have a firearm without danger to the public safety or peace, should not have his firearm certificate reinstated.

3. The pursuer, being someone who cannot be permitted to have a shotgun without danger to the public safety or peace, should not have his shotgun certificate reinstated.

THEREFORE, Sustains the defender's third and fourth pleas in law, Repels the defender's first and second pleas in law as unnecessary, Repels the pursuer's plea in law, Refuses the appeal and Dismisses the Summary Application, Finds the pursuer liable to the defender in the expenses of the cause.

Sheriff Margaret M. Neilson

Sheriff of Grampian, Highland and Islands at Inverness

Note

Introduction

[1] This was a proof in a summary application which I heard over four days, 1^st, 18^th, 25^th and 28^th March 2011. For the pursuer I heard evidence from the pursuer himself, Mr Ronald Simpson, Mr Edward MacKay and Mrs Tracy Buchanan. For the defender I heard evidence from Police Constable Jim Renwick, Police Constable Yvonne Dalgetty and Temporary Deputy Chief Constable (formerly Chief Superintendent) Andy Cowie, all of Northern Constabulary.

[2] Following a visit by police officers to the pursuer's house on 23^rd May 2010, after receiving intelligence from a confidential source that the pursuer was storing firearms and shotguns insecurely, the pursuer's firearms and shotgun certificates were revoked. This summary application is the pursuer's appeal against that decision taken by Temporary Deputy Chief Constable Cowie, while in his previous position as Chief Superintendent, under delegated powers from the defender.

[3] The relevant legislation is the Firearms Act 1968 ("the Act"). In terms of Section 44 (2) and (3) of the Act this appeal is not simply a review of the decision made by Temporary Deputy Chief Constable Cowie but rather the court is required to come to a decision on the merits of the case. That is to say, the court can take account of evidence which was not before Temporary Deputy Chief Constable Cowie when coming to its decision. For that reason, and because the pursuer's counsel himself put the credibility and reliability of the defender's witnesses in issue, I have found it necessary to comment on the evidence given by the various witnesses and their credibility and reliability in some detail. The sections of the Act dealing with revocation are 30A (for firearms) and 30C (for shotguns) and these are considered later in my judgment.

Submissions

Pursuer

[4] For the pursuer, it was submitted that in terms of Section 44 of the Act, any appeal has to be determined on the merits (and not by way of review). The legal tests for revocation of firearms and shotgun certificates were different and were contained at Section 30A and Section 30C of the Act. The question of intemperate habits is peculiar to a firearms certificate. I was referred to two cases, Luke v. Little 1980 SLT (Sheriff Court) 138 and Spencer Stewart v. The Chief Constable of Kent 1989 Cr. App. R. 307.

[5] I was invited to regard the pursuer and his witnesses as credible and reliable and where there was a conflict to prefer the pursuer's evidence over the defender's witnesses. As the pursuer was doing nothing other than cleaning his guns, no offence was committed and the pursuer only left the bedroom because of the arrival of the police. There was a considerable amount of evidence that the pursuer regularly cleans his guns on a Sunday and if it was believed that he was cleaning the guns with "Pledge" that would not amount to insecure storage. Mr MacKay, the neighbour and Mrs Buchanan, the pursuer's partner, were particularly material witnesses and they and Mr Simpson were all independent and supported the pursuer's version of events. The defender's evidence, it was submitted, should be largely disregarded because of discrepancies between the defender's evidence and that of the pursuer in relation to three matters in particular; the speed or urgency of the approach of the police car on arrival, the suggestion by the two police officers of the presence of an older lady washing her car and the fact that P.C. Renwick gave evidence about a previous incident in October 2005 for which there was no record. (I should mention at this stage that it was not clear to me why, when considering the admissibility or otherwise of evidence in relation to any incident in October 2005, I should find that this affected the credibility or reliability of P.C. Renwick as it seemed to me that if the pursuer's objections in relation to this chapter of evidence were upheld (it had been allowed under reservation so as not to delay or further lengthen the proof unnecessarily) I should simply just ignore that chapter. Despite raising this matter with the pursuer's counsel and listening to his submission I am still not entirely sure why he felt that I should consider that any defect in respect of the pleadings should mean anything other than the evidence being ignored.)

[6] Further submissions were made in relation to the various "incidents" concerning the pursuer's actings with Mr MacIntosh and the 10 year old boy and how he did not accept the police version of events. The incidents in 2007 and 2008 were too old to be considered by the police when making the decision to revoke. It could not be demonstrated that the pursuer was of intemperate habits as P.C. Dalgetty had said that he was calm when they attended. On the basis that the property was rural and to a certain extent isolated it could not be suggested that there was an issue of security. The pursuer had a meticulous approach to his lifestyle in general, kept his guns in his cabinet and was simply cleaning his guns. The Section 30A and 30C tests were not met and therefore it was open to the court to revisit the matter and decree should be granted in terms of the summary application.

Defender

[7] The defender's solicitor had helpfully lodged written submissions. It was accepted that in terms of Section 44(3) of the Act, the court can take in to account all relevant matters even if they were not before the person delegated to make the decision to revoke by the Chief Constable. The court was entitled to reach a view on the evidence and substitute that view for that of the Chief Constable. The two tests were outlined. In relation to the firearms certificate (Section 30A) it was submitted that both tests had been met but that if the court was satisfied on either one of the grounds the appeal should be refused.

[8] The pursuer was of intemperate habits given the animosity between the pursuer and his ex-wife's new partner and his comments made to the police that he would like to "batter" him. Reference was also made to the false allegation made by him of a criminal act which was considered to be malicious. Notwithstanding a formal warning in July 2007 the pursuer came to the attention of the police again in relation to an allegation of threatening a 10 year old boy and a further formal warning was issued. This amounted to the pursuer acting in an unrestrained manner and being unfit to be entrusted with a firearm in terms of section 30A (2)(a) of the Act.

4. In terms of section 30A (2)(b) of the Act it was submitted that the weapons were being stored in an insecure manner and were easily accessible by any persons wishing to access them. Intelligence was received that the pursuer's weapons were being stored insecurely and when the police attended they found just that. There was no evidence of the weapons being cleaned. There were no cleaning materials present and the barrels of all the weapons were dirty. Other properties were accessible by foot, there were other people in the vicinity and the pursuer had a cavalier and dismissive attitude in failing to sign his certificates or notify the police of a change of address. For these reasons, it was submitted, the pursuer was someone who cannot be permitted to have a firearm without danger to the public safety or the peace.

