BBS/britain
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BBS/britain
| File Name: | britain.jas |
|---|---|
| Author: | Unknown |
| Date: | Unknown |
| Posting BBS: | Unknown |
| Key Words: | Politics |
FIREARMS LEGISLATION IN GREAT BRITAIN
(by Jan A. Stevenson)
Most people of retirement age, though they may not realize
it, were born at a time when there was no firearms legislation
to speak of in this country. Nor had there ever been, for the
first Firearms Act of any substance was that of 1920. The 1920
Act was a comprehensive one and gave Britain an extensive system
of controls that have rarely been exceeded in a democratic
society. Subsequent enactments have put more flesh on the bones,
but the structure of controls that the government of the day
devised serves us still.
From the point of view of social history, as recent
research has made clear, the 1920 Act is a particularly
important document. It marks a profound shift --indeed a
reversal-- in the British state's attitude toward its citizens.
In 1900 the Prime Minister said that he would "laud the day when
there was a rifle in every cottage in England." The Lord Mayor
hosted a meeting at Mansion House, attended by, among others,
the Duke of Westminister, the Archbishop of York and the Lord
Mayor of Liverpool, with the purpose of founding a, "Society of
Working Men's Rifle Clubs, for facilitating rifle shooting, more
especially in the evening, with small bore rifles and
inexpensive ammunition, as an ordinary branch of recreation by
working men's and working boys' clubs and institutions."
The Duke of Norfolk undertook to chair the new Association
while Lord Roberts, then Commander-in-Chief, had agreed to
accept the presidency on his retirement from the Army.
According to The Times: " ... the scheme would be a
cooperative one, that is the gentlemen of the country would
contribute to the funds, whilst the working men would be
expected to join the clubs and make themselves efficient in the
matter of rifle shooting."
This was very different from the purpose of the 1920 Act,
which was precisely to ensure that working men would not be able
to lay hands on a rifle or make themselves proficient in its
use. It was not deemed politic, however, to say so, and the bill
was put through as a crime prevention measure. Its progress
through parliament had been carefully prepared, and it
encountered very little opposition.
Police Superintendent Colin Greenwood who, as a Cropwood
Fellow at the Institute of Criminology, University of Cambridge,
during 1970-71, was the first to conduct serious, scholarly
research in this field, recalled some years later how baffled he
had been by the motivation of the 1920 Act.
"The question troubled me for some time because I was naive
enough to accept the assurances of the day that their
legislation was aimed at the armed criminal...During the period
1911 to 1913, firearms were involved in an average of 45 crimes
of all types per year. During the period 1915 to 1917, the
average had fallen to 15 cases per year. Would to God that we
could have such figures today. Why, then, was legislation
introduced? ... It was not until I read the diaries of the then
Cabinet Secretary that the truth emerged." [Speech; Rhodes
House, Oxford, June 1983.]
The truth, as Colin Greenwood belatedly discovered, and as
recently released Cabinet papers have underlined, was that the
Government was extremely concerned by the possibility of a
Bolshevik style revolution in Britain. The police were
insufficient to deal with the anticipated troubles; the Army,
after demobilization, of conscripts, would be insufficient as
well. According to the Chief of the Imperial General Staff,
there would soon be only 38 Regular Army battalions in Britain.
"On the assumption that an adequate police force is in
existence, it is considered essential to maintain the infantry
garrisons in Great Britain at not less than 40,000 men in order
to give a minimum strength of 30,000 effective bayonets for
employment in an emergency." [PRO CAB 24/96 XCH 62903]
The Chief of the I.G.S. was unable to guarantee this beyond
March of 1920 and added that, "Further, an adequate police force
does no apparently exist." He warned that if the Army were
called upon at an early stage of civil disturbances, "it will be
dispersed, and thus the last reserve in the hands of the
Government will be dissipated."
Sir Eric Geddes, Minister of Transport, complained that
there were only eight battalions in the north, and he feared,
"...a revolutionary outbreak in Glasgow, Liverpool or London in
the early spring, when a definite attempt may be made to seize
the reins of Government ... It is not inconceivable that a
dramatic and successful coup d'etat in some large center of
population might win the support of the unthinking mass of
labour..." [PRO CAB 25/20]
The Home Secretary reminded the Cabinet that the Bolsheviks
had staged a revolution in Winnipeg, and now that the wartime
blockade was dismantled, their emissaries could be expected in
Britain, doubtless bearing vast quantities of forged five-pound
notes such as had been discovered in Odessa, when the White
Russian Army had taken the city.
Geddes proposed: "...a meeting of Mayors of provincial
cities (to) ascertain from them how far they are prepared to
create skeleton organizations locally for dealing with civil
disturbances when they occur, such skeleton organizations to be
of a secret nature." [PRO CAB 25/20]
A committee chaired by Sir Nevil Macready, Commission of
Metropolitan Police, recommended that each regimental depot
throughout the country should hold 1,000 stand of arms and
appropriate quantities of ammunition as "the best method of
making them available to loyalists in the event of an
emergency." Bonar Law had urged the month before that, "weapons
ought to be available for distribution to friends of the
Government."
