Tuesday, 3 January 2012

Do UK firearms laws need revising?

Yesterdays news of the shooting of 3 women in the County Durham village of Horden followed by the gunman killing himself is causing the media, community leaders and others to consider whether firearms regulation in the UK is appropriate.

In the case of the Horden incident the man who appears to have killed himself and the three women has been confirmed by Durham Constabulary as being the legitimate holder of 3 shotgun licences and licences for 3 section 1 firearms.  Durham Constabulary have also confirmed that they considered revoking the licences of the holder in 2008 when a family member raised concerns about the mental health of the holder, stating that they were concerned he had threatened to self harm.  Durham Constabulary have voluntarily referred the matter to the Independent Police Complaints Commission for review and possible investigation.  Durham Constabuilary have stated that their homicide investigation team will liaise with partners in the health sector when reviewing what action was taken (or not taken) when the concerns about the licence holders mental health were raised.  Clearly, the review and investigation will have the opportunity of presenting and reflecting upon the facts and determining if their were any failures in the current system, if so, how these failures could be rectified and if any improvements can be made to the position.

Whilst not wanting to pre-empt this review, the events of Horden do give us the opportunity to think and reflect about the way that firearms are controlled within the UK.

There is a constant tension between those who wish tight gun control laws - seeing this as a method of seeking to ensure public safety and those who are enthusiasts of shooting etc who are often concerned about the rigorous nature of British law concerning firearms.  It is true that British law is amongst the strongest in the world.  Clearly in a world of competing rights judgements have to be made about whose rights should be restricted and in what circumstances.   It is imperative that when rights are restricted that they are reviewed - there may be better ways established of ensuring safety than the current methods.

It is important to identify at the start of any discussion on firearms control, that there are two types of firearms in circulation within most countries - those legitimately held and those either illegally or unofficially held.  Nothing in this discussion is meant to relate to illegally held weaponry.  Regardless of how onerous firearms controls are this will not prevent some of the more determined criminals from accessing firearms - this should however not necessarily be an argument against restricting legal access to firearms.  The law on illegal weapons should be robustly enforced to protect the public.  Most legitimate firearms users would support a crack down on illegally held weapons. 

It is interesting to consider that several multiple murders have been carried out with legally held firearms.  Dunblane, the Cumbria Shootings and Horden being just three examples.  Whilst the incidence of firearms offences with legitimately held firearms may be a relatively small number - the impact of those crimes is significant (both to the individuals connected to the crime) and by the nature of some of the crimes.

As the law currently stands owners of shotguns, rifles and other firearms must undergo a variety of checks to ensure that they are appropriate people to be in possession of firearms.  The principle aim of these checks is to maximise public safety.  People applying for a licence must declare all previous criminal convictions and any relevant medical conditions, including treatment for mental illness and/or depression.  Police services have the power to revoke firearms licences and require the surrender of weapons where there are new convictions and/or a change in the mental health of the licence holder. 

The events of Hungerford, Dunblane, Cumbria and now Horden have all caused questions to be asked about whether enough is being done to prevent firearms being legitimately in the hands of those who may be mentally unstable.

A former Metropolitan Police firearms advisor told the BBC Radio 4 Today programme this morning that current legislation was probably adequate, although the level of scrutiny needed to be addressed.  The former advisor, Roger Gray, said  "I would feel that if someone started to present themselves as a self harmer, or as a danger to themselves or others, the possibility of a firearm should be scrutinised to the nth degree and perhaps the firearm should be taken away.  I think the framework of law is sufficient, it is the application of that framework which needs to be looked at.  We need to put more pressure and make more resources available to literally police the ownership of firearms to a greater extent.  The level of scrutiny, I would say, needs to go up, and this one has definitely slipped through the net."

The initial reaction from the Prime Minister, David Cameron, has been to say that he will wait for the current investigation to reach its conclusions before making any judgement.  Although he did state that there needs to be a balance between the need to protect the public with ensuring that regulations are effective, practical and fair.

