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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Harcourt -v- Connetable of St Saviour [2007] JRC 103 (23 May 2007) URL: http://www.bailii.org/je/cases/UR/2007/2007_103.html Cite as: [2007] JRC 103 |
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[2007]JRC103
royal court
(Samedi Division)
23rd May 2007
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Before : |
F. C. Hamon, Esq., O.B.E., and Jurats Tibbo and Newcombe. |
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Between |
Richard Vernon Harcourt |
Appellant |
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And |
The Connétable of the Parish of St Saviour |
Respondent |
Appeal against the revocation of a Firearms Certificate
Advocate P. G. Nicholls for the Appellant.
Advocate M. C. Goulborn for the Respondent.
judgment
the Commissioner:
1. This is an appeal by Richard Harcourt from a revocation of his Firearms Certificate issued on 25th September 2003 by the Connétable of St Saviour. The certificate was to have been valid form the 25th September 2003 to the 24th September 2008. It was revoked by letter signed by the Connétable and dated 12th January 2007.
2. The letter sets out the reasons for the revocation. It is addressed to Mr Harcourt at his address, Flat 10, 5 St Saviour's Crescent, St Saviour. It reads as follows:
"Dear Sir,
Notice of Revocation of Firearm Certificate Number 2684
I write to inform you that I have received reliable information which gives me reasonable grounds for suspecting that you have committed offences under the Firearms (Jersey) Law 2000. Enquiries are continuing in this respect.
Amongst which I have it on good authority that you have failed to notify me, without undue delay, of any temporary or permanent change in your place of residence as required by law.
Further, I am led to believe that you have transferred certain of your weapons to a third party outside of the Island without notifying me and the States of Jersey Police within seventy-two hours of the transfer.
I am also aware of certain irregularities concerning weapons and ammunition that are or were held by you in Alderney. This in addition to two further weapons that have been confiscated from you by the States of Jersey Police as they fall within the indefinite moratorium imposed on the importation of such weapons.
Given the large and comprehensive amount of weapons and ammunition that you are authorised to possess I have a duty to ensure that they are in safe and secure custody. Due to your apparent departure from your last given address I am unable to verify that to be the case.
Furthermore, the whereabouts of all the weapons listed on your certificate cannot, at this stage, be reconciled, and all attempts to make contact with you by the States of Jersey Police have failed. This gives rise to potential issues concerning the illegal importation/exportation of firearms and ammunition.
In view of the serious nature of the alleged offences and the breach of several conditions of Firearm (Jersey) Law 2000, I hereby formally notify you that your firearms certificate is revoked with immediate effect."
3. Before Advocate Nicholls began his address we questioned whether the maxim "le criminel tient le civil en etat" applied. We said this because the affidavit of Chief Inspector Minty states (at paragraph 27) that "a full criminal investigation is quite rightly underway now by SOJP and any resultant conviction and sentence may well actually disbar him from lawful possession (as a prohibited person). Any conviction would then also need to be taken into account in assessing his fitness to be entrusted".
4. The Court of Appeal had summarised the principle (which it considered "as relevant today as ever") in Glazebrook v Housing Committee ([2000] JLR 301) in this way at page 306:
5. Neither Counsel was concerned to advance the matter and we decided to proceed with the hearing.
6. Mr Harcourt is a chartered accountant (we know no more of his qualifications than that) and he has supplied references from Mr Derek Bernard, a well known and long service Committee Member of the Jersey Pistol Club, from Mr Robert Blake, the Secretary of the Jersey Pistol Club and from Mr David Ward the President of the Jersey Pistol Club. All speak very highly of his ability as a successful pistol shooter (he won a medal for Alderney in the 1999 Gotland Island Games). None of the referees expressed any doubt as to his ability to hold a firearms licence. According to Dr Michael Richardson, a Consultant Physician at the Health and Social Services Department he suffered a brain haemorrhage in October 2004. The Doctor says that he "made a full recovery and remains in good health. This has not in any way affected his mental health". Doctor Richardson wrote to say that he had "no concerns whatsoever in him continuing to hold a firearms certificate".
