Rights and priv­i­leges

Shooting Gazette - - This Month - Find­ing so­lu­tions to firearms li­cens­ing prob­lems is ex­tremely com­plex when med­i­cal, gov­ern­men­tal and law en­force­ment stake­hold­ers are in­volved. so what needs to be done? By John Walker.

Of the 195 coun­tries in the world, only three - Is­rael, New Zealand and the UK - do not pos­sess a cod­i­fied con­sti­tu­tion in a sin­gle le­gal doc­u­ment and of all the oth­ers, only three - Gu­atemala, Mex­ico and the US - still in­clude a right to keep and bear arms. In Eng­land, we be­gan with the 1689 Bill of Rights that al­lowed Protes­tant ci­ti­zens of Eng­land to ‘have arms for their de­fence suit­able to their con­di­tions and as al­lowed by law’, and it is the evo­lu­tion of law through sub­se­quent acts of par­lia­ment, court judg­ments and con­ven­tions that pro­vide ro­bust, work­able gun con­trol. When 100 years later the US Congress passed into law the Sec­ond Amend­ment to its Con­sti­tu­tion in 1789, un­der­lin­ing a pre-ex­ist­ing right for ‘a well reg­u­lated mili­tia, be­ing nec­es­sary to the se­cu­rity of a free state, the right of the peo­ple to keep and bear arms shall not be in­fringed’, it was prob­a­bly think­ing more of pro­tect­ing the land of the free from those in­tent on steal­ing its land, gold, cat­tle and so on, rather than mak­ing it the world’s big­gest pri­vately owned and min­i­mally reg­u­lated ar­se­nal of weaponry.

In the US, pretty much any­one who can re­mem­ber their own name can legally buy a gun and keep it for life, whilst over here we jump through metaphor­i­cal hoops of fire to se­cure a per­mis­sive grant and ev­ery five years, sub­se­quently to re­new it, which throws up the anom­aly of gun own­er­ship as right or priv­i­lege. The cur­rent process for ap­ply­ing for grant and re­newal may be time con­sum­ing and oc­ca­sion­ally frus­trat­ing, but is ar­guably bet­ter in con­cept than any­thing else

avail­able, but that does not equate to per­fec­tion. The Home Of­fice sets the rules, the con­stab­u­lar­ies are man­dated to over­see the process and we, the end users, are legally bound to com­ply; hope­fully, all three con­stituen­cies recog­nise the im­per­fec­tions and look for any work­able im­prove­ment.

Ac­cord­ingly, in 2016 and af­ter tak­ing ad­vice from the In­de­pen­dent Police Com­plaints Com­mis­sion (IPCC) and coroners, fol­low­ing con­sid­er­able col­lab­o­ra­tive dis­cus­sion be­tween the mem­bers of the Med­i­cal Ev­i­dence Work­ing Group (MEWC) com­pris­ing the Home Of­fice, the police, the Bri­tish BMA rep­re­sent­ing GPS – ar­guably it should have been the GMC who have big­ger teeth – and those shoot­ing or­gan­i­sa­tions that rep­re­sent our in­ter­ests, a new pro­to­col was agreed and ap­proved by all the play­ers in the MEWC, de­signed to im­prove an al­ready ‘safe’ li­cens­ing process.

The track record of se­cure gun own­er­ship and use in the UK re­mains gen­er­ally of a high or­der, but ex­cep­tions can oc­cur. When weapons fall into the wrong hands, when our self-dec­la­ra­tion of med­i­cal fit­ness on li­cence ap­pli­ca­tions may fall short of real­ity or when own­ers sub­se­quently suf­fer some form of med­i­cal con­di­tion that might al­low mis­use or threat to pub­lic safety, all these is­sues had raised con­cerns with both gov­ern­ment and con­stab­u­lar­ies and these were ad­dressed through­out the dis­cus­sions. Thus, on re­ceipt of an ap­pli­ca­tion for grant, the rel­e­vant police li­cens­ing team would au­to­mat­i­cally pop­u­late a let­ter to the ap­pli­cant’s GP, ask them to do a pre­lim­i­nary check on an ap­pli­cant’s med­i­cal his­tory and if they had not re­sponded or high­lighted an ex­ist­ing or po­ten­tial prob­lem within 21 days, the police would go ahead and process the ap­pli­ca­tion. Si­mul­ta­ne­ously, the GP would place an en­coded per­ma­nent marker on the ap­pli­cant’s med­i­cal record such that should there be any wel­fare con­cerns in the fu­ture, the GP or, as we are now four times less likely to see one GP than we were in 2012 and con­ti­nu­ity of care is thus ques­tion­able, the med­i­cal prac­tice, would be aware enough to in­form the police and seek re­view. It was also agreed by all par­ties that there would be no ad­di­tional charge to be borne by the ap­pli­cant for this ini­tial med­i­cal re­view and en­coded mark­ing.