Ministers are looking at guidance and the way gun laws are implemented following a critical report by the Home Affairs Select Committee.

Both types of firearms certification are reviewed every five years, although fewer than 1% of applications to renew a shotgun licence were rejected in 2009-10.

Home Office figures for England and Wales show there were 141,775 certificates on issue for Section One firearms and 580,653 for shotguns at the end of March 2010.

Police revoked 302 firearms licences and 1,076 shotgun licences in 2009-10.

The British Association for Shooting and Conservation (BASC) have called for the "facts" in the case to be looked at before drawing any conclusions.  "There has just been a comprehensive parliamentary review of firearms law in the UK and the facts in this incident need to be firmly established."

David Taylor, Shooting Campaign Manager for the Countryside Alliance, said he welcomed the government's response on the issue.  "The laws that govern shooting have been carefully drawn and added-to over several years so that today they are as rigorous and all-encompassing as possible.  There looks to have been a failure at some point in the process in this event, and the most sensible action is to investigate what went wrong and then decide how it might be fixed.”

In December 2010, the Commons Home Affairs Select Committee described legislation in England and Wales as a "complex and confused" mess and called for tighter restrictions on gun licences.
The MPs called for convicted criminals who receive suspended jail terms - like taxi driver Derrick Bird, who ended up killing 12 people in the 2010 Cumbria shooting spree - to be stripped of firearms licences to prevent future incidents.

Shooting organisations stress that the UK's gun laws are already extremely tough and have warned against a "knee-jerk" reaction to the latest tragedy.

In the response to the Cumbria shootings the Home Secretary disclosed that the two weapons Derrick Bird  used in the shootings were covered by a shotgun certificate he had since 1995 and a firearms licence he obtained in 2007 and acknowledged that this raised questions concerning the effectiveness of UK gun laws.

The process Bird needed to go through to get a firearms certificate for the .22 high-calibre rifle – granted for "shooting vermin and recreational target practice" – included providing the names and addresses of two referees, but did not necessarily include a check with his doctor on his mental health background.

Gun owners are required to give permission for the police to approach their GP but the Home Office guidance is clear that such approaches "should not be made as a matter of routine", only if there are grounds for concern. At the same time, licensing officers are told it is "impractical for a psychiatric assessment to be conducted on an applicant's suitability to possess firearms". Other potential loopholes include the fact that it is possible to renew a shotgun licence by post in some places, including Cumbria, every five years.
This means an individual can legally own a lethal weapon for 10 years without a home visit from the police or any other direct contact with licensing authorities.

The gaps in enforcement begin to explain how it is possible to have some of the toughest gun laws in the world – and yet have 1.7m shotguns, rifles and pistols in legal private possession.

But the whole question of whether doctors will get involved in gun licensing appears to be fraught. The British Medical Association and the Association of Chief Police Officers spent much of 2010 discussing whether GPs could place tags electronically on medical records indicating whether the patient held a gun licence or had applied for one. Doctors were careful to resist the idea they should become in any way obliged to monitor or oversee the mental health of people holding firearms licences.

The initiative followed an incident in which a Shropshire businessman, Christopher Foster, shot his wife, Jill, and their daughter, Kirstie, before setting fire to the family home and shooting himself with a legally held .22 rifle.

It will be important in the Horden case to establish if the police did contact a doctor when concerns about the licence holders mental health were raised.  If so, what questions were asked and how did the doctor reach their conclusions forming advice to the police?  If not, why did the police feel medical advice was not required?

Although the majority of gun-related incidents are carried out by people not suffering from a mental illness, access to guns by some psychiatric patients is an issue because of the possibility of self-harm and, much less likely, harm to others - although cases where others have been harmed have tended to result in multiple fatalities or injuries.

