Do British subjects of good character have a legal right to possess arms for self defence?
S.A.F.E. PO Box 104, Hampton, Middlesex, TW12 1TQ
December 1997
Recent research by members of SAFE has determined that the ancient right of British subjects to possess arms for self defence has been concealed behind an official "policy" which has no basis in law. Thousands of innocent persons have been exposed to attacks from the lawless. The time has come for this immoral situation to change.
The purpose of this document is to set out what has been discovered so that it can be confirmed by interested parties and used in legal action to reclaim the right to acquire and carry the tools of self defence. The information below has been collated from Acts of Parliament, Hansard, legal textbooks and the Judgements in appeal cases which have restated the law.
Because firearms and irritant sprays are the most effective weapons of defence available at the present state of technology, their legal possession will be considered here. Other weapons, such as telescopic batons, are also allowed to be carried by responsible persons because the Bill of Rights (see below) gives lawful authority for them to be possessed for self defence. This was recognised in the debates on the Prevention of Crime Act 1953. Some "martial arts" weapons, such as rice flails, are however prohibited by the Criminal Justice Act 1988.
The legal controls on firearms in the UK derive from the Firearms Act 1920. The legislation was reviewed by a Working Party led by Sir John McKay in the early 1970's. Their report is not available to the public but some observations and recommendations from it were published by the Home Office in a consultative document in May 1973 (1);
"The Firearms Act 1968, following earlier firearms legislation, makes no attempt to define what should, or should not, be regarded as a good reason for possessing a lethal firearm. The stringency of the legal control over Section 1 firearms therefore rests in practice upon the way in which chief officers exercise the wide power of decision vested on them by the law, and on the decisions of the Crown Court in the relatively infrequent cases taken to appeal...There has been no general disagreement over the way in which... these powers have been exercised. To put the matter very broadly, sporting purposes and target shooting have been accepted as good reasons...personal protection has not". However " the time might come when a chief officer or the Crown Court decided to allow a firearm for personal protection...this decision might be treated as a precedent".
The Home Office expressed "grave concern" to avoid such a development and proposed that a Statutory Instrument be created allowing them to issue instructions to chief officers of police as to what should be "good reasons" in future. SAFE understands that no such Instrument has been created. We believe that it would be unlawful to attempt to do so for the reasons set out below. The Home Office have however promoted a "policy" which claims that "firearms are not considered appropriate for personal protection in this country".
The question which this essay seeks to answer is therefore " Do British subjects of good character have a legal right to possess arms for self defence? ". If we have such a legal right we are entitled to exercise it.
The Interpretation Act 1978 (2) and related case law sets statutory rules for determining the meaning and therefore the effect of Acts of Parliament. It also lays down rules for the repeal and reinstatement of legislation. For example, "the title and preamble can help in ascertaining the the scope of the statute and supply the key to the meaning of doubtful or ambiguous expressions", " the long title states the function of the Act" and "Acts are to be construed according to the intention of Parliament, which is to be sought only in the words used in the Act unless they are imprecise or ambiguous. The grammatical, ordinary and natural sense of all the words, read in the context of the statute in which they appear , is to be used. Where the meaning is plain, it is to be adopted". The word "may" is permissive and "shall" is imperative.
The judgement in the case of Pepper v. Hart (1993) (3) means that clarification about what the intentions of a Bill were can be found in the statements of the Bills sponsors in Parliament. A Court " may make reference to Parliamentary material, such as Hansard, where legislation is (a) ambiguous or obscure,... (b) the material relied upon consists of one or more statements by a minister or other promoter of the Bill together with such other Parliamentary material as is necessary to understand such statements and their effect; and (c) the statements relied upon are clear".
This case was referred to in Parliament and caused The Speaker of the House of Commons to issue a reminder to the Courts of their duty to take judicial notice of the Bill of Rights, confirming that it is an operative Statute ( Hansard p.351 21 July 1993) (4). She said " This case has exposed our proceedings to possible questioning in a way that was previously though to be impossible. There has of course been no amendment of the Bill of Rights (see below) ... I am sure that the House is entitled to expect that the Bill of Rights will be required to be fully respected by all those appearing before the Courts".