7. Mr Harcourt married Miss Rosemary Hall on 16th August 2004.
8. Each Counsel had differing views of this Court's duty on appeal. We need to examine the matter.
9. The grounds of appeal are:
(i) That no reason has been given for the decision,
(ii) The decision was devoid of merit and/or irrational and/or unreasonable and/or consciously or unconsciously perverse.
10. Article 3 (5) of the Firearms (Jersey) Law 2000 states:
11. In Anchor Trust Company Limited - v- Jersey Financial Services Commission [2005] JLR 428 Birt, Deputy Bailiff said this, having reviewed all the relevant authorities:
12. The Deputy Bailiff went on to deal with a criticism of the learned Bailiff in Token Limited -v- Planning and Environment Committee [2002] JLR 698 and of the learned Deputy Bailiff in Interface Management Limited -v- Jersey Financial Services Commission [2003] JLR 524 and he said:
Quoting a passage in the Guernsey Law Journal by Beloff, J.A., the Deputy Bailiff repeated
13. The learned Bailiff in Milner -v- Constable of St Helier [2006] JRC 178 said:
14. On the 15th September 2003 Mr Harcourt applied for a Firearm Certificate. He applied for an "amended" certificate on the 29th July 2005 for 2 new firearms.
15. On each application form he gave his address as Flat 10, 5 St Saviour's Crescent, St Saviour's Road, St Saviour.
16. To paragraph 13 (on both forms) he gave the answer to the question "If you have lived at addresses other than that stated at 6 during the last five years enter them here":- 'Les Sairces, la Vallée, Alderney".
17. Under paragraph 15 (a) "Do you suffer from any medical condition or disability including alcohol and drug related conditions?" He answered on the first form: "Asthmatic (mild) medication taken for raised blood pressure" and on the second "I am treated for blood pressure and asthma" and he gave the name of his current G.P. (On both forms as Dr M. McClean, Havant Health Centre, Havant, Hants.)
18. He wrote on the second form "Please refer to Certificate No 2684 which is accurate issued 25.9.2003" and his application (on the second form) was for a pistol and a carbine both to be used at Crabbé in competition. There was on the second form no request for additional ammunition. His original firearm certificate (issued in September 2003) gave a list of the firearms and ammunition which would be used solely during the course of the holders activities as a member of an approved shooting club. There were 29 firearms listed which included semi-automatic pistols, revolvers, a lever action carbine, semi-automatic carbines and bolt action and semi-automatic rifles. Mr Harcourt was authorised to purchase or acquire two semi-automatic pistols and one semi-automatic rifle. He was authorised to possess 16,200 rounds of ammunition.
19. As we have said the Constable wrote the letter of revocation on the 12 January 2007 and sent it to Flat 10, 5 St Saviours Crescent, St Saviour where Mr Harcourt had said he was living and where the guns and ammunition were stated by Mr Harcourt to be kept.
20. Let us deal with what we consider to be the most important factor of the revocation.
21. One of the questions that is asked (and it is an essential question) is this: "If a firearms certificate is granted, renewed or varied where will each of the firearms and the ammunition specified be kept when not in use and what arrangements have been made for their safe custody?" Mr Harcourt has written on the original form: "At home address, Firearms and ammunition will be stored in an approved, lockable, metal gun cabinet, secured to the fabric of the flat (our underlining) building".
22. The Second application form has these words "At home address in approved metal cabinets secured to the fabric of the building".
23. Of course the addresses on each form is the flat in St Saviour's Road. On the 16th May 2006 Mr Harcourt wrote a hand written letter to the Constable of St Saviour to say that he intended to move to La Caroline, La Grande Rue, St Mary and that he would make arrangements to transfer his Firearms Certificate accordingly.