The Prime Minister had been told in Cabinet that, "A bill
is needed to license persons to bear arms. This has been useful
in Ireland because the Authorities know whom was possessed of
arms." The bill was soon forthcoming. It was introduced into the
House of Lords on the 19th of April and sent to the Commons on
the 6th of May.
The Home Secretary, Mr. Edward Shortt, gave no hint of the
matters that were so tormenting the Cabinet. The bill, he
assured the House, was, "...designed to maintain greater control
so that, as far as possible, criminals or weak minded persons,
and those who should not have firearms may be prevented from
having these dangerous and lethal firearms. As far as possible,
we have provided that legitimate sport should not be in any way
hampered, and so that any person who has good reason for
possessing firearms, or to whom there is no objection, may be
entitled to have them; but we hope, by means of this bill, to
prevent criminals and persons of that description from being
able to have revolvers and to use them."
These words sound remarkably similar to those recently
uttered by today's Home Secretary, Douglas Hurd. Mr. Shortt's
reassuring tone, as he described to the House his concern to
protect the public from armed crime whilst safeguarding the
legitimate interests of shooting sportsmen, was no doubt in
contrast to the atmosphere in the Cabinet Room in Downing Street
where he and his colleagues anxiously discussed the possibility
of strafing the working class from the air whilst fielding
30,000 bayonets against them on the ground.
What happened to Lord Salisbury's hope, expressed only two
decades earlier, of having a rifle in every cottage? What
happened to the absolute trust on the part of the ruling
classes, as exemplified in the founding of the Society of
Working Men's Rifle Clubs, in the patriotism and decency of the
working class? The view then was that if Britain should have
need to raise a mass army of national defense, the working class
would form the infantry, and that the defense of the realm would
depend on their ability to use their individual weapons with the
expertise born of years of practice. That view, as it turned
out, was to be vindicated within fifteen years in the trenches
of Northern France. And finally, what made the Government so
determined to truncate one of the essential liberties of
freeborn Englishmen that they would legislate that liberty to
extinction?
Clearly, the Bolshevik Revolution in Russia and the
formation of the "Third International" with the object of
exporting insurrection, had provided the panic element. But it
would be oversimplistic to suggest this as sufficient
explanation, for there had been several bills during the pre-war
period that had presaged the 1920 Act. During the second reading
debate in the House, the Member for Hull, Lt. Commander
Kenworthy, expressed great concern: "In the past, one of the
most jealously guarded rights of the English was that of
carrying arms ... It has been a well known object of Central
Government of this country to deprive people of their weapons."
The bill itself was based on the secret report of a "purely
departmental" committee chaired by Sir Ernley Blackwell, KCB,
who had been charged on the 6th December, 1917, to consider the
"restrictions which should be imposed upon possession,
manufacture, sale, import and export of firearms in the United
Kingdom after the war." Blackwell was Assistant Under Secretary
of State for the Home Department, and his committee recognized
two main sources of postwar danger: the "savage or
semi-civilized tribesmen in outlying parts of the British
Empire" and "the anarchist or 'intellectual' malcontent of the
great cities whose weapon is the bomb and the automatic pistol.
There is some force in the view that the latter will in future
prove the more dangerous of the two."
We might tentatively suggest that the Bolshevik spectre
served to focus the anxieties aroused by the prewar anarchists.
The anarchists, however, were regarded for the most part as
foreign malcontents rather than as a direct threat to the
domestic body politic: Communism, on the other hand, risked
infecting the lower classes across a broad spectrum.
One of the documents that Blackwell's committee considered
was the draft pistols Bill of 1911, with which Blackwell himself
had been closely involved, but that had never been put before
the House. It had, for the first time, incorporated a system of
certificates to be administered by the police, and had been
intended to stiffen the Pistols Act, 1903, which had succeeded
in its passage through Parliament only by virtue of being
anodyne. There had been previous attempts to legislate in 1887
and 1893, but these had been soundly rejected on the grounds
that they represented an unconstitutional infringement of basic
rights.
Of that, there should be little doubt. Sir William
Blackstone's Commentaries, first published in 1765, had
meticulously described the development, substance and
significance of "...the rights, or as they are frequently
termed, the liberties of Englishmen...": "And we have seen that
these rights consist, primarily, in the free enjoyment of
personal security, of personal liberty and of private
property...And lastly, to vindicate these rights, when actually
violated and attacked, the subjects of England are entitled, in
the first place, to the regular administration and free course
of justice in the courts of law; next to the right of
petitioning the King and Parliament for the redress of
grievances; and lastly, to the right of having and using arms
for self preservation and defense."
The right to keep arms no doubt developed as a corollary of
the natural law right of self defense, and by Anglo-Saxon times
a corresponding obligation was clearly defined. All able-bodied
freemen were expected to take part in the "hue and cry" to bring
criminals to justice, and to serve in the army in time of war.