Gun ownership and gun control were already under scrutiny in the UK before the events of Dunblane but this incident put the issue high up on the political agenda. On 13 March 1996, 43-year-old Thomas Hamilton entered the gymnasium of Dunblane Primary School and opened fire on a class of 29 5- and 6-year-olds. One teacher and 16 children were shot dead and a further 12 children and 2 teachers were shot and injured. Hamilton then shot himself dead. He was a former Scoutmaster who had been turned down as a voluntary worker at the school. Soon after the incident Lord Cullen held a public inquiry which made many recommendations, including improvements in school security and improved vetting and supervision of adults working with children. Cullen also recommended stricter rules on the control and use of firearms. The ruling Conservative Government at the time declined to ban handguns but such a law was passed within 3 months of the Labour party coming to power in May 1997. Lord Cullen’s conclusion regarding Hamilton was that there was no evidence that he was or had been mentally ill and he used firearms which were legally held. Furthermore, Lord Cullen felt that the tragedy could not have been predicted. In tabloid journalistic terms Hamilton was deemed ‘bad and not mad’ but despite this the tragedy has led to scrutiny of the possible risks posed to society by people suffering from psychiatric disorder who have access to guns.

 The powerful pro-gun lobby in the USA argues that wider access to guns enhances public safety and the carrying of guns by the public has a deterrent effect on violent crime. The main aim of US policy is to prevent guns falling into the wrong hands. The policy of the British government, however, has been to reduce the number of guns in circulation thereby hoping that less will be available for criminal use. Over the years there have been many amendments to UK gun licensing law, with the result that we now have the most stringent controls in the world. The statistic that the UK has approximately 400 firearm deaths per year (7 deaths per million population) as opposed to about 30 000 in the USA (106 deaths per million) suggests that the UK approach may work. Amendments to UK gun laws, however, have made interpretation and operation of the current law complicated.

The responsibility for firearm and shotgun licensing rests with regional chief constables but in practical terms day-to-day business is devolved to a police licensing department. The UK recognises two classes of guns: firearms and shotguns. Firearms refer to handguns and rifles, and as these are deemed more lethal any certificate has to specify each individual gun. Shotguns are much more numerous in the UK and an individual can have an unspecified number of shotguns on a single certificate.
Pre-Dunblane, to apply for any gun licence an applicant had to fill out a questionnaire and answer specific questions about the presence of epilepsy or any form of psychiatric illness. Following a 1988 amendment of the original 1968 Firearm Act the application had to be countersigned by a member of parliament, justice of the peace, minister, doctor, lawyer, civil servant, bank officer or a person of similar standing. The countersignatory had to be resident in the UK and to have had personal knowledge of the applicant for at least 2 years. The duty of the countersignatory was to verify the facts on the form and to state that they ‘knew of no reason why the applicant should not be permitted to possess a firearm’. This system posed a dilemma for doctors. A doctor could be signing in a capacity of simply knowing the person for 2 years, i.e. not necessarily knowing about health-related issues. Alternatively, a doctor could countersign a form with extensive knowledge of a person from the doctor-patient relationship. Moreover, if the applicant had declared a history of psychiatric illness it could be argued that a doctor was in some way predicting or guaranteeing future behaviour. The British Medical Association (BMA) ruled in 1996 that doctors could sign in their capacity as a person of good standing but rarely would it be the case that a doctor had sufficient knowledge of a patient to justify their judgement that a person could safely possess and control a firearm. Subsequently there was a vote taken at the BMA annual conference in June 1996 ruling that doctors should not sign applications in any capacity, although many GPs have agreed to do so.

Lord Cullen criticised the countersignature system arguing that the procedure was essentially negative, i.e. the less the countersignee knew of an applicant the less difficulty he/she may have in supporting the application. Cullen recommended that the system should be replaced, with two referees each completing a report. Such a model is now in place for firearms certificates. An applicant completes the form quoting the names of two referees. The applicant is interviewed by the police and there is a home visit to inspect security arrangements for the storage of guns. The referees can be from any background or occupation but must be of ‘good character and honest’. The referee verifies the details on the application form and is asked to comment on the general character and background of an applicant. The referee is not required to guarantee future good behaviour.  Current guidance advises that for a shotgun licence doctors may act as referees but they should act in a personal rather than a professional capacity and as such should not request a fee.