24. In his sworn Affidavit Mr Mallet the Parish Secretary of St Saviour (a post that he has held for 16 years, before that time he was Parish Secretary of Grouville for 13 years) says that he has "no trace of this supposed letter and absolutely no recollection of having seen anything from Mr Harcourt suggesting a change of residence. I find the suggestion of such a handwritten letter from Mr Harcourt curious, given that every letter I have ever received from Mr Harcourt has been printed and unsigned, and also given that I had received letters from Mr Harcourt dated 30th May 2006, 24th June 2006 and 21st August 2006 all of which continued to quote the St Saviour address". It seems to us essential for the authorities - the Constable and the States Police to know where firearms are stored. In his affidavit Mr Harcourt explained that the flat in St Saviour was a share transfer company, owned by a limited liability company which paid the parish rates. The property in St Mary, La Caroline, is apparently a dégrèvement property which if the dégrèvement occurred after the 9th June, 1993 he is, as occupant, deemed to have a - h qualifications. It is clear that Mr Harcourt moved to St Mary "in the latter part of 2006".
25. On 27th July 2006 Mr Harcourt made application for a Firearm Certificate to the Parish of St Mary. On this form his home address is given as La Caroline, La Grande Rue St Mary but the section of the form which shows addresses during the last five years mentions only the St Saviour Flat. There is no mention of the Alderney address or any other address.
26. We have a letter from Mr Philip Courtney, the director of an Osteopathy Practice in South London who wrote on the 16th March, 2007 to say that "I am further aware that in November 2004, Richard's partner (that is his wife Mrs Rosemary Hall whom he married on 16th August of that year) sold her property in Alderney at Les Sarces, La Vallee. Richard's Firearms Collection was stored in those premises.
Despite being extremely unwell and against advice, Richard left hospital to travel to Alderney to transfer the bulk of his Firearms to Jersey so as to ensure that he did not breach any laws or regulations in Alderney or anywhere else".
27. We find this statement surprising when Mr Harcourt made application to the Parish of St Saviour and his Firearms Certificate was granted on 25th September 2003.
28. It must be noted that on the 9th January 2007 (the letter of revocation is dated the 12th January 2007) a search was effected by the police at the St Saviour's Flat. According to the affidavit of Chief Inspector David Minty "An Alderney registered motor vehicle was in situ and parked at that address, a vehicle registered to (Mr Harcourt). The vehicle was parked off road. However, the St Saviour address was discovered to be vacant" (our underlining) "with no sign of (Mr Harcourt) living there or anyone else. The premises and vehicle were searched in an effort to locate and seize the firearms but to no avail".
29. On the 16th January 2007 at about 5 o'clock in the evening the surrender of all the firearms and ammunition took place at the St Mary address for which (although an application had been made) no certificate had been granted. The Connétable of St Mary, Mr Kenneth le Brun, swore an affidavit for the purpose of this appeal hearing. In it he tells how he met Mr Harcourt in May 2006. Mr Le Brun suggested a new firearms certificate application. A letter was received from Mr Harcourt about a complaint that he had made to the Jersey Police Complaints Authority. (This actually came to nothing) and Mr Le Brun says.
"...
6. I heard nothing further from Mr Harcourt until 21 August 2006, when I received a letter from his St Mary address (page 5 of KALB1), accompanied by his application form (pages 6 -13 of KALB1). Mr Harcourt's covering letter explained that the form was delayed by difficulty tracking down sponsors. He offered to call in to see me in person to explain the application, and added that he would call in the following week to confirm whether his help was required.
7. I placed all the correspondence and the application form in Mr Harcourt's personal file and awaited his attendance. My initial concerns were in relation to Mr Harcourt's health and the location of some of the firearms he wished to hold. It appeared that some of the weapons were in Alderney and the UK as well as in Jersey. I could not in any event issue a firearms certificate for weapons held outside of Jersey. It is fair to say that my initial view was that Mr Harcourt's application would be difficult to process because of the surrounding issues. Nothing has changed my initial views.
8. In the event Mr Harcourt did not call into the Parish Hall as he had indicated, and I thought nothing more of Mr Harcourt's application until 16th January, 2007, when Mr Harcourt attended the Parish Hall to see me. He informed me that his firearms had been taken away by the States of Jersey Police. Mr Harcourt brought with him a letter of revocation from the Connétable of St Saviour and a copy of hand-written letter dated 16th May 2006, addressed to the Parish of St Saviour, informing them that he intended to move to St Mary.