For both of these purposes, they were expected to maintain arms
according to their rank and station. A twice yearly inspection
insured that the arms concerned were kept in good order and
ready for use.
The Normans retained this system, and indeed refined it.
Henry II's Assize of Arms of 1181 detailed the types of weapons
which persons of various rank were expected to have on hand, a
question that was updated in 1285 by the Statute of Westminster
[13 Edw I c6]. The greater one's wealth, the greater one's
contribution, but even the poor were under obligation: "...and
all others that may shall have bows and arrows."
Indeed, firearms were at first regarded by the Crown as
noisome, inefficient things that might tempt people to neglect,
"...the good and laudable exercise of the longbow which always
heretofore hath been the surety, safeguard and continual defense
of this Realm of England." [33 Hen VIII c6]
By the end of the 16th century, the musket had displaced
the bow as the primary infantry weapon, and by Blackstone's
time, the right to bear arms, and specifically firearms, was a
well recognized element of the Constitution, existing quite
separately from the obligational aspect.
This was clearly enunciated during the debate on the
Seizure of Arms Bill of 1820, in response to a fear of
insurrection in the industrializing North. The Luddite violence
of 1811 and 1812 had required 12,000 troops to put down, and a
resurgence had led to the "Peterloo Massacre" of 1819 in which
eleven people were killed and hundreds injured as the Yeomanry
dispersed a crowd estimated at some eighty thousand. There was
much talk of revolution and reports, no doubt exaggerated, of
secret stores of arms and men drilling or training with them.
The Seizure of Arms Act was to authorize justices of the
peace to issue warrants for the seizure and detention of arms
that might be used by revolutionaries. Parliament recognized
that it was on delicate ground and clearly had no wish to
abrogate a right. The Act applied only to the two cities and
eleven counties in which there was a real fear of unrest, and
would lapse after two years. Moreover, firearms (unlike pikes)
could only be seized if it could be demonstrated that they were
kept for a purposed dangerous to the peace.
Despite the carefully circumscribed terms of the bill, Mr.
T.W. Anson contended, during the debate on the 14th December,
1819, that, "The principles on which it (the bill) is founded
and the temper in which it is framed appear to me to be so much
at variance with the free spirit of our venerated constitution
and so contrary to the undoubted right which the subjects of
this country have ever possessed -- the right of retaining arms
for the defense of themselves, their families and properties --
that I cannot look upon it without loudly expressing my
disapprobation and regret."
After a lengthy debate in which Mr. Anson found strong
support, Mr. George Canning, later Prime Minister, summed up for
the Government: "I am perfectly willing to admit the right of
the subject to hold arms laid down by the Honorable and Learned
Gentleman (Mr. Anson), having stated it on the authority of Mr.
Justice Blackstone. The doctrine so laid down, I am willing to
admit, is no other than the doctrine of the British
Constitution. The Bill of Rights, correctly quoted and properly
construed, brings me to the construction of the Bill which, in
fact, recognizes the right of the subject to have arms, but
qualifies that right in such a manner as the necessity of the
case requires."
It was generally accepted that Mr. Canning had made his
case, and that by tailoring the bill to meet a specific and
tightly circumscribed problem, the extent to which he had
infringed the rights of the subject was acceptable and met
Blackstone's prescription of, "...restraints so gentle and
moderate, as will appear on further inquiry, that no man of
sense or probity would wish to see them slackened."
Subsequent legislative proposals were less clearly in
accord with this principle, and it was to be nearly a century
before a measure restricting firearms ownership or use was again
enacted. The possible exception that one might cite was the Gun
License Act of 1870, which required anyone who wished to carry
or use a gun outside the curtilege of a dwelling house, to
purchase a ten shilling license at the post office. This,
however was strictly a revenue measure; it remained in force
until 1967.
Section 4 of the Vagrancy Act, 1824, made it an offense to
be in possession of an offensive weapon with intent to commit a
felony. But providing he was free of felonious intent and paid
his ten shillings to the post office, the Englishman's right to
acquire, possess and carry firearms was uninhibited by law until
the twentieth century.
There had been several measures proposed toward the end of
the 19th century, but all fell, generally on grounds of
unconstitutionality. The Pistols Bill, 1895, made it to a
division, where it failed by 183 votes to 75. Mr. C. H. Hopwood,
Member for South East Middleton, would appear to have reflected
the feeling of the House when he suggested that, "To say that
because there were some persons who would make violent use of
pistols, therefore the right of purchase or possession by every
Englishman should be taken away, is monstrous."
A much diluted bill, however, was to succeed eight years
later. The Pistols Act, 1903, provided that before one could
purchase a pistol or revolver at retail, one had either to
produce a gun license or game license, available at the post
office, or give reasonable proof that one was a householder
intending to use the pistol in or within the curtilege of his
own house, or present a letter, countersigned by a justice of
the peace or a police officer of the rank of inspector or above,
that one was departing abroad for a period of six months or
more. There was also a bar on retail sales to persons under the
age of 18; private sales were outside the scope of the Act. The
only effect of the Act was to oblige retail customers who were
not householders to pay a ten shilling tax at the post office.