Let’s look at a few ba­sic sta­tis­tics to give all this some con­text. Ac­cord­ing to the Home Of­fice and its Na­tional Firearms Li­cens­ing Man­age­ment Sys­tem, at the last pub­lished count (March 31, 2017) there were 561,413 shot­gun li­cences at is­sue, cov­er­ing 1,349,099 shot­guns, an in­crease of 17,536 or one per cent year-on-year. Of our 43 police forces the high­est num­ber of li­cences were held in Devon & Corn­wall (30,824), Thames Val­ley (26,291) and the Met (26,050), while the low­est num­ber were in the City of Lon­don (29), Cleve­land (2,749) and Mersey­side (3,516). Mersey­side was also the force with the low­est num­ber of shot­guns per 100,000 peo­ple at 557, but more of its ap­proach later. Of the 23,718 new ap­pli­ca­tions lodged with the police, 23,128 or 98 per cent were pro­cessed and granted, while the re­main­ing 590 were un­suc­cess­ful and a fur­ther to­tal of 1,216 were re­voked. There were 99,403 ap­pli­ca­tions in the pe­riod for li­cence re­newal of which 99.8 per cent were suc­cess­ful. There were 154,958 firearms li­cences at is­sue, cov­er­ing 559,302 weapons, 9,825 new ap­pli­ca­tions of which 98 per cent were granted, 205 re­fused and 358 re­voked, but what these fig­ures cer­tainly con­firm is that ser­vic­ing this de­mand rep­re­sents a shed-load of time and re­source. Within days of the new pro­to­col an­nounce­ment by the Home Of­fice, two prob­lems emerged.

Firstly, it be­came ob­vi­ous that the BMA could not de­liver what they had agreed to, as many of its GPS bluntly re­fused to com­ply with any­thing on the ba­sis that it was out­side their Gen­eral Med­i­cal Ser­vices (GMS) con­tract. They cited lack of fund­ing and that they are not suit­ably qual­i­fied to give an opin­ion

on whether there are con­cerns about a pa­tient. Who bet­ter we might ask, but let’s leave that aside.

Sec­ondly, some who were pre­pared to en­gage with the new process be­gan levy­ing to­tally un­reg­u­lated fees for their co­op­er­a­tion, of­ten of star­tling pro­por­tions and nei­ther the BMA nor the Home Of­fice could bring them back in line. The BMA’S re­treat has been ab­ject to such an ex­tent that de­vi­at­ing from its orig­i­nal pre-agreed guide­lines, it has now ad­vised GPS to re­ject all firearms li­cence re­quests from the police or aban­don the process en­tirely by claim­ing con­sci­en­tious ob­jec­tion to gun own­er­ship or lack of fund­ing, and if they do hap­pen to co­erce ap­pli­cants into part­ing with a fee for the ini­tial med­i­cal re­port, not to place the per­ma­nent en­coded marker on file.

The med­i­cal hor­net’s nest

Her Majesty’s Rev­enue & Cus­toms (HMRC) said that in the year to Septem­ber 2017, av­er­age earn­ings for salaried GPS were £55,800, while if con­tracted they rose to £90,100, with more than 200 ‘su­per GPS’ in the NHS earn­ing more than £200,000, more than 15,000 fam­ily doc­tors earn­ing over £100,000 and the high­est recorded earn­ings in the year pre­ced­ing a meaty £700,000. The Gov­ern­ment has enough is­sues with the med­i­cal pro­fes­sion across the NHS, and gun li­cens­ing be­ing a less im­me­di­ate im­per­a­tive, though it is be­lieved to be work­ing on a tweak to statute that might in­sist on a fee for GPS as part of the process, the Home Of­fice has cho­sen to sit upon its hands and not to stir the med­i­cal hor­net’s nest to re­cap­ture what all par­ties had thought was a done deal, but which has now been tor­pe­doed by the BMA and GPS.

The guts of the mat­ter of med­i­cal in­volve­ment is that while the

Home Of­fice calls the shots, most re­cently via its Guide on Firearms

Li­cens­ing 2016, and the police and we ap­pli­cants have a statu­tory duty to re­spond, GPS have no such le­gal re­spon­si­bil­ity un­der their GMS con­tract and be­cause they are ef­fec­tively au­tonomous and out­side the loop, can be as cav­a­lier as they like about co­op­er­a­tion and charg­ing. There are some apoc­ryphal tales of GPS charg­ing up to £250 to com­ply with an ini­tial med­i­cal re­sponse. Adding a marker to the ap­pli­cant’s record is still not guar­an­teed, to­gether with veiled hints that if fees were not forth­com­ing then the con­stab­u­lary could make up its own mind!