 Lord Cullen considered a proposal that general practitioners should provide a mandatory report for a person applying for a gun licence. He rejected this stating that ‘I am entirely satisfied that general practitioners cannot reliably assist in the identification of those who pose a risk of violence and those who do not’. Cullen rejected a proposal for mandatory psychiatric or psychological assessments for similar reasons.  Any system, however, which does not use medical information in the gun licensing process is arguably flawed. To quote Dr Laslo Antal, a general practitioner in Liverpool, ‘a general practitioner cannot see into the future but they can see into the past’.  Currently an applicant gives permission for the police to approach their general practitioner at any time. A general practitioner would not be approached as a matter of course but only if concerns were raised by the application form, the reports from the referees, the interview or the home visit. Presumably, psychiatrists or other specialists could also be approached in a manner rather like the sharing of responsibility between primary and secondary care in advising the Driver and Vehicle Licensing Agency regarding fitness to drive. The guidance to the police emphasises that doctors should be asked for factual information only and should not be asked for opinions, endorsement of an application or its opposition. Doctors, however, would be open to oppose granting of a licence to an applicant but they would be expected to justify this. There does not appear to be a requirement for a gun licence holder to notify the police should they develop a psychiatric condition, as is the case with a driving licence. Doctors, however, can approach the police at any time if they have concerns about a patient who is known to have access to a gun, although the General Medical Council rules concerning breach of confidentiality apply.

 The most common reason for refusing an application is that the case for wanting access to a gun is not good enough. Less common reasons for refusal are for ‘in temperate habits’ and ‘unsound mind’. Intemperate habits can refer to a history of alcohol or drug misuse or aggressive/antisocial behaviour, particularly in a domestic setting. This is particularly important as domestic shootings are common in the USA, suggesting that the availability of a gun in the home can turn an argument into a homicide. In Guidance to the Police the subject of unsound mind is described as ‘a particularly difficult and sensitive area’ according to a 2002 Home Office report.  There is no definition of unsound mind but chief officers are advised to be alert to reports from doctors of depression, suicidal tendencies, emotional instability, unpredictable behaviour or being subject to the 1983 Mental Health Act presently or in the past. The guiding principle as suggested to the Cullen Inquiry by the Royal College of Psychiatrists is ‘common sense rather than (spurious) scientific grounds’.

 It is harder to obtain a firearm/shotgun licence now than in the recent past, with refusal of applications rising from 1% in 1994 to 3.5% in 2000. Applicants can appeal against refusals/revocations to the Crown Court in England and Wales or to a sheriff in Scotland. Doctors may be called to submit reports or be cited to appear in person but they should be mindful of the submission to the Cullen Inquiry by Professor David Cooke, forensic psychologist, who stated that ‘It is impossible to predict with certainty who might be unsafe with a gun'.  Such an opinion seems intuitively sensible but there is a danger of the police viewing applications from people with any history of contact with psychiatric services with increasing conservatism. This would be in line with the acceptance of society that minimising risk takes priority over personal rights, although the loss or refusal of a firearm certificate may have far-reaching implications if a gun is required for occupational reasons as may be the case for gamekeepers and farmers.

There may be no need for review of current firearms law as a result of the Horden shooting (as the police advisor is quoted above).  It may be more of ensuring that current regulations are followed.  To determine this with any certainty requires knowledge that the police and IPCC investigation will hopefully yield.

The investigation may lead the police to wonder whether they need better advice on mental health with regards access to firearms.  Should there be a medical review?  Should the medics be required to evidence their decision making process?

Surely, no one with common sense can disagree with the thought that preventing those with mental health issues from possessing a firearm, may in some cases, be a sensible action to take with regards public safety?