The burden of the law was minimal and therefore tolerable.
The purpose of the bill, according to Mr. Hulme, its
sponsor, was not to prevent crime but hopefully to eliminate
some of the accidents, particularly involving young people, that
one heard of from time to time.
Mr. Hulme's intentions notwithstanding, the 1903 Act was
soon criticized for not accomplishing what it had not been
intended to accomplish, and a much stiffened version was ready
for introduction in 1911. Soundings may have indicated that it
would encounter the same sort of resistance that had scuttled
the 1893 and 1895 bills, however, since it was never brought
before Parliament.
This persistent legislative activity from 1893 onward, for
all of its lack of success, suggests the emergence of a feeling,
in administrative circles, that the Constitution was outmoded in
this respect, and that some beneficial effect would accrue from
restricting the legitimate private ownership of firearms.
The effect anticipated is not always easy to deduce for, as
Greenwood belatedly discovered, legislative proposals sometimes
sail under false colours. This could be the said to have
particularly been the case of the Firearms Act, 1920, the
Criminal Justice Act, 1967, (which introduce the shotgun
controls) and perhaps the current bill as well.
The Firearms Act, 1920, established the framework of
controls that has characterized the British system ever since.
This was strictly and administrative confection: the Blackwell
Committee, upon whose recommendations the Act was based, met in
secret and their report was never published. The chairman, Sir
Ernley Blackwell, was a senior Home Office official, while the
secretary, who was also a member of the committee, was Mr. F.J.
Dryhurst, recently Commissioner of the Prison Service. Other
members represented the Metropolitan Police, the County and
Borough Police Forces, the board of Customs, Board of Trade, the
War Office and the Irish Office.
The committee proceeded on the assumption that controls
were desirable and that they would be effective. The
Commissioner of Police for the Metropolis had reported that
during the three years 1911-1913 there had been 123 cases in
which firearms had either been used in crime or had been found
in the possession of persons who had come into the hands of the
police. For the corresponding period, 1915-1917, there had been
47 cases. Blackwell ascribed this decline, from an average of 41
cases per year to 15.6 cases per year, entirely to the
beneficial effects of the wartime Defense of the Realm
Regulations, which required a license for the retail purchase of
rifles, pistols, and ammunition. Blackwell anticipated that when
the Regulations expired, instances of armed crime "may be
expected to rise to or above their former level." With
hindsight, and armed crime rate in the Metropolis of 47 cases
per year sounds Utopian. Blackwell's contention, "That the
control of firearms should be made far more stringent than it is
now is a proposition that hardly anyone could be found to
question," [Blackwell, page 1] might best be taken in the
context of the secrecy with which the Committee undertook its
deliberation and its exclusively civil service and police
composition.
Blackwell submitted his report on the 16th of November, 1918. On
the same day, he wrote to Sir Maurice Bonham Carter at the
Ministry of Reconstruction, who had been responsible, along with
Sir Edward Troup, for setting the committee up.
Of the report, Blackwell wrote in a covering letter, "It
will be better not to publish it. There is a good deal in the
Arms Traffic Report that could not be published and a regards
our Report, any prolonged discussion with the 'trade' is to be
avoided." [PRO REC1/342/55946] "You will see," he assured Bonham
Carter, "that we have arrived at framing a fairly stringent
system of control."
Stringent it was. Indeed, the certification procedure that
Blackwell's committee designed has been recognized as about as
stringent as can be effected short of an outright prohibition.
The distinctive features are the wide-ranging discretion
accorded to chief constables and the burden laid upon the
applicant to "satisfy" the chief constable both as to his
personal suitability and as to his legitimate requirement for
the firearms or ammunition applied for.
Complaints of overzealousness were almost immediately
forthcoming. The first appeal against a chief constable's
decision was heard at Middleton Police Court the 20th of
December, 1929; the Act had come into effect the 1st of the
month previous. The Rev. Henry Evans, vicar of Tonge, appealed
against the refusal of the chief constable to issue him a
certificate for a Winchester rifle which he had owned for many
years for sporting purposes and for the control of vermin in his
poultry yard, as he had repeatedly explained to police officers
on the occasions of their recent visits.
When making out the application form, the Rev. Evans had
indicated that his reason for requiring a certificate was so as
to comply with the law. The chief constable refused to accept
this, and the Rev. Evans refused to fill out another form,
noting that there was no requirement in the law for him to have
made out the first one.
The court found in Rev. Evans' favour. The Home Office, in
an internal note, complained that, "The police chose a case in
which they were very likely to lose, and covered by H.O.
instructions to issue certificates freely to reputable persons
already in possession." [PRO HO45/11024/408571]
The instructions referred to had been promulgated the 24th
of November and were supplemental to extensive notes for
guidance issued to chief constables on the 5th of October. The
fact that the Home Secretary found it necessary, within weeks of
the Act's taking effect, to bring the constabularies' attention
to, "...the following observations, which may assist Chief
Constables in enforcing the Act without unnecessary interference
with persons who were properly in possession of firearms at the
time of the passing of the Act, and are not likely to abuse
permission to retain them," [HO Circ. 406,571/76] is probably
indicative of a substantial volume of complaints.