This new principle of law allows, perhaps for the first time, the layman to determine the meaning of Statute law. In the judgement Lord Oliver of Aylmerton stated that "A Statute is, after all, the formal and complete intimation to the citizen of a particular rule of law which he is enjoined, sometimes under penalty, to obey and by which he is both expected and entitled to regulate his conduct".
Since the Firearms Act of 1920 , arms may be lawfully held only by persons who have obtained in advance a firearm certificate or exemption permit (except for Crown servants). The procedures for obtaining these documents are laid out in the Firearms Acts.
Hansard records that the intention of Parliament in 1920 was " to afford an effective system of control over the possession, use and carrying of firearms so as far as possible to secure that they do not come into the hands of criminals or otherwise undesirable persons..." ( The Earl of Onslow in presenting the second reading 27 April 1920) (5). He stated on 29 April that " speaking generally, it must be assumed that the grounds on which a revolver may be applied for and the application ( for a firearm certificate) may be granted by a chief officer of police is for protection of the applicants house" i.e. for self defence (6).
The principles of repeal which are specified in the Interpretation Act mean that provisions in the Firearms Acts of 1920 and 1937 (7) are brought forward into the Firearms Act 1968. . Section 59 of the Firearms Act 1968 states that "things done under an enactment repealed by this Act...shall so far as may be necessary for the continuity of the law be treated as done under the corresponding enactment in this Act" (8). Earlier enactment's are therefore recognised in the current law. This was confirmed during the debates on the 1968 Act in replies by sponsors of the Bill to questions from Lord Swansea on 4 April 1968 in the Lords (9). Mr. Graham Page confirmed in the Commons on 13 May 1968 that no Statutory Instrument was created for the guidance of chief officers of police which removed the right to arms for defence. (10)
Section 27 of the 1968 Act states " A firearm certificate shall be granted by the chief officer of police if he is satisfied that the applicant has a good reason for having in his possession, or for purchasing or acquiring, the firearm or ammunition in respect of which application has been made and can be permitted to have it in his possession without danger to public safety or to the peace" (11).
In making his decision the chief officer is bound by his Oath of Office to comply with the laws, including the Bill of Rights 1689. This Statute, which as Madam Speaker reminds us has not been amended, was the first passed by Parliament after the civil wars. It remains our " central constitutional document,... the nearest approach to a constitutional code which we possess" ( (12) Sir William Anson 1922, from Bill of Rights by Richard Munday) Its long title is "An Act declaring the Rights and Liberties of the Subject and Settling the Succession to the Crown". Included amongst the "ancient rights and liberties of the subject" is article 7 which states;
"The subjects which are Protestant's may have arms for their defence suitable to their condition and as allowed by law".
The right of Protestants to arms was affirmed because it was they who, as the preamble makes clear, had been disarmed "contrary to law" after the Restoration. The right to defensive weapons was not restricted to them as was made clear by another Act of the same year ( W & M Sess 1, c.15.). The wording "suitable to their condition" reflected the Bill of Rights appeal to ancient usage. The Bill did not seek to create rights, but to reaffirm immemorial principles of common law. Constitutional commentary and case law would later confirm that this condition could not be construed to exclude "people in the ordinary class of life" ( R.v. Dewhurst, 1820 ). As has been shown above, the current Firearms Act respects the provisions of Article 7 of the Bill of Rights and the subject is "allowed arms by law".
The Bill of Rights insists that its provisions be respected. Article 13 states: "And for the redress of all grievances and for the amending, strengthening and preserving of the Laws Parliaments ought to be held regularly".
The word "amend" means to make improvement to something. Article 13 confirms that Parliament has no authority to diminish the subjects rights under the law. It is a reference to Magna Carta and Common Law and the reason why it would not be possible to make a Statutory instrument which directed a chief officer of police not to respect the right to arms for defence. The Bill of Rights makes this clear in the following passages:
"No declarations Judgements Doings or Proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example".