[9] In relation to the shotgun certificate, only the second test applied in terms of section 30C of the Act. The defender's witnesses were experienced officers with genuine concerns regarding the suitability of the pursuer being a certificate holder and those concerns were reasonable. It had been suggested by the pursuer that the visit on 23^rd May had been specifically planned to catch the pursuer while cleaning his weapons but this was not accepted by the defender and was not supported by the facts. There were a number of inconsistencies in the evidence of the pursuer and submissions were made on the reliability and credibility of the other witnesses who gave evidence for the pursuer. It had been established that the pursuer was of intemperate habits and was otherwise unfit to be entrusted with a firearm and cannot be permitted to have a firearm in his possession without danger to the public safety or peace. Likewise he could not be permitted to possess a shotgun without danger to the public safety or peace.

[10] In relation to the case of Spencer Stewart v. The Chief Constable of Kent it was noted that this case was issued prior to the amendments to the Firearms Act which specifically define the appeal as being one on the merits and that on the basis that the court was able to take account of all evidence past and present and the rationale in that case was flawed. If that rationale were followed any actions which did not involve the use of a shotgun or firearm could not be regarded as relevant and for example if someone stabbed someone with a knife they could keep their certificate. This was clearly incorrect. Decisions of other courts were of limited assistance and the specific facts and circumstances of each case had to be looked at on the merits.

[11] In relation to expenses, they should follow success if the defender succeeded but if the pursuer succeeded there should be no expenses due to or by either party on the basis that the defender was performing an important function considering and reviewing certificate holders and should not feel pressurised or influenced by the potential for awards of judicial expenses being made against him in carrying out this duty. Even if the court took a different view, it did not mean that the defender's decision in itself was unreasonable and he should therefore not be penalised for performing his obligations. Reference was made to two cases, Nicol v. Chief Constable, 30^th July 1999 unreported and Chief Constable of Sussex v. Chichester Crown Court 2003 WL 117160 in relation to the question of expenses in the event of the pursuer succeeding.

The evidence

[1] The first witness was the pursuer himself. His position appeared to be that the police officers, in particular P.C. Renwick, somehow had it in for him. He tried to discredit the Police Constable wherever he could in his evidence. Somewhat bizarrely when he was asked if he had any animosity towards P.C. Renwick, in examination in chief, he replied "I drive a Porsche". In re-examination he said that he thought P.C. Renwick might be alleging that the weapons were stored unsafely because he had challenged the pursuer for speeding previously. Nothing appeared to be made of this allegation by his counsel in submissions and it appeared to me to be an example of the pursuer exhibiting a lack of responsibility and blaming everyone else, in particular P.C. Renwick, for the position he found himself in. For reasons that will follow, it seemed to me that both police officers who attended on the day in question, were in fact both credible and reliable in their evidence. Their evidence was largely consistent and where there were variations these were minor and such that would be expected some ten months after the event.

[2] The pursuer's evidence, in contrast, was riddled with inconsistencies and appeared to be both rehearsed and exaggerated at times. The police officers had nothing to gain by lying about matters as was suggested by the pursuer's counsel, whereas the pursuer may well have had very good reasons not to be telling the truth. Where there were differences between the evidence of the pursuer and that of the two police officers, I have concluded that the police officers' evidence is to be preferred.

[3] The pursuer's evidence was heard over a two day period. I did not find him to be a totally credible and reliable witness. At times he seemed to exaggerate considerably. He was very keen to tell his own story and on had to be reminded repeatedly to answer the questions he was asked. He seemed to have his own agenda. He was very keen to blame everyone else for everything that had happened. He blamed his ex-partner for the fact that he had not had contact with his son for 11/2 years and that the court case relating to that cost a lot of money. He blamed Emma Renwick for filing his certificates and failing to get him to sign them (although it became clear later that she did not in fact even work for him at the time). He blamed his "partial dyslexia" for his failure to sign the certificates notwithstanding the fact that he had signed previous certificates.

[4] The pursuer appeared eager to impress, repeatedly mentioning the size and cost of his house and dropping in names of prominent people in the area who were not relevant to his case. He spoke of his weapons being very expensive. He was keen to emphasise how meticulous and fussy he was (although this did not seem to sit particularly well with him cleaning weapons on his own bed). He insisted on referring to his balcony as his "security balcony" which seemed an odd turn of phrase. He repeatedly spoke of the gun cabinet being in the loft. This caused condensation on the weapons, which he was unhappy about and he blamed P.C. Renwick for this as he had "insisted" he put it there. (P.C. Renwick, in evidence, agreed that he had suggested he put it there but that it was entirely a matter for the certificate holder, provided the security was adequate). The fact that he kept mentioning the condensation supported the conclusion that he did not in fact keep the weapons in the cabinet because he seemed to think that it was not fit for that purpose. His own evidence was that there was another gun cabinet in the office/bedroom on the same floor as his bedroom. He never gave a satisfactory explanation as to why, if that cabinet was there and did not have a condensation problem, he did not use it rather than the one in the loft. He presented with a casual and "laissez faire" attitude to firearms and shotguns and seemed to resent the police for carrying out their duties. I would expect most licence holders to actively welcome police checking out any intelligence suggesting there was unsafe storage of weapons as presumably publicity about any accidental or deliberate shootings or criminal activity arising from such unsafe storage might cause those complying with the legislation to get a bad name by association.

[5] The pursuer repeatedly criticised P.C. Renwick, for example for being abrupt and for refusing to take off his boots because his house was expensive. He was keen to volunteer criticism such as saying that the police did not have a warrant, before accepting that they did not need one and he was willing to let them in to check the weapons in any event. I do not accept his account of taking the police to the bedroom first and I prefer the police account that he took them to the loft first. The police had no reason to lie about this. They would gain nothing by making this up. They were consistent in their evidence. The pursuer was also inconsistent at times. For example, when challenged in cross-examination, he changed his position and said that when he had said that he had been cleaning his weapons he actually meant he had been polishing them. Again in cross-examination he got very confused about what his plans were on the day in question. At one point he said that he was intending to put the firearms back in the loft yet at another he maintained he was still going to clean the shotguns. He had earlier said in chief that one of the shotguns needed "rodded" as he had used it to shoot crows the previous week. There were other apparent contradictions in his position. He repeatedly claimed to be extremely meticulous about his house and his life in general yet he appeared not to clean his weapons after they were used and it seemed odd that someone so meticulous would clean his weapons on the unprotected mattress on his own bed.

[6] He claimed that his dyslexia affected his ability to sign the certificates yet he accepted that he signed contracts for his various businesses and had signed previous certificates. It was clear from his evidence that he did not accept he should have got any warning letters. He gave the impression that he totally disregarded them. At times he was evasive when answering questions and at times gave the impression he pretended not to understand them. He displayed a certain amount of arrogance at times saying that he could spend as much time as he wanted with his weapons as there were "no rules".

[7] For all of these reasons I do not find the pursuer an entirely credible and reliable witness and where his evidence differs from that of the defender's witnesses I have preferred their evidence.