It may be that in this liti­gious age, GPS are more con­cerned about their pro­fes­sional in­dem­nity in­sur­ance and the le­gal re­spon­si­bil­ity of tick­ing an im­por­tant box in the li­cens­ing process to­gether with a fear of be­ing sued if some­thing un­to­ward oc­curs sub­se­quently. In real­ity, any of us can ac­cess our med­i­cal records by sub­mit­ting a Free­dom Of In­for­ma­tion re­quest un­der Sec­tion 3 of the Ac­cess to Health Records Act 1990, but this is us­ing a sledge­ham­mer to crack a nut and it still doesn’t over­come the is­sue of place­ment and sub­se­quent mon­i­tor­ing of a per­ma­nent en­coded marker. For its part, the BMA’S ad­vice to GPS not to place per­ma­nent mark­ers on med­i­cal records now ap­pears to re­volve around the ap­par­ent im­pre­cise na­ture of such mark­ers, the lack of clear pro­to­cols for their ap­pro­pri­ate re­moval and the ab­sence of re­li­able soft­ware to fa­cil­i­tate sur­veil­lance and cross-ref­er­enc­ing mark­ers with di­ag­noses of con­cern. Pity it hadn’t made that po­si­tion clear dur­ing the cross-party dis­cus­sions pre 2016 as it could have saved a great deal of time and angst at all lev­els.

The police stand­point of what is re­quired, sup­ported by its li­cens­ing man­agers across the coun­try con­sulted in the prepa­ra­tion of this fea­ture, is fair­ness and con­sis­tency in op­er­a­tion at the very least and guid­ance sooner rather than later. It looks up­wards to the Home Of­fice and lat­er­ally to the lo­cal med­i­cal prac­ti­tion­ers for some sem­blance of this, but so far to no avail. While the vast ma­jor­ity of con­stab­u­lar­ies have fol­lowed the 2016 Home Of­fice guide, by not de­mand­ing a re­sponse from GPS within 21 days be­fore they process ap­pli­ca­tions, a very few con­stab­u­lar­ies have de­cided uni­lat­er­ally to es­tab­lish their own rules on med­i­cal re­port­ing. Notably, Police Scot­land, which has one con­stab­u­lary and li­cens­ing depart­ment, Lin­colnshire, which has been work­ing with the Lin­colnshire Med­i­cal Coun­cil, Thames Val­ley and Mersey­side, all re­quire a pos­i­tive GP re­sponse within 21 days or they will not pro­ceed and no-one has yet per­suaded the GPS to adopt a recog­nised univer­sal charge for as­sist­ing, though the Home Of­fice’s 2016 guide stated ‘there should be no ex­pec­ta­tion of a fee’.

Back in March 2018 and af­ter re­view­ing its li­cens­ing op­er­a­tion, Her Majesty’s In­spec­torate of Con­stab­u­lary in Scot­land (HMICS) made 24 rec­om­men­da­tions to im­prove Police Scot­land’s in­con­sis­tency in im­ple­ment­ing its own firearms li­cens­ing pro­cesses. Fur­ther south, Mersey­side has adopted a more ag­gres­sive ap­proach to ran­dom checks on gun own­ers

“There are some apoc­ryphal tales of GPS charg­ing up to £250 to com­ply with an ini­tial med­i­cal re­sponse.”

which BASC has high­lighted, and Lin­colnshire has been ac­tively lob­by­ing for a recog­nised stan­dard fee base of around £40 for med­i­cal re­sponse to ap­pli­ca­tions and has been par­tic­u­larly vil­i­fied in let­ters to the shoot­ing press since it de­clared its new med­i­cal record checks pol­icy in April 2018.

De­spite there be­ing no pub­lished re­sults of con­sul­ta­tion or im­pact as­sess­ments of their ef­fec­tive­ness, it is clear that this ac­tion is mo­ti­vated by ex­pe­ri­ence and in the best in­ter­ests of ev­ery­one, shoot­ers and pub­lic alike. Fair-minded folk might sym­pa­thise with its po­si­tion and other con­stab­u­lar­ies are watch­ing its progress care­fully and some may uni­lat­er­ally de­clare for a sim­i­lar sys­tem.

Is there a way out of this mess?