The chief constables were less than appreciative of the
Home Secretary's assistance in these matters. Their Districts
1,2,& 3 Conference forwarded a resolution to the Home Office
expressing, "...regret that the Home Office has seen fit by
their circular 408,571/76 of the 24th November, 1920, to modify
the previous instructions issued to Chief Constables in Home
Office circular 408, 571/33 of 5th October, 1920, as such action
had placed Chief Constables in a difficult position." [PRO
HO45/11024-62971]
They asked that the avenue of appeal to the courts be
abolished, and that complaints be referred to the Secretary of
State for adjudication.
By 1934, the Act, and the system of controls over rifles
and pistols which it incorporated, had "run in," and the
Government felt that it was time for a review. The Home
Secretary appointed a Departmental Committee under the
chairmanship of Sir Archibold Bodkin, a recently retired
Directory of Public Prosecutions, "...to consider the various
types of firearms and similar weapons ... and to report whether,
in the interests of public safety, any amendment of the law is
necessary or desirable in respect of such weapons and
ammunition." [HMSO Cmd. 4758.1934]
Bodkin's committee was somewhat more broadly based than
Blackwell's (it included three Members of Parliament) and
invited submissions. It heard oral evidence from 38 witnesses
representing 21 organizations, and received written
communications from ten departments and organizations. The
report (Cmd. 4758) was published in December of 1934 and
reprinted in 1968.
The Bodkin Report is interesting in many respects, not
least in its use of statistical evidence. The Committee had
requested an elaborate report from each chief officer of police
in Great Britain concerning, "...cases known to the police in
which certain types of weapons had, during the three years ended
28th February, 1934, been "a) used by or found in the possession
of persons engaged in crime (including cases of suicide) or
avoiding arrests, (or) b) the cause of accidents involving
personal injuries." [Bodkin, page 2]
The information thus gathered was tabulated and broken down
so that details such as the age of the user, the calibre or
gauge of the weapon, the type of cartridge, and the degree of
injury were immediately accessible. These tables cover seven
pages and are extraordinarily well set out and useful. The
survey covered: shotguns, sawed-off shotguns, smooth-bore
pistols, toy or dummy pistols converted to fire, toy or dummy
pistols not converted, air pistols, and air guns or rifles -- in
other words, those types of firearm that were not covered by the
Firearms Act, 1920.
The committee's decision to seek no data regarding the
types of firearm controlled by the 1920 Act meant both that the
effectiveness of that Act could not be evaluated and that no
case for deregulation could be supported by quantitive evidence.
This was the more unfortunate in that they were quite clear that
deregulation was within their terms of reference [Bodkin, page
3].
The Committee's use of evidence (or lack thereof) opens
them to criticism on several points. They professed much
sympathy for the gun trade, which had been decimated by the 1920
Act but whose remaining members had "borne their losses with
resignation and have loyally cooperated with authorities."
[Bodkin, page 10]
Moreover, "It seems quite clear," they report, "that in
1920 Parliament intended to abstain, as far as possible, from
discouraging the formation of rifle clubs and target practice
generally." [Bodkin, page 15]. They were earnestly pressed by
the trade to deregulate .22 rifles, but declined to do so on the
perhaps significant grounds that, "...it would be a retrograde
step after 14 years of restriction if all control over such
weapons were abolished." [Bodkin, page 16]
According to the evidence collected, ordinary shotguns had
been used in 94 crimes over the three years of the study. Shot
pistols had been used in 25 and sawed-off shotguns in eight.
Bodkin recommended placing the latter two types of weapon under
firearm certificate control, but favored leaving normal shotguns
outside the Act. They may have been quite correct in suggesting
that shotguns so outnumbered shot pistols that a roughly 4:1
ratio of use in crime was not disproportionate. But they made no
attempt to quantify the number of either type in circulation,
nor did they address their minds to the question of what was
achieved by restricting sawed-off shotguns when both shotguns
and hacksaws were unrestricted.
The Bodkin Committee collected a great deal of information
and did an impressive amount of work, but their line of argument
is not always persuasive. One often suspects that the evidence
is decorative and that the report actually reflects an
administrative class view of what a well-ordered universe would
be like. Their conclusion, that the system of controls
established by the Firearms Act, 1920, "...lying as it does
largely in the hands of responsible officers of police, has, in
our opinion, been well administered and forms an efficient
system of controlling the sale of firearms and ammunition,"
[Bodkin page 9] ignored the question of what the system
accomplished. The members of the committee no doubt assumed that
the controls were of some public benefit, but they did not pose
the question and sought no evidence that would have permitted an
answer.