"All and singular the rights and liberties asserted and claimed in (this) declaration are the true ancient and indubitable rights and liberties of the people of this kingdom and so shall be esteemed, allowed, adjudged, deemed and taken to be and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said declaration and all officers and Ministers whatsoever shall serve their majesties according to same in all times to come.
In the case of Bowles v. Bank of England it was ruled that "the Bill of Rights remains unrepealed and practice or custom, however prolonged...can not be relied on by the Crown as justifying any infringement of its provisions" (1913). Self defence is therefore a statutory good reason for a chief officer of police to issue a firearm certificate, and is one of the rights or liberties of the subject (13).
A Home Office "policy" which seeks to discourage applications for arms for defence has no basis in law. The judgement in the case of R v. Wakefield Crown Court, ex. p Oldfield (1978) states " A person entrusted by law with a discretion may formulate a general policy for the exercise of that discretion but that policy must not be applied so rigidly that he does not in fact exercise any discretion at all" (14).
In making his decision, the chief officer must then determine if the applicant for an FAC " can be permitted to have arms without danger to public safety or the peace". The decision must be on the facts of the case.
Article 39 of Magna Carta (confirmed in 1967) states "no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way...except by the lawful judgement of his peers or by the law of the land" (British Library 1989) (15). This principle was also stated in the case of R, v. Casement 1917 "nothing but his own demerit can deprive the subject of his birthright" (16). Article 12 of the Bill of Rights has the same meaning; "All grants and promises of fines and forfeitures of particular persons before Conviction are illegal and void".
A person of "good character" (i.e. one who has no criminal convictions and is not disqualified by law) is therefore entitled to exercise his liberty and claim a Firearm certificate for weapons to be held for self defence purposes. The intention of the Firearms Acts is only to ensure that firearms do not come into the hands of criminals. The provisions of the Bill of Rights and Magna Carta are not contradicted or repealed by firearms legislation since 1920.
Any unjustified refusal of a Firearm Certificate for defensive use may be appealed against in the Crown Court under Section 44 of the 1968 Act. The chief officer concerned would be liable to conviction for perjury ( for breaking his oath of Office), and the common law crime of misconduct in office ( for wilfully neglecting to perform a duty he is bound to perform by common or statute law.). Both he and his police authority would also contravene the provisions of the Health and Safety at Work Act which places a duty on an employer to prevent danger to any person affected by his undertaking. If a person who had been denied a Firearm Certificate for a defensive weapon should be killed as a result of an assault which could have been prevented by use of such a weapon, a conviction for involuntary manslaughter would be likely for the person who was responsible for the refusal.
The Firearms (Amendment) Act 1997 changed the classification of pistols to Section 5 of the 1968 Firearms Act. It did not otherwise change the law because no mention was made in debate of the Bill of Rights . The interpretation Act specifies that a statute may be repealed only by words or where a later enactment is incompatible with an earlier one. Neither of these conditions apply in this instance. (17). A Section 5 Authority is therefore required for pistols to be lawfully owned. The Home Secretary has the same obligations in law to issue such authorities as a Chief officer of Police has for Firearm Certificates and can be held to account through the Courts.
The right to have arms is not restricted to individual use for private self defence, as the following Judgement demonstrates:
"The right of His majesties subjects to have arms for their own defence, and to use them for lawful purposes, (such as hunting) is most clear and undeniable. It seems, indeed, to be considered, by the ancient laws of the Kingdom, not only as a right, but as a duty... And that this right which every (subject) most unquestionably possesses individually may, and in many cases must, be exercised collectively, is likewise a point which I conceive to be most clearly established....
It seems to follow, of necessary consequence, that it cannot be unlawful to learn to use them ( for such lawful purposes) with safety and effect. For it would be too gross an absurdity to allege that it is not lawful to be instructed in the use of anything which is lawful to use...