[8] Mr Ronnie Simpson could not add very much. He was clearly a loyal friend of the pursuer. It was difficult to attach too much weight to his evidence in chief as much of it was in response to leading questions which were asked despite objections being taken and reminders from the bench. When he did give evidence spontaneously for example about the nearby "gorge", it was clear that there was in fact no problem in crossing it. He knew the pursuer very well, since they were young boys. He stayed regularly at his house, perhaps four to eight times a year for long weekends. In cross examination he conceded that the pursuer did not say he was going to clean his weapons on the day in question. He likewise conceded that he would not know if the pursuer kept the weapons in the bedroom rather than in the gun cabinet as he only visited a couple of times a year. It is not particularly clear how often Mr Simpson actually visits but his evidence ultimately did not support the pursuer's position. He could not remember whether the doors in the house were locked or not and by the time he returned from his walk the police had already been. He also said that the pursuer had brought the weapons down in two lots of two, which contradicted the pursuer's own evidence that he brought them down four at a time. He added little to the case.

[9] Mr Edward MacKay is clearly a friend of the pursuer and is also a close neighbour. He was guarded when responding to questions and thought carefully before replying. He did not appear spontaneous and his evidence appeared somewhat rehearsed at times. I was asked to accept his evidence in relation to firearms usage in preference to that of the police but given that he was not an expert although he had worked as an assistant gamekeeper in the past, it seemed to me that while he was trying to do his best for his friend the evidence of the experienced police officers was to be preferred. It appeared strange to me that Mr MacKay appeared to remember every detail of the doors in the pursuer's house on the day in question and whether they were locked or not, notwithstanding this was a casual visit and he had simply dropped in. He was keen to volunteer information, for example, about the pursuer's dyslexia. All of this information however seemed to have come from the pursuer himself. The rehearsed manner in which Mr MacKay gave his evidence and the fact that a great deal of what he said was based simply on what he has been told by the pursuer leads me to attach little weight to it.

[10] Mrs Tracy Buchanan has been the pursuer's partner for a number of years. She cannot be considered to be independent. Her evidence often appeared rehearsed. At times it was also confused. She said that she had nothing to do with weapons as she did not like them, yet she appeared to feel able to speak about them in some detail. There were numerous inconsistencies in what she said for example in relation to the pursuer's storage of his weapons. For these reasons where her evidence varies from that of the defender's witnesses I have preferred that of the defender's witnesses.

[11] The Temporary Deputy Chief Constable of Northern Constabulary Andy Cowie, when Chief Superintendent, was delegated to consider the question of revocation of firearms and shotgun certificates by the Chief Constable and made the decision to revoke the pursuer's certificates. He had never seen anyone get two warning letters before. He had been involved in the administration of firearms legislation since 1994. He was responsible for firearms incidents and was trained as a tactical or silver commander since 2003 and a strategic firearms commander since 2009. In that role he has to consider the best and most appropriate response to firearms incidents. He was responsible for authorising any armed response in Northern Constabulary. He was an impressive witness who explained his thought processes clearly and it was obvious that he had examined all of the evidence available to him and considered what options were available. He would have asked for more investigations to be carried out if he had not been satisfied that the information available was adequate. He gave a very clear account of why he discounted the other options available to him such as giving a further warning letter, taking no action or suggesting that the pursuer voluntarily hand in his weapons. He made it clear what evidence he had considered, in particular the fact that the weapons were stored insecurely, the doors were open, there was open access, the weapons could be subject to opportunistic or planned criminal activity and they were lethal barrelled weapons. In his files he had available to him the whole history of the pursuer's firearms and shotgun certificates. He was aware that the pursuer had already received two warnings which were generally given to ensure public safety and to give certificate holders the opportunity to demonstrate the ability to behave appropriately. Of particular concern to him was the intemperate behaviour of the pursuer in relation to Mr MacIntosh and the 10 year old boy and the issue of public safety. He had weighed up his concern for public safety against the rights of the individual. In reaching his decision he considered a previous verbal warning given to the pursuer when he failed to report a change of address, the animosity towards Mr MacIntosh (two incidents) which resulted in a written warning, the incident with the 10 year old boy (where the pursuer's behaviour seriously aggravated the situation) which resulted in a further written warning together with the main incident where weapons were found insecure in May 2010. He took account of the fact that there were no cleaning materials present, that the weapons were dirty, that cleaning weapons tended to be a messy business and it would be highly unusual to clean firearms or shotguns in a bedroom, particularly on bedding. He considered the most appropriate and proportionate response and took the view that revocation was the most appropriate, particularly having taken cognisance of the fact that the decision could be appealed to a sheriff. His primary consideration was to ensure public safety and peace given that lethal barrelled weapons were involved.

[12] It was clear to me from his evidence that he had considered all of the information available and had come to a decision which could not in any way be criticised in law. If this was an appeal which simply reviewed his decision, the appeal would go no further. It is an entirely reasonable and justifiable decision supported both by the facts of the case and the law. Clearly, however, in terms of Section 44 of the Act, that is not my function in relation to this summary application and I require to consider all of the evidence before me. I have concluded, however, that I can attach significant weight to Temporary Deputy Chief Constable Cowie's evidence. The fact that such an experienced officer, who I found to be a credible, reliable and impressive witness, who has clearly carefully weighed up all issues before coming to his decision, took the view that the pursuer's certificates should be revoked, has to carry significant weight in my consideration of the matter.

[13] Police Constable Jim Renwick also impressed me when giving his evidence. He is a very experienced police officer with many years experience, including 15 years as a firearms officer. If he did not know the answer to any question he said so. He was able to give a perfectly reasonable and plausible explanation for not having attended on 20^th May when the intelligence was first received by the police (They needed two officers to attend for corroboration in the event of any criminal prosecution and they went as soon as two officers were available). In his firearms duties he had undergone initial intensive training and undergoes further refresher training every year. On that basis I preferred his evidence and that given by Temporary Deputy Chief Constable Cowie in relation to the use of firearms and shotguns to that given by the pursuer or his witnesses who have less experience and no such expertise. He appeared thoughtful and gave considered responses when asked general questions such as how many static caravans were in the vicinity. He was straightforward in his evidence and remained patient, clear and calm throughout repetitive and sometimes over-dramatic questioning. Despite being cross-examined at length, his evidence was clear on all of the fundamental and material aspects of the case upon which he spoke and I accept him as a credible and reliable witness.

[14] Police Constable Yvonne Dalgetty likewise impressed me as a witness. She was straightforward. She was willing to give the pursuer the benefit of the doubt and for example, very fairly in examination in chief volunteered that she thought that the ammunition that P.C. Renwick found in the safe after the pursuer had said he had brought everything out, was a genuine oversight by the pursuer as he had seemed very flustered and uncomfortable when they had asked to search the safe. I found her to be both credible and reliable.