The Bodkin Committee suggested a number of changes of
detail in the 1920 Act, but none of structure. Perhaps their
most notable proposals were that shotguns with barrels less than
20 inches in length be subject to firearm certificate control,
and that machine guns be removed from firearm certificate
control and be reclassified as prohibited weapons. The
reclassification of machine guns was at the suggestion of the
British Field Sports Society.
The Bodkin committee recommendations were incorporated in
the Firearms Act, 1936, which turned out to be longer than the
act it amended. The following year, the 1920 and 1936 Acts,
along with the intervening Firearms and Imitation Firearms
(Criminal Use) Act, 1933, and the Firearms Act, 1934 (regulating
the sale to persons under seventeen of firearms and ammunition)
were consolidated in the Firearms Act, 1937, which was to remain
in effect, virtually unamended, for thirty-one years.
The Firearms Act, 1937, carried Britain through the trauma
of the Second World War, across the flat and tranquil decade of
the 1950's, and into an era of spiraling crime and quantum
increases in criminal violence. The 1937 Act, perhaps, was no
more responsible for the latter phenomena than it was for the
period of remarkable repose that preceded it.
In the absence of directly comparable statistics, all that
can be said with confidence is that the 1950's marked the last
time, and perhaps the only time, that armed crime had been as
rare as it had during the Belle Epoque when there was no
restrictive legislation at all.
However, few people retained a clear memory of the period
prior to the First World War, and across the intervening
decades, the feeling had taken root that the low level of armed
crime must be due to the rigour of statutory restrictions. When
violent crime began its vertiginous rise in the mid-1960's, the
understandable feeling of many was that more restrictive
legislation was needed. The police were less prone to such and
instinctive reaction, for chief constables realized that the
degree of control which they exercised over the legitimate
ownership of rifles and pistols left little to be desired.
Shotguns remained uncontrolled, but were comparatively rarely
used in crime.
The question, nonetheless, was repeatedly posed as to
whether any benefit would be derived from drawing them into the
system. Invariable, the answer was that would not. Sir Frank
Soskice, as Home Secretary, gave the matter close consideration
and told the House, on 11 February, 1965, while announcing the
provisions of the forthcoming Firearms Act, 1965, that, "The
Government have considered carefully the possibility of
extending to shotguns the firearm certificate procedure, but
have decided against it. There are probably at least 50,000
shotguns in legitimate use throughout the country and the burden
which certification would put on the police would not be
justified by the benefits which would result."
Sir Frank was replaced at the Home Office toward the end of
the year, and on the 3rd of March, 1966, Roy Jenkins, the new
Home Secretary, announced that he was reconsidering the matter.
He was, he said, "actively considering new legislation in
relation to shotguns." By the 23rd of June, the review had been
completed, and Mr. Jenkins reported that, "The type of shotgun
which is freely available and which can be used without special
exemption was considerably restricted under the Firearms Act. I
must pay some regard to the burden of inspection which would be
put on the police. The police do not consider that it would be
right to make an extension at this time."
In other words, the matter had been looked into repeatedly,
and the conclusion was that it was simply not worth doing.
However, only seven weeks later, an incident occurred that was
to lead Mr. Jenkins to reverse his position entirely.
At 3:15 P.M. the 12th of August, a Metropolitan Police "Q"
car turned into Baybrook Street, Hammersmith. Foxtrot 11 pulled
to the side, and two officers, DS Head and DC Wombell, left the
vehicle to approach a parked Vanguard estate car containing
three men. As they drew near, Harry Roberts shot both of them
dead with a .38 Enfield revolver. John Duddy leapt out and ran
to the Q car, where he killed the driver, PC Fox, with three
shots from a .380 Colt pistol. Britain's greatest manhunt was
on.
John Duddy and an accomplice, John Witney, the owner of the
Estate car, who had been present at the time, were soon
arrested. But it was three months before Roberts, a Malayan
veteran, was finally tracked down and captured near Bishop's
Stortford, Hertfordshire. He had gone to ground in Epping Forest
and worked his way north on foot.
Meanwhile, the case dominated the news absolutely; the
gratuitous brutality of the crime aroused widespread revulsion
and on the 6th of September, a memorial service for the slain
officers drew a thousand-strong crowd to Westminister Abbey,
carrying banners calling for the restoration of capital
punishment in such cases.
Hanging had only been finally abolished in November of 1965
and Mr. Jenkins, whose feelings on the matter were well known,
was under heavy pressure from press and public alike, to
reintroduce it. On the 12th of September, less than a week after
the demonstration at Westminster Abbey, he announced that he
was, "...endeavouring to draw up plans to end the unrestricted
purchase of shotguns. They can be purchased far too easily, by
mail order or other means, and there is evidence that the
criminal use of shotguns is increasing rapidly, still more
rapidly than that of other weapons." [Daily Telegraph 13.9.66]
The "evidence" Mr. Jenkins referred to was the records of
"indictable offenses involving firearms," a disparate category
consisting mostly of damaged property, poaching, threats and
assaults and so forth, rather than the sort of "armed crime"
that most people would think of. However, this body of data, as
well as more relevant statistics, had been available to Mr.