"The lawful purposes for which such arms may be used (besides immediate self defence) are the suppression of violent and felonious breaches of the Peace, the assistance of the Civil Magistrates in the execution of the laws, and the defense of the Kingdom against foreign invaders".
To strengthen the civil power, and to keep themselves at all times prepared for a vigorous and effectual discharge of their duty as citizens...are, in my view, sufficient visible and legal objects for the continuation of the London Association".
The Recorder of London, 1795. ( The Origins and Development of the Second Amendment. David T. Hardy. 1995).
The London Association was the ancestral to the volunteer movement of the Victorian period which led to the establishment of the National Rifle Association ( the NRA).
The Royal Charter of the NRA states that the object of their activities is " to train Her Majesties subjects in marksmanship in the interests of the permanence of the Territorial Forces". The NRA and their affiliated rifle clubs therefore continue to exercise their rights to train together in the use of arms for defense. This was recognised in the debates in Parliament on the Firearms Act 1920.
On 9th August 1920 Lt. Commdr. Kenworthy MP said, referring to disorder in the world which threatened British interests in the period after the Great War, " I endorse the value of the rifle practice before the War. We are faced with another war now... Having utterly failed to establish the reign of peace we were promised, I think we had better encourage rifle clubs in every possible way and train young men to the profession of arms, Let us give up the idea of disarmament and the reign of peace which the Government have taken". The Home Secretary, sponsor of the Bill, replied " I can assure my Honourable and gallant friend... the last thing which the Government intend is to bring discouragement to any single rifle club. The Bill makes specific provision to give privileges to members of rifle clubs. It is necessary for those members to get permits to use their rifles. Anyone who wants to use his individual rifle can do so on getting a permit. This is a small thing and must be done in future".
The Ministers assurance is thus part of the law of the land which subjects are entitled to regulate their conduct by. The Home Secretary is empowered by the Firearms Act 1968 to "approve" rifle clubs and is obliged to co-operate fully. Other Crown servants, such as the Charity Commissioners and officials of the Ministry of Defence who allocate the use of service rifle ranges to clubs have the same responsibilities. Certain local authorities which have recently adopted policies of non co-operation with clubs are acting unlawfully. Students of the history of British firearms legislation will be aware of the Blackwell Committee report which was prepared by senior civil servants in 1918 and has recently been de classified. Its recommendations were adopted and formed the basis of the 1920 Act which has been carried forward to the present day. The spirit of the report was contrary to the Home Secretaries statements in Parliament. The principle in the case of Pepper v. Hart is that the Ministers words in Parliament are part of the law. What may have been said and done elsewhere to the detriment of the rights and liberties of the subject is not to be taken into consequence or example.
Persons who have duly licensed firearms are entitled, when threatened with death or serious injury to themselves or those whom they are obliged to protect, to use those arms. The legal defence of "duress" excuses them from any conditions which may be applied to their use of weapons in normal circumstances. It is part of the Common Law that every subject, unless excused by infirmity, has a duty to prevent any breach of the peace in his presence. It is said that a shotgun certificate holder decided not to engage Michael Ryan at an early stage of the Hungerford incident in 1988 " for fear of the consequences". If that person had been trained in the use of arms and the rights and obligations of the subject history would have taken a different course.
Correspondence between members of SAFE and the Home Office "operational policing policy unit" has revealed that the present regime appear not to be aware of their legal obligations. The time has come for the validity of the administration of the Firearms legislation to be challenged through the Courts.
The recent seizure of pistols following the passage of the Firearms (Amendment) Act 1997 is invalid because it contravenes the principles described above. When pistols were re-classified to Section 5 of the Firearms Act 1968 those persons who were exercising their right to have arms for defensive purposes as members of rifle clubs should have been given Section 5 Authorities by the Home Secretary. To do so would after all have been "a small thing which must be done in future".
Home > Research archive > 1997 > Do British subjects of good character have a legal right to possess arms for self defence?