[15] Various chapters of evidence have led me to make these assessments of the witnesses. I will deal with them individually.

[16] The pursuer claimed to use "Pledge" to clean his weapons. No-one else who gave evidence suggested that this was appropriate in any way. Mr MacKay got the closest to doing so. He did not use it himself but claimed that he knew others who did, although he gave no examples of anyone he knew doing it or indeed how he knew. The Temporary Deputy Chief Constable, a very experienced firearms officer, queried the cleaning of firearms and shotguns with "Pledge" with the licensing section of Northern Constabulary as he had never heard of it being used. Neither had they. P.C. Jim Renwick had never heard of "Pledge" being used to clean weapons. He very fairly conceded in cross-examination that it might be possible but given these two police officers' extensive experience in relation to firearms it would certainly seem that using "Pledge" to clean firearms or shotguns at best cannot be particularly common. The Pursuer's reason as stated in court for using "Pledge" polish was inherently implausible. He explained that "Pledge" was made by Johnson (sic) and that therefore it had the same properties as other proprietary products produced by the same company which were actually manufactured for the purposes of cleaning firearms and shotguns. I do not accept that the pursuer was using "Pledge" to clean his weapons.

[17] The pursuer's position was that he was cleaning his weapons in his bedroom although there were no cleaning materials in the bedroom when the police arrived. He showed them "Pledge" polish in a kitchen cupboard under the sink when he was asked where the materials were. The two police officers specifically said that there was no smell of polish in the bedroom. In examination in chief Mr Simpson said that as he was leaving, the pursuer had the loft ladder hatch open and was coming down with the weapons in his hand. He was leaving to go for a walk at that point and as he got to the back door he opened it and Mr MacKay was there so he let him in. Given that Mr Simpson, Mr MacKay and Mrs Buchanan all say that Mr MacKay entered the house just as Mr Simpson was leaving and Mr Simpson said to Mr MacKay that the pursuer was bringing his weapons down at that point it is therefore difficult to see how the weapons could possibly have already been cleaned by the time that Mr MacKay got upstairs. There was no suggestion of any delay in him getting upstairs. It is clear that Mr Simpson's position on this and Mr MacKay's position on it are totally inconsistent and both cannot be right. In his evidence Mr MacKay claimed that the cleaning had already been done and that there was a very strong smell of polish in the bedroom. He opened the French windows to get rid of the smell but did not see the pursuer cleaning the weapons. The pursuer claimed that he himself opened the patio doors for fresh air but that the bedroom door was locked for security. This contradicts Mr MacKay's position that he had opened the patio doors to get rid of the smell.

[18] The Pursuer insisted that when cleaning his weapons he would bring down the loft ladder, go up to the loft, bring down all four weapons at one time, then put the loft ladder back up again apparently to stop dust falling down and because people could not walk past. All of this seemed inherently implausible to me. If he was just bringing the weapons down for a short period for cleaning it would appear senseless to go through the exercise of opening and closing the loft hatch and bringing the ladder down twice, risking more dust falling, in such a short period of time. He claimed that if the ladder was left down no-one could get past. It was clear, from his own photographs that were lodged, that it was perfectly possible to get past. Mrs Buchanan also said the ladder was a fire hazard and the insulation from the loft would fall down. These comments appeared very rehearsed. The pursuer claims to remember Mr MacKay opening the door after his visit and going downstairs with him with the "Pledge" and the cloth at that stage which directly contradicts Mr MacKay's own evidence. Mr MacKay did not see any cleaning being done or any cleaning product. He always cleaned his own shotgun after use and in the kitchen but claimed that the bedroom was "exceptionally suitable" and a "perfect place". This evidence appeared somewhat exaggerated. He clarified this by saying that it was suitable because it was safe as it was on the upper floor but apparently failed to even consider the mess that might be involved. He cleans his guns in the kitchen, puts newspaper down in case he spills gun oil and would clean his gun both inside and out after use. He conceded that he would not use "Pledge" himself but gun oil or other sorts of oil but maintained that beeswax, "Pledge" or other products could be used for the outside. He presumed that the pursuer was cleaning the guns but he did not actually see him doing that that. He claimed there was a duster on the bed or on the cabinet and also initially claimed that he saw the boxes of ammunition on the bed beside the guns (as was shown in the photographs) which was clearly incorrect as they could not have been there at the time according to both the pursuer and the police. (Later in his evidence he said he could no longer remember whether ammunition was there or not). Despite being what he described as a regular visitor, he had never seen the loft ladder down. In cross-examination he conceded that he had never actually seen the pursuer clean his guns before and that he knew the pursuer's routine only because the pursuer had told him.

[19] P.C. Jim Renwick was also clear that there were no cleaning products in the room and no smell of polish. This evidence was backed up by P.C. Dalgetty. He also said that none of the weapons had been cleaned inside. This was supported by P.C. Dalgetty who also confirmed that the pursuer and P.C. Renwick had gone in to the loft while she stood at the top of the ladder. They saw that there were no weapons there. The pursuer only told them that he was cleaning the weapons when they asked why they were lying on the bed. She did not believe he had been cleaning the weapons because he was so defensive and more interested in where the information came from than taking responsibility for the weapons. She thought that he had no respect for his responsibilities. She was clear that she detected no smell of polish and could not be moved on this. It was suggested to her that if there had been a smell of polish then her position would have changed. She was clear that it would not. Someone had had concerns about weapons being held insecurely, had reported that to the police and that was exactly what they found. I am satisfied on the balance of probabilities that the pursuer was not cleaning his weapons in the bedroom at the time of the police visit.

[20] There were other inconsistencies and discrepancies in the pursuer's case. He and Mrs Buchanan repeatedly said how meticulous he was in his house. She repeatedly said that the pursuer liked the house to be spotless at all times. It stretched my credulity that someone who was so meticulous that they insisted on everyone taking off their shoes in his house (and criticised the police officers quite vociferously for refusing to do so) and only using the back door, would be cleaning weapons on the bare mattress on his own bed.

[21] A significant amount of time was involved in hearing evidence about whether the various doors to the property were open, closed or secured when the police visited. If the weapons had been secured in a locked gun cabinet it would not matter much whether doors were locked or not. The pursuer's counsel appeared to be arguing that as doors were secured (as his client insisted they were) it did not matter whether the weapons were secured or not. I do not accept this proposition. It seems to turn the argument in reverse. Accordingly even if I found that all the doors were closed and secured (which I have not) it is not the case that the pursuer would necessarily have satisfied me that there was no problem.