Hav­ing watched them in ac­tion, should the Home Of­fice choose to adopt these guide­lines for the UK as a whole, then there is a view this would dis­ad­van­tage ap­pli­cants as it of­fers no ob­vi­ous guar­an­tee of charges, or per­ma­nent en­coded mark­ers. Though no con­stab­u­lar­ies have even sug­gested this, it may al­low GPS to in­sist on an­nual med­i­cal re­views through­out the du­ra­tion of the li­cence, inevitably with charges for each. GPS have re­jected the orig­i­nal con­struct that dur­ing the ap­pli­ca­tion process there should be no fee for pro­vid­ing an ini­tial check of the ap­pli­cant’s record in re­sponse to the police no­ti­fi­ca­tion, but where a med­i­cal re­port is re­quired due to the ap­pli­cant declar­ing a rel­e­vant med­i­cal con­di­tion, a fee may be levied and the ap­pli­cant is li­able for this.

If a sec­ondary med­i­cal re­port is re­quired to al­low the police to fur­ther as­sess or clar­ify the po­si­tion then the police will them­selves cover this. Ac­cord­ing to ad­vice from the GMC, the duty of GPS is to pro­tect and pro­mote the health of pa­tients and the pub­lic, but it is dif­fi­cult to see how re­fusal to pro­vide re­sponse to an ini­tial re­quest could be in­ter­preted as a pub­lic ser­vice, and if the un­der­ly­ing fail­ure of the new pro­to­col ap­pears to be as much about money as im­prov­ing se­cu­rity of the li­cens­ing sys­tem then it prob­a­bly is, at least on the part of the doc­tors.

How­ever, the police also cite prob­lems steered by bud­gets and per­son­nel re­sources, and gov­ern­men­tal aus­ter­ity pro­grammes have not helped. Five years ago, the As­so­ci­a­tion Of Chief Police Of­fi­cers (ACPO) lead on Firearms and Ex­plo­sives Li­cens­ing Work­ing Group (FELWG) was quite clear about prob­lems fac­ing the police in de­liv­er­ing an ac­cept­able ser­vice to ru­ral con­stituents and li­cens­ing. His point was that fees had not risen for more than a decade and there was an an­nual short­fall of £18.6m for police forces to process ap­pli­ca­tions for grant and re­newal. Cur­rently, the cost of a grant of a shot­gun li­cence is £79.50 and re­newal is £49 while the equiv­a­lents for firearms are £88 and £62 re­spec­tively, vari­a­tions cost £20, as do visi­tor’s per­mits. Police li­cens­ing de­part­ments are of­ten crit­i­cised for their slow re­sponse to ap­pli­ca­tions for grant and re­newal, some forces warn of up to four months turn­around time, but other forces, notably Hamp­shire, man­age to re­act in weeks rather than months. North­ern Ire­land is test­ing on­line li­cence ap­pli­ca­tion and re­newal, in­clud­ing sup­ply­ing cer­tain gun clubs with lap­tops and train­ing in or­der to speed up the process, but would an on­line sys­tem be se­cure and solve the prob­lem?

Most con­stab­u­lar­ies take the view that GPS have a duty of care ir­re­spec­tive of their per­sonal stance on gun own­er­ship and shoot­ing, and the Coun­try­side Al­liance, one of the most ac­tive or­gan­i­sa­tions in the pre-2016 dis­cus­sion and sub­se­quently, has sug­gested one way for­ward.

GPS must be un­able to refuse to co­op­er­ate with the police in the dis­charge of their statu­tory duty un­der the Firearms Act 1968. Any med­i­cal pro­ce­dure, and agreed fee, must be ap­plied con­sis­tently across the UK. GPS must, as part of this pro­ce­dure, ap­ply a per­ma­nent en­coded marker to the ap­pli­cant’s med­i­cal record. If a fee is in­tro­duced, it must be a one-off cost for the ap­pli­cant over the term of the li­cence and re­flect the true cost of per­form­ing the ini­tial check and ap­ply­ing the marker. The in­tro­duc­tion of an agreed sys­tem of con­tin­u­ous mon­i­tor­ing must lead to the im­ple­men­ta­tion of a 10-year li­cence.

Nick Hurd MP, Min­is­ter of State for Polic­ing and the man with the ul­ti­mate re­spon­si­bil­ity for sort­ing out this un­work­able sham­bles is fully aware of the short­com­ings. The Coun­try­side Al­liance’s so­lu­tion has con­firmed that work is un­der way to in­tro­duce statu­tory firearms guid­ance that will help to bring greater con­sis­tency across the coun­try, so the shoot­ing in­dus­try and its par­tic­i­pants look to him for a rapid res­o­lu­tion.

“Most con­stab­u­lar­ies take the view that GPS have a duty of care ir­re­spec­tive of their per­sonal stance on gun own­er­ship and shoot­ing.”

The role of GPS in firearms li­cens­ing has grown in re­cent years and their in­volve­ment throws up a num­ber of is­sues of its own.

The Home Of­fice has a num­ber of headaches that need to be un­rav­eled be­fore the prob­lems sur­round­ing firearms li­cens­ing are solved.

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