I informed Mr Mallet that nothing more had been heard from Mr Harcourt since then, and the application had been held pending.
30. Mr Harcourt, in his second affidavit of 23rd April 2007 heads paragraph 11 "Comments on the un-sworn Affidavit of Mr Le Brun" (the affidavit on our file was sworn by Mr le Brun before an Advocate on the 3 April 2007) denies Mr Le Brun's version and at one points says that "his statement is untrue".
31. There is so much that we could deal with in this appeal hearing: Mr Harcourt married Rosemary Hall on 16 August 2004; his English passport was altered on the 24th September 2004 to the name of Richard Hall. He signed the passport "R. Hall". He says in his second affidavit, having dealt with an explanation given by Advocate Nicholls:
"I should perhaps explain that the principal reason I took no further steps to adopt my wife's surname, was my concern that this may result in beaurocratic difficulties, not least in the context of accessing vital medical records required for the purposes of my ongoing medical treatment. In particular, I can confirm that I took no steps to change my bank, medical, tax, social security or driving license details. I should also explain, that in the event that I do make a full recovery from my present illness, I fully intend to adopt my wife's surname, and in the event that I do, that I will take all the necessary consequential steps. That is, however, very much an issue for the future. I accept with the benefit of hindsight, that I should have perhaps have arranged for my passport to revert back to my old name, but I simply saw no pressing need to do so, and moreover, given that in the long term I still intended to adopt my wife's surname, I saw no point in so doing. There was no sinister or ulterior motive, as now appears suggested, and there was certainly no attempt at subterfuge."
32. Mr Harcourt has no residential qualifications to live in Jersey. His house in St Saviour is company owned. The house in St Mary is apparently "dégrèvement" property and does not require qualifications. Mr Harcourt travels extensively. This may be the reason why so many letters sent to his address in St Saviour clearly did not arrive and the Notice of Revocation was sent by registered and unregistered post to the Flat in St Saviours to Alderney, France, Havant, Emsworth, Portsmouth and Chichester. All the registered letters were returned undelivered.
33. It is quite clear from the law that the Connétable of the Parish in which the person resides has control of the licence. So under Article 4:
34. "Connétable" is defined for the "purposes of this Article" (Article 3); Articles 4 and 8 and Articles 9 (2) as .
35. It is clear to us that the licence must be applied for in the parish in which the owner of firearms resides for the time being. The certificate once granted will, unless there are extenuating circumstances, last for 5 years and is then renewable by the Connétable which can only mean "the Connétable of the Parish in which the applicant resides."
36. We do not at this stage wish to get involved in what is clearly a deep argument concerning the nature of the weapons seized. We shall merely say this: By analogy, a driving licence is obtained from the Connétable of the Parish in which the applicant resides. By Article 41 of the Motor Vehicles (Driving Licences) (Jersey) Order 2003 if the holder of a licence "
37. That Article has now been amended by the Motor Vehicles (Driving Licences) (Amendment No 6) (Jersey) Order 2007. This does not alter the original order: it merely covers the provision of the new form of driving licence issued after 4th April 2007 and it requires that all necessary documentation be provided to the parochial authority
38. The Firearms (Jersey) Law 2000 is nothing like as detailed.
39. It merely sets out that a firearms certificate is held on condition that the certificate holder shall:
40. This does not appear to us to be satisfactory but one can only presume (the law appears to be silent) that the States of Jersey Police Force would visit the new property to see if the guns and ammunition were kept in a secure and safe place.
41. The Certificate was issued to Mr Harcourt with a condition (there were two) that it was "subject to the conditions specified in Article 9 of the Firearms (Jersey) Law 2000" Article 9 (1) (b) states that the certificate holder shall:
The Article goes on to say that the holder shall
42. Mr Harcourt says that he moved to his St Mary address "in the latter part of 2006". He says in his affidavit that he is a very private person with a number of addresses both in and out of Jersey".