[22] The pursuer's contention was that just about all of the doors to the property were closed and secured. In relation to the internal doors, Mr MacKay said in chief that he did not know if the door was locked to the bedroom when he arrived. He thought it was closed but did not know if there was a key or a lock. He said he was told by Mr Simpson, as he came in, that the pursuer was cleaning guns in the bedroom (not bringing the guns down from the loft as Mr Simpson had said). He was in the bedroom for 15 to 25 minutes and when he left the pursuer followed him but he could not say if the pursuer secured the door behind him or not. He thought that the pursuer may have had a duster with him at the time. He left the bedroom first and did not have to unlock the door. Neither did the pursuer have to unlock it. His position was therefore that the door to the bedroom was not locked before he exited with the pursuer. Mrs Buchanan however claimed to have noticed, on the day in question, that the pursuer locked the door as she "heard it" when he went in to the bedroom. She claimed that it was not simply that she knew that he always locked the door but that she specifically heard it on this occasion. She was in a different room at the time apparently clearing out the pursuer's son's toys. It does seem unlikely to me that she would specifically remember the door being locked on this one occasion if, as she said, the gun cleaning was a regular occurrence. She said she specifically saw the pursuer coming down with the "Pledge" and the cloth but it was not clear how she could see this from the room she was in. Again, it seemed odd that she was able to remember that detail on this particular occasion if it was such a routine activity. She claimed to specifically remember the door locking after Mr MacKay went in, which contradicts Mr MacKay's position, and thought that there would have been something on the mattress to protect it when the pursuer was cleaning his guns. From the photographs and the evidence, there was nothing covering the mattress.

[23] P.C. Renwick was very fair in his responses. He was clear that the back door was open, the patio doors to the balcony were open, the inside door to the garage was open but could not remember whether the front garage doors were open or not. If he were really involved in some sort of conspiracy, I would have anticipated that he and the other officer would have given exactly the same evidence and he would have suggested that the front garage doors were also open. In fact even Mrs Buchanan accepted that the garage doors open for her to clean her car but claimed she had only just opened them and there is an admission on record that the main garage doors were open. P.C. Renwick quite fairly indicated that he was not unduly concerned about the doors being open but rather that the weapons were lying insecurely on the bed. I took from that that he meant that if the weapons were being stored securely the question of whether or not the various doors were secured or not would not have mattered which seems a fair assessment. He took the view that each incident involving the pursuer built up and ultimately he was not suitable to hold firearms or shotgun certificates. Public safety was paramount. The weapons were insecure and there was access to the property available. P.C. Yvonne Dalgetty was clear that the door to the garage was open and the bedroom door was also open. For the reasons I have already given, including the inconsistencies between the pursuer's witnesses' versions of events, I prefer the defender's witnesses on this topic. The house was not secure and there was open access. As I have already stated, however, even if the house doors had been secured that would not necessarily have helped the pursuer terribly much.

[24] The police were criticised for driving too fast up the driveway and disturbing the pursuer. He described them as having driven erratically "like a maniac" and that there was "broadside skidding". For that reason, he said, he ran downstairs and left the weapons unattended and the door insecure apparently frantic with worry that something might have happened to a loved one. This did not tie in with Mrs Buchanan's evidence that the police drove up the drive too fast but then sat in their vehicle for a minute to a minute and a half before exiting the vehicle. She also claimed that the pursuer was laid back when the police arrived. This seemed surprising given his evidence that he had rushed down to see them, leaving the door insecure because of his concern they may be bringing him bad news. P.C Renwick appeared puzzled when asked about driving up the driveway at speed. He had not driven at speed up the driveway and had no reason to do so. P.C. Dalgetty supported P.C. Renwick's position that they did not approach at speed and had absolutely no reason to do so. I feel able to attach a considerable amount of weight to her evidence in chief as she was not led in any way and simply volunteered information. I do not accept that the police drove at an unreasonable speed or caused the pursuer to rush downstairs to meet them leaving his weapons unattended and insecure.

[25] Mr Simpson said that it was a "Sunday ritual" for the pursuer to clean his weapons. In cross-examination, however, he accepted that he had only seen the loft ladder down a couple of times. This seemed strange if he visits regularly for long weekends if there was indeed a weekly Sunday ritual. He said that he had never seen the pursuer's guns insecure but qualified this by saying he would not normally be in the pursuer's bedroom. When Mr MacKay was asked if the pursuer had a routine for cleaning guns, he said that the pursuer had told him he cleans them fortnightly on Sundays. The information again appears to have come from the pursuer himself rather than by any observation. Mrs Buchanan's evidence in this respect was very confused and confusing. She maintained that the pursuer kept the guns and firearms in the loft but conceded that she had in fact never been in there. She had seen him access the loft ladder but had never seen him come down with the guns. This again seemed odd given her evidence that she stayed four or five nights a week, including every Saturday and Sunday, if indeed the pursuer brought the weapons down every Sunday or even every second Sunday to clean them. Initially she said that she did not know if he had a routine for cleaning the guns as she had never seen him cleaning them. She then said that he had told her that he cleans them almost every Sunday. She claims to have seen oil and a cloth in the cupboard by the safe although this was not mentioned by anyone else. Despite her earlier evidence that she had never seen him cleaning the guns she then claimed that he usually cleaned them about 12 noon. Her evidence, particularly in cross-examination, was at times very muddled. She accepted that she had never been in the loft and had never seen him remove the weapons. When asked how she knew the guns were stored there she said she just knew the gun cabinet was there. When asked how she knew, she said that he had told her. She then said that she knew he stored the weapons there and that they had never been anywhere else as she had seen him going up to the loft. Then she said she had never really paid any attention. She finally conceded that she did not know for sure where he kept the weapons. She was asked if she had ever looked under his bed and said that she had in order to hoover and to pick up sweetie wrappers, which again seemed to suggest that the pursuer was not quite as meticulous about his house as he made out. Having accepted that she had never actually seen him clean the guns she denied that he had told her about his routine but she could not satisfactorily explain how she knew about it. Finally, P.C. Renwick's position was that the first he heard about any Sunday cleaning ritual was at the proof. It seems at best surprising that the pursuer did not mention it at the time of the police visit if it was such a big part of his weekly or fortnightly routine.

[26] The pursuer denied that there was any animosity between him and his ex-wife's new partner, Andrew MacIntosh, despite maliciously reporting him for drink driving. In response to questions in relation to animosity towards Mr MacIntosh, he volunteered repeatedly how much the court action had cost him but did not actually answer the question. He spoke of "the hold" he had over his son which prevented his ex-wife going to New Zealand and seemed to take some satisfaction in this. This was a clear display of animosity towards his ex-wife and her partner. In relation to the police report where it was stated that he had made an off the cuff comment to "batter" Mr MacIntosh, he claimed not to have made the remark although it was noted in the police report and spoken to in evidence.