Jenkins, as indeed it had been to Sir Frank Soskice, and no
doubt had been carefully studied before each reached his
conclusion that proposals to further restrict shotguns were not
justified by the evidence.
If one discounts the possibility that Mr. Jenkins thought
that restricting shotgun ownership was a relevant legislative
response to and incident in which police officers were shot with
pistols, then an explanation of why the Home Secretary
completely reversed his policy is still needed.
The evidence suggests that Mr. Jenkins introduced
legislation against shotguns in hope of deflecting the pressure
for a reintroduction of capital punishment. If so, he was
successful, albeit at the cost of approximately half a million
man hours of police time, per year, over the past twenty years.
Rather than introducing a Firearms (Amendment) Bill that
might have attracted focused opposition, Mr. Jenkins used the
forthcoming Criminal Justice Bill, 1967, as the vehicle for his
proposed measures. This was an immensely significant and
controversial bill which, among other things, did away with the
requirement for a full hearing of evidence at committal
proceedings, instituted a parole system, abolished the
requirement for a unanimous verdict in criminal trials, placed
restrictions on newspaper reporting of committal hearings and
introduced suspended prison sentences. Part V of the bill, which
introduced licenses for shotguns, was well camouflaged in a
thicket of portentious and far reaching reforms to the criminal
justice system. Opposition to Part V, therefore, was fragmented
and diffuse.
The next year, the Firearms Act, 1968, consolidated the
1937 Act and Part V of the Criminal Justice Act, along with two
intervening measures, the Air Guns and Shot Guns, etc., Act of
1962 and the Firearms Act, 1965. The former had originated as a
private member's bill, introduced Mr. Brian Harrison, and
regulated the circumstances under which young people between the
ages of 14 and 21 might lawfully purchase, use or have in their
possession airguns, shotguns and firearms, as well as ammunition
and pellets for them. The latter act was more interesting.
The Firearms Act, 1965, was designed to strengthen the hand
of the police against criminals, or suspected criminals, and as
such was supported by most of the shooting organizations, though
some of its provisions, notably a clause enabling chief
constables to attach conditions to the registration of firearms
dealers, have led to problems not then anticipated.
Other clauses created the offense of armed trespass,
regulated the carrying of firearms and ammunition in a public
place, gave the police wider powers of search and arrest without
warrant, penalized the carrying of a firearm with intent to
commit an indictable offense, increased the minimum length of
shotgun barrel from 20 inches to 24 inches and generally
increased penalties overall.
The most notable feature of the 1965 Act, however, was the
haste with which it was carried through Parliament. The Home
Secretary did not intimate that he had it in mind to legislate
until the 21st of January. Proposals were announced on the 11th
February; the bill was introduced on the 28th of February and
given a second reading only two days later, on the 2nd of March.
Third Reading was on the 12th of May and Royal Assent was given
the 5th of August.
Significantly, the Murder (Abolition of the Death Penalty)
Bill was already at the committee stage before the Firearms Bill
was introduced, yet did not become law until three months later.
The haste with which the Firearms Bill had been patched together
was reflected in the great number of amendments required to
eliminate anomalies and unintended effects.
The Government were clearly anxious that the abolition of
hanging might herald a new willingness on the part of criminals
to use violence of all forms and firearms in particular. Their
anxiety was not misplaced. And midway through the Firearms
Bill's passage, Roy Jenkins took office as Home Secretary. It is
possible that this precedent conditioned his actions eight
months later after the Shepherd's Bush murders, as the incident
in Baybrook Street became known.
The Shepherd's Bush affair may also have contributed to a
hardening of attitude on the part of chief constables.
Certainly, in retrospect, 1967 seems to mark the beginning of an
overt hostility toward the shooting sports on the part of chief
officers that had not been manifest before. Police Review
magazine described it this way: "There is an easily identifiable
police attitude towards the possession of guns by members of the
public. Every possible difficulty should be put in their way. No
documentation can be too rigid, no security requirements too
arbitrary, which prevents guns coming into the hands of
criminals." [Police Review 8.10.82]
People who wished to comply with the law found themselves
subject to bureaucratic harassment as chief constables pursued
an often acknowledged policy of "reducing the number of firearms
in the hands of the public to the absolute minimum." Over the
next fifteen years, more than a quarter of rifle and pistol
certificate holders had been eliminated. In 1968, there were
216,281 firearm certificate holders in England and Wales; by
1983, that figure was down to 159,804, a reduction of 56,477, or
26%. The policies that achieved this substantial result involved
a great deal of ultra vires activity and generated resentment
and animosity among those affected.
In 1973, the Government decided to legislate again, and
issued a Green Paper, The Control of Firearms in Great Britain
(Cmd. 5297), which was to achieve some notoriety. The Green
Paper was based on the report of a working party chaired by Sir
John McKay, then H.M. Chief Inspector of Constabulary for
England and Wales. The rest of the committee, which consisted
exclusively of members of the police, the Home Office and the
Scottish Office, have not been identified; the report has never
been released. One can only judge it through the Green Paper.