43. In September 2005 - Mr Walker the Alderney Gaoler Court Officer and Employment Permit Inspector wrote a report.
44. In a Supplementary report written on 10th October Mr Walker wrote:
"Further to my report of 21st September, I have discovered that the following two companies have very recently been registered with the Companies Registry in Alderney.
1. Shield Ltd Companies No. 1547.
2. Media Technology Ltd. Companies No 1548.
Both show Harcourt of 3, Le Bourgage, Alderney, as the witness to the signature of the director of each of those companies and his name is followed by the legend 'Accountant and Witness to the Signatures'. These were both witnessed in the Hampshire area of UK where it is known that Harcourt has a property.
No 3, Le Bourgage is owned by Mr Philip Courtney who is resident in UK. He is an osteopath who has a practice in the Croydon area of UK and who runs an occasional osteopathy clinic in Alderney from a premises at 7/8 Ollivier Court, Ollivier Street, Alderney. Both of these newly registered companies show their Registered Office as 7/8, Ollivier Court, Ollivier Street, Alderney.
In respect of Harcourt, a letter sent by the Court Office to him at his French address has been returned to the Court Office in Alderney, marked 'not known'.
Submitted as an addition to my report of 21.09.05 for the information of the Chief Executive's Office".
45. Mr Harcourt says in his first affidavit that "since July 2006 I have lived at La Caroline, St Mary. It is therefore somewhat surprising to us that Mr Mallet the Parish Secretary, received letters from the St Saviour address on the 28th July and 21st August 2006. The letter of the 28th July (which was received at the Parish Hall on 3rd August was replied to by Mr Mallet and it was sent to the St Saviour's address. The reply (as always unsigned) from Mr Harcourt is dated the 21st August and is sent from the St Saviour's address when Mr Harcourt had moved to St Mary. Mr Harcourt used his St Saviour address in every month after he had moved until the last letter to DCI Minty on 27th November 2006.
46. His handwritten letter (which the parish secretary said was never received) was sent by Mr Harcourt from the U.K. It is headed Flat 10, 5, St Saviour's Crescent. Mr Harcourt's explanation of his sending letters marked with a St Saviour address is this:
"I did not move out of my St Saviour's address until the end of June 2006 and for a short period thereafter" (that is for some two months) "I continued to send and receive my post from that address simply because it was a more secure address than my address at St Mary. I was also content to allow my post to come from Flat 10, because I knew that, if for example I was out of Jersey as I frequently am, the new owner Mr John Anderson (a very old acquaintance of mine) would forward it onto me. This would obviously not happen if my post were received at my new address whilst I was away".
47. It is in the light of that statement perhaps not clearly understandable why the registered letter containing the revocation (as with all the other registered letters) was returned undelivered.
48. We are satisfied on the question of the moving of the firearms to St Mary without authorisation that Mr Harcourt is in clear breach of the law. We cannot, as a matter of fact, agree that Mr Harcourt notified the police and the Connétable of his change of address. We are well aware that Mr Harcourt produced a handwritten note but the Parish Secretary has no knowledge of its arrival. It was sent from England and photocopied there by Mr Harcourt. He was without access to a computer.
49. It seems to us entirely sufficient for the Constable to have revoked the licence on the 12th January 2007 when the search of the St Saviour's premises on the 9th January revealed no guns, no ammunition and no one living there. Article 9 (b) of the Firearms Law is specific. It says that ". Mr Harcourt says that he "unintentionally" neglected to notify the States Police but he contends that his failure is no more than a "technical breach". It is clear to us that the breach of Article 9 is sufficient for the Constable to put into effect the revocation of the certificate. We dismiss the appeal.
50. Mr Harcourt, in our view, would have done better with legal assistance. We can only advise that he apply for a second time for a Firearms Certificate in the Parish of St Mary and that, if he chooses to make application he should do so through his lawyer.
51. The Court directed that, in the event of the Appellant failing to meet the said costs, the firearms shall be sold and the monies realised retained by the Respondent.