[27] The pursuer's attitude to the letter of 31^st July 2007 was puzzling. Eventually he accepted in cross-examination that he had received it and that it was a warning but he still persisted in saying that he had not done anything. He changed his position in relation to the call alleging that Mr MacIntosh was drink driving. At first he said that he did not remember making an anonymous call and knew nothing about it. He then said that he had been told by a lady in Drumnadrochit that Mr MacIntosh had been drink driving. From the police report he appeared to have told the police that they were unlucky that Mr MacIntosh was not drink driving that particular day as he normally did. It seemed to me that the pursuer was simply making up stories to try and justify his actions after the event. He had made the call anonymously declining to give his name and address and had not expected it to be traced to him. P.C. Renwick gave evidence on the various issues which caused warnings to be given to the pursuer. His position was that the various reports were accurate insofar as they involved him and his opinion had not changed. He had particular concerns about the malicious report of drunk driving where the ill feeling between the pursuer and Mr MacIntosh was so strong that he was willing to get someone else into criminal trouble. It became apparent during Mrs Buchanan's evidence that she knew nothing about, or at least claimed to know nothing about, the pursuer reporting Mr MacIntosh for drink driving although she did know about the warning letter he received. From the events which led to the warning letter and from the pursuer's evidence and demeanour at the proof I have concluded that he did display animosity towards Mr MacIntosh in the past and to some degree still does.

[28] With regards to the incident with the 10 year old child, the pursuer's position on record and at proof was to the effect that he had witnessed the child in question hitting/punching/kicking another child and explained that that was why he had shouted at him. He suggested it was nothing to do with the alleged bullying of his own child or any altercation between his son and the 10 year old boy. If that was correct it seemed extraordinary that he did not report the assaults by this child on another child to the school or mention it to the police at the time he was interviewed. P.C. Renwick had personally spoken to the 10 year old boy and the boy's brother directly and in evidence was able to speak to their distress at the time. Mrs Buchanan had heard about the boy who had bullied the pursuer's son but appeared not to know anything about the pursuer apparently seeing that same boy assaulting another child. I do not think, having seen and heard the pursuer in the witness box, that he would have failed to mention something as important as that to his partner given that the police were questioning him about the incident. I do not accept the pursuer's explanation which appears to have been made in the course of this litigation for the first time. I have concluded that the incident happened as noted in the contemporaneous police report and that it is an example of the pursuer's intemperate behaviour.

[29] Much was made by the Pursuer's counsel of the police not attending on the actual day they received the intelligence. The pursuer apparently blamed his ex-partner for the whole incident saying that she knew he cleaned guns on a Sunday and he suspected her of having advised the police of this. It was clear from the police evidence, however, that there was no plan to come on a Sunday and this was the first day that two officers were available in Beauly. The pursuer's counsel suggested that P.C. Renwick had deliberately waited from 20^th May to 23^rd May to catch the pursuer while cleaning his guns. Despite being cross-examined at great length about this, P.C. Renwick was clear that he had been briefed on 20^th May. He had been the only officer on duty. He had in fact asked permission for another officer from Inverness to assist him but was advised that that was not possible. He therefore had to wait for P.C. Dalgetty to return to work on 23^rd May. It was suggested that there was some sort of conspiracy led by P.C. Renwick in relation to this. I do not accept that that is the case and fully accept that P.C. Renwick attended as soon as he could when another officer was available. P.C Dalgetty, when asked why the police had attended only on 23^rd May, explained that she had been off work for a few days and that was her first day back. This clearly supported P.C. Renwick's position and went against the pursuer's conspiracy theory. When she was persistently cross-examined on the suggestion that there was some sinister delay in not attending until 23^rd May, she explained clearly how rural beats work and why two officers were required. I accept the police evidence on this and do not accept that the visit took place deliberately on a Sunday.

[30] The pursuer said that on the day in question he took photographs of the weapons on the bed on his phone to show that they were safe. He certainly took the photograph but otherwise I do not accept his evidence in this respect. Both police officers said that the door to the bedroom was ajar and unlocked when they were taken in and that the weapons were on the bed but not in the condition shown in the photograph. P.C. Renwick's evidence was that the shotguns were not opened and the rifles did not have the bolts pulled back and that he opened the shotguns and pulled the bolts back immediately to make them safe in accordance with his training. He was clear that he would always immediately check that any weapons were empty by opening them and removing the bolts. This was backed up by P.C. Dalgetty who said that the photograph taken of the weapons was taken by the pursuer on his phone as they were about to leave and after P.C. Renwick had made them safe. The weapons had not been broken or had their bolts removed and were not clean inside when they arrived. She like P.C. Renwick spoke to the fact that the pursuer seemed more interested in who had given the information to the police rather than being concerned about the weapons being insecure. The police officers' position on this was in fact also backed up by Mr MacKay, who said that he had seen the guns earlier but that they were not broken and did not have the bolts removed. The pursuer's position, however, was that they were already breached and had the bolts removed. I do not accept his evidence in that respect. I have concluded that the weapons were not broken or had the bolts removed when the police attended. The pursuer's evidence in this respect is again lacking in credibility. In my view the fact that the pursuer has lied on this matter is significant in the context of this case.

[31] A considerable length of time was spent going through a bundle of 19 photographs taken by the pursuer. The focus of this evidence was, it seemed, to try and show that the house was isolated and not easily accessible to others. In fact, it was apparent that there were static caravans occupied by people within a 10 to 15 minute walk of the house. There was also a B-road at the foot of the driveway which was visible from the house itself which could be seen from some of the photographs. There was a workshop where the pursuer's employees attended on occasion also within a 10 to 15 minute walk. The caravans and some other houses were 200 yards away as the crow flies. While there was a wooded gully between the pursuer's property and the nearest house, it was in no way a major obstacle as was suggested by the pursuer. I do not accept that his house was inaccessible to members of the public. While it is clearly rural, it is not particularly remote. Ultimately a small basic plan of the house and a section of ordnance survey map may have served the purpose better as photographs can distort views. In any event, it was clear from the evidence taken as a whole that the house could be accessed by other people. The pursuer initially maintained the static caravans were around 1,000 yards from his house, although eventually conceded that they were 200 yards as the crow flies which accorded with the evidence the police had given. He claimed that anyone walking would have to go a long way round as there was a steep, deep, dangerous gorge which could not be crossed. Mrs Buchanan said the same. P.C. Renwick called it a small gully and said that there was nothing to prevent anyone walking through it. This was the same gorge that his two witnesses, Mr Simpson and Mr MacKay, said there would be no difficulty in crossing. Mr MacKay went so far as to say, when asked if the gorge was dangerous, "only if you were wearing 6" high heels". He further explained that there was a path and while you could not cross it in a normal vehicle, you could in a jeep. This did not seem to tie in with the pursuer's evidence that the gorge was a major barrier which would prevent people approaching the house. I do not accept that the house was in any way so remote as to make it impossible for it to be a target for opportunistic or planned criminal activity.

[32] There was a somewhat bizarre chapter of evidence in relation to P.C. Renwick's ex-wife, Mrs Emma Renwick, who had apparently worked for the pursuer for a short time. In the pursuer's own evidence he had blamed her for filing away the firearms and shotgun certificates and not ensuring that he had signed them. His position in chief was that she had been in his employment when both were received (in July and December 2007). By the time he was cross-examined he had accepted that she may not have been there on one of the occasions but still maintained she was on the other. When P.C. Renwick found that the certificates were not signed the pursuer's position was that P.C. Renwick's ex-wife had filed them and did not tell him to sign them. It was not entirely clear to me whether it was being suggested that somehow P.C. Renwick resented the pursuer because his ex-wife had worked for him or whether his ex-wife somehow was meant to have helped P.C. Renwick in getting back at the pursuer. The pursuer's evidence on this matter was both confused and confusing. It became apparent during P.C. Renwick's evidence that he and his ex-wife had in fact been separated for 6 or 7 years by the time she worked for the pursuer. The pursuer even went on to claim in evidence that Mrs Renwick had specifically told him that the certificates had come in the post but had not said that they needed to be signed. It is difficult to see how this can be anything other than fabrication. P.C. Renwick was able to give clear evidence that his ex-wife had in fact only worked there in 2008 and therefore was not in the pursuer's employment when either of the two certificates were received. He had checked the dates with her and she had produced pay slips from her previous employer which showed she could not possibly have worked for the pursuer until at least some time in 2008 after the dates when both certificates were received. I am satisfied that she did not work there on either occasion when the certificates were received and that the pursuer was simply trying to blame her for something he should take responsibility for himself. The pursuer also said that his present partner, Mrs Buchanan, started doing his secretarial work when P.C. Renwick's ex-wife left. Oddly his counsel seemed to think that P.C. Renwick ought to know whether his ex-wife had left a backlog of work or not when she left the pursuer's employment. Mrs Buchanan, however, said that she took over secretarial duties when she started going out with the pursuer when a previous secretary, Jill, had moved away. Whatever the situation it was certainly clear that the failure of the pursuer to sign his certificates had nothing to do with Mrs Renwick who did not work there at the time and this whole episode of evidence did nothing to improve the pursuer's credibility and reliability. The failure to sign them as was required by law (Mr MacKay said it was clear from the certificates themselves that they required to be signed which is why he always signed his) is symptomatic of the pursuer's casual attitude towards the legislation. Moreover his attempt to blame someone who could not possibly have been responsible or even remotely involved at the time, displays a disregard for the truth. It further supports the conclusion I have arrived at.

[33] There was a further chapter of evidence in relation to the ammunition which was contained in a safe within the mirrored wardrobe in the bedroom. The pursuer had given evidence to the effect that the safe had been full of private papers and he did not want the police officers to examine it. He said he had tried to stop the police searching it as they had no warrant. Later, he conceded that they did not need one and in any event he had given his consent, albeit he was not happy about it. He specifically denied that P.C. Jim Renwick found more ammunition in the safe. It was clear from the police evidence, which I accepted, that he did, albeit the police did not attach any particular significance to this. Both officers gave evidence to the effect that P.C. Renwick did a touch search of the safe and found further ammunition which had not been brought out by the pursuer. As I have noted already, P.C. Dalgetty very fairly volunteered in chief that she felt that it was a genuine oversight on the pursuer's part as he was clearly flustered and uncomfortable about them searching the safe as he did not wish them to find other items which were in there. The pursuer's counsel seemed intent on criticising the police officers' conduct in relation to the incident notwithstanding the very fair concession made by P.C. Dalgetty and it is not clear what point he was trying to make. It seemed to me that the officers were correctly carrying out what was required of them. Indeed if they had failed to check the safe, the extra box of ammunition which the pursuer had left in there would have been missed. The police could have been criticised for leaving the pursuer in possession of ammunition illegally following revocation of his certificates. I do not accept that the police officers acted in any way unreasonably in relation to this matter. The pursuer's credibility is however further damaged by his attitude and conduct.

[34] Mrs Buchanan gave evidence that the garage doors were open when the police arrived only because she was about to wash her car. P.C Renwick gave clear evidence that another woman was washing her car when they arrived. This was supported by P.C. Dalgetty's evidence. Counsel for the pursuer made much of the fact that the pursuer's witnesses had not mentioned this woman. That was certainly the case although they did not appear to have been specifically asked about it. This matter simply came out as the officers were being asked about their arrival (the pursuer having criticised their driving in his evidence). I do not find that this evidence is particularly material but in any event I prefer the evidence from the police officers. P.C. Dalgetty spoke of Mrs Buchanan approaching them when they arrived, of a small car being washed by an older lady in front of the open garage door, of the back door being open, of the door from the hall to the garage being open and her being able to see through it. Cross-examination focussed somewhat bizarrely on the details of the woman cleaning the car. It seemed that P.C. Dalgetty was being criticised because she had not taken her name and address. It is not clear to me what, if anything, this woman could have added to the situation and why her details should have been noted. If anything the fact P.C. Dalgetty did not do so reinforces her credibility. She saw someone, noticed her and recalled some general details, but did not pay particular further attention as she had no reason to. She was more concerned about the intelligence the police had received about insecure weapons being stored in the house. Her position seemed perfectly appropriate and reasonable for a police officer on an investigation to check on firearms intelligence. Effectively I was asked to discount the whole of the defender's case because it was said that the officers had made up the story about someone being there washing a car and therefore they could not be regarded as credible witnesses in any respect. Leaving aside for the time being what the officers would have gained by making this up I have already provided reasons for assessing the two officers as credible and reliable and this episode has done nothing to affect my conclusion in that respect.

[35] I should mention in passing certain evidence in relation to a visit by the police to the pursuer's house in 2005 arising out of similar allegations. The pursuer's counsel objected to this line of questioning. It was allowed under reservation. The pursuer's counsel appeared to suggest that P.C. Renwick had, for some reason, made this incident up as the proof had gone on. He also blamed P.C. Renwick for the fact that there was no mention on record of this specific visit (notwithstanding the fact that he is not a party to the action but simply a witness to fact and has no responsibility for, or control over, what is contained in the defender's pleadings). The matter was aired briefly but adequately in cross-examination of the pursuer. It seemed to me that it was mentioned simply in order to provide a background to P.C. Renwick explaining why he was not prepared, on entering the pursuer's house, to remove his boots when he attended in May 2010, having been delayed by a similar request 5 years previously. In any event, for the avoidance of doubt I have not had any regard to any evidence arising out of the incident in 2005. It was not available to Temporary Deputy Chief Constable Cowie when making his decision and he took no account of it. Neither have I. As I am dealing with the case on the merits it is open to me to take account of information not available to him. I do not consider that anything of substance arises out of this evidence and accordingly I have simply ignored that brief chapter completely in coming to my decision. I consider that is the appropriate way to deal with it. It clearly does not and cannot in any way detract from P.C Renwick's credibility as was submitted by the pursuer's counsel.

Reasoning

[36] In terms of Section 44(2) and (3) of the Act an appeal is to be determined on the merits. Temporary Deputy Chief Constable Cowie, who made the decision, had the benefit of the documentary evidence that was before me but did not have the benefit of hearing oral evidence. I have already indicated that were this appeal simply to be a review of that decision then I would have had no criticism of it. Having heard the oral evidence, it seems to me that if anything, the defender's position is reinforced. For the reasons I have given, in some detail, I find the pursuer and his witnesses' evidence to be both incredible and unreliable at times. Nothing that has come out in the oral evidence suggests to me that the police have done anything wrong, never mind lied or formed some sort of conspiracy to attack the pursuer which was suggested in submissions.

[37] I did not find the cases referred to by the pursuer's counsel to be of any real assistance in my consideration of the case. Nor do I find them to be of any assistance to the pursuer. The two cases referred to pre-date the amendment to the Act as the defender's solicitor correctly submitted, and essentially deal with a different test. It is clear that every case has to be decided on its own merits.

[38] Section 30(A)(2)(a) (relating to firearms) states:-

"the certificate may be revoked if the chief officer of police has reason to believe that the holder is of intemperate habits or unsound mind or is otherwise unfitted to be entrusted with a firearm."

It seems to me that there is evidence of clear animosity between the pursuer and others, in particular his ex-wife and her partner. Mr MacIntosh had reported the pursuer to the police because he thought that his car had been damaged by the pursuer. When this was being investigated by the police, the police noted that the pursuer had said that he would like to batter Mr MacIntosh. This was noted at the time. A police officer spoke to it in evidence. I have no reason to disbelieve him. Of more concern is the fact that the pursuer reported the same person for drink driving and did so anonymously. It turned out, of course, that Mr MacIntosh was completely sober and the call was traced to the pursuer. On the police report it was noted that the pursuer suggested that the police were just unlucky not to catch him drink driving on that occasion. His position in evidence before the court in relation to this matter was entirely unsatisfactory and contradictory as noted above. As a result of these incidents the pursuer received his shotgun licence with a warning. It was apparent from his demeanour when giving evidence and indeed from his actings that he did not take this warning seriously and felt it should not have been given. In relation to the further incident which arose in 2008 with the 10 year old boy, the police report followed upon the officer in question interviewing the boy and his brother and the pursuer's account of the incident again differs completely. What seems odd is that the account which was given in court by the pursuer does not appear to have been given to the police at the time or subsequently to his partner. It also seems odd that if the boy in question had assaulted another child that the pursuer did not report this to either the school or the police. The pursuer received a further warning. Temporary Deputy Chief Constable Cowie indicated that he had never known anyone else to be given two warnings before revocation and it seems to me that the pursuer was dealt with extremely fairly in this respect. The pursuer's counsel seemed to suggest that these two incidents were somehow too old to be relevant but I do not accept that proposition. They were part of the history of the pursuer's certificates being granted and therefore are directly relevant. In any event, his own evidence before the court made it clear that the pursuer still had some animosity for Mr MacIntosh, notwithstanding his claims not to and I am satisfied in the circumstances that the pursuer is of intemperate habits in the sense of being unrestrained or otherwise unfit to be entrusted with a firearm.

[39] Section 30(A)(2)(b) (also relating to firearms) states:-

"the certificate may be revoked if the chief officer of police has reason to believe that the holder can no longer be permitted to have the firearm or ammunition to which the certificate relates in his possession without danger to the public safety or to the peace."

The police received intelligence that weapons were being stored insecurely. They clearly treated this intelligence seriously and worth investigating, As soon as there were two officers available to attend they went to the pursuer's property and found the weapons, including firearms, exactly as had been suggested, lying insecurely on the pursuer's bed. Notwithstanding the various conspiracy theories put forward by the pursuer, namely that the police had deliberately come on a Sunday as he cleaned his guns then, that the police had it in for him because of some speeding allegation, that his ex-wife had put the police up to it or that P.C. Renwick's ex-wife was somehow responsible for him not having signed the certificates, it is clear to me that all the evidence points to the fact that the pursuer was not in fact cleaning his weapons on his bed on 23^rd May but rather the weapons were lying there insecurely. There was no satisfactory evidence that the weapons were being cleaned. There were no cleaning materials present. Any cleaning materials were in a cupboard in the kitchen. The barrels were dirty. There was unrestricted access from the rear of the property and the front via the garage. Despite the pursuer's best efforts to claim that his property was so isolated that no-one could access it, it was clear that both the static homes and workshops are in close proximity and the pursuer's house is easily accessible on foot. It was clear from the pursuer's own photographs that a public road is nearby. It seems to me that in fact the pursuer has been treated very fairly and has been given the benefit of the doubt on at least two previous occasions when his suitability to hold certificates was questioned. I agree with the defender's submission that the pursuer displayed a cavalier and dismissive attitude towards the police officers who were simply carrying out their duties. Leaving lethal barrelled weapons insecure is clearly a serious danger to public safety and to the peace and I consider that there is considerable merit in the defender's submissions in this respect. It seems to me that this incident alone, given that I have not accepted that the pursuer was cleaning his weapons, would be sufficient to satisfy Section 30(A)(2)(b). This incident taken cumulatively with the previous incidents clearly demonstrates that the pursuer can no longer be permitted to have firearms or ammunition without danger to the public safety or the peace.

[40] Section 30(C)(1) states:-

"a shotgun certificate may be revoked by the chief officer of police.........if he is satisfied that the holder.............cannot be permitted to possess a shotgun without danger to the public safety or to the peace."

For the same reasons as I have outlined above, I am satisfied that this Section also applies to the pursuer. He can no longer be permitted to have shotguns without danger to the public safety or peace.

[41] In my view, the defender was entirely entitled to make the decision he did to revoke the certificates and indeed could have been criticised for not doing so. I have considered all the evidence before me and have looked at the merits of the case. Nothing in the evidence before me has led me to come to a different conclusion.

[42] As I have found in favour of the defender, I have awarded expenses in his favour in the usual way.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Noble v. Chief Constable Northern Constabulary [2011] ScotSC 20 (21 April 2011) URL: http://www.bailii.org/scot/cases/ScotSC/2011/20.html Cite as: [2011] ScotSC 20

Scottish Sheriff Court Decisions