The McKay Committee gathered some interesting statistics,
but the Green Paper used them in a manner so casual and
self-serving that the argument, rather than being bolstered by
the evidence, was discredited. Professor Richard Harding, who
studied the Green Paper with great care, described it as,
"...statistically defective...scientifically quite useless; the
data are presented in a way which precludes objective evaluation
by any one else." [1979 Crim LR 772]
Nor was the Green Paper well served by its tone, which was
sanctimonious and authoritarian. Its premise was simply that
armed crime was increasing, therefore more restrictions were
needed. Bodkin was cited as an authority for his proposition: "A
Departmental Committee set up in 1934 found that the 1920 Act
had reduced the likelihood...of criminals obtaining possession
of the more dangerous firearms (rifles and pistols)." [Green
Paper, page 3]
In fact, the Bodkin Committee had "found" no such thing,
but had simply asserted it, having avoided, perhaps consciously,
gathering any evidence that might have permitted testing the
hypothesis.
The Green Paper met a hostile reception in Parliament and
in the press, and was soon withdrawn by the Government. Some of
its proposals, however, were adopted as "force policy" by chief
constables, and were applied as if they were law.
Shortly after the Green Paper was withdrawn, the Home
Office began increasing the fees for grant and renewal of
firearm and shotgun certificates in a manner that many regarded
as punitive, though this was denied by ministers. There had been
inflation adjusting increases in 1969 and 1971; the increases
begun in 1973 were therefore on top of an already
inflation-adjusted figure. Over the ensuing give years, the fees
for grant and renewal of a firearms certificate were raised by
714% and 800% respectively; the increases for grant and renewal
of a shotgun certificate were 1,200% and 800%. The Home Office
conducted several "costing exercises," each of which in turn was
thoroughly discredited.
The twenty years following have been characterized by
legislative stability, offset by an increased willingness to use
extra-legal means for imposing a preferred policy line. The
latter part of this period is also distinguished by more overt
hostility toward private firearms ownership on the part of chief
officers, and by a far more active participation in pressure
politics by the police.
The Association of Chief Police Officers determined in
December, 1982, to push resolutely to have shotguns placed under
the same controls as rifles and pistols. With the assistance of
the Superintendents Conference and the Police Federation, they
have since undertaken three "campaigns" characterized by a
carrot and stick approach. An hysterical press campaign would be
followed by an invitation to the Home Secretary to legislate in
the manner desired. The most recent campaign has used the
Hungerford incident as a platform and has proved imminently
successful. As the Home Secretary has several times stated,
Hungerford had provided the opportunity to "move forward," and
the police were among the foremost "urgers forward" in the
matter.
The Firearms (Amendment) Bill indeed represents a move
forward in the sense that legislation in this field, in Great
Britain, represents a linear progression from liberty to
prohibition. As we have demonstrated, the position up to the
outbreak of the First World War was that the right to keep arms
was one of the elementary liberties of freeborn Englishmen, a
fundamental part of the Constitution. This right has been
progressively circumscribed, limited, eroded, discounted, and
finally repudiated. The effect of the present bill will be
finally to eradicate it. It subsists, at present, in relation to
shotguns, provided that one is of good character. The effect of
the present bill is that no matter how good one's character, one
will not be permitted to possess a shotgun unless one can
demonstrate an administratively approved "good reason" for so
doing.
But if Mr. Hurd meant to imply that "moving forward" meant
enhancing the social good by addressing effective legislation to
a defined problem, he needs to make his case. Perhaps his is the
right policy to pursue, but that has yet to be demonstrated.
Indeed, one of the remarkable things about firearms legislation
in this country is that, not only have its benefits never been
demonstrated, but that the government of the day, throughout,
has been careful to avoid looking objectively at the question.
There has been a series of committees, operating in various
degrees of secrecy, assuring us and themselves that the policy
being pursued was the correct one, while somehow neglecting to
demonstrate it.
Blackwell, in 1918, baldly asserted that "hardly anyone
could be found to question" the proposition that "the control of
firearms should be made far more stringent than it is now."
Bodkin, in 1934, said that the Firearms Act, 1920, "forms an
efficient system of controlling the sale of firearms and
ammunition," but did not question the assertion and avoided
gathering evidence that would have allowed it to be tested. The
Green Paper of 1973 merely accepted Bodkin's assumption that
controls work, and said that circumstances called for more of
them.
With the 1987 White Paper, the Government appear to have
moved beyond the feeling that an increase in restrictions
requires justification. Controls seem to be regarded as an end
in themselves. As one senior civil servant recently put it,
"Controls are good."
The Firearms (Amendment) Bill now before Parliament
consists of an enumeration of measures which the officials find
congenial. Both they and the ministers are quite open in saying
that no research was undertaken and that they could provide no
evidence of probable benefit from and of the proposals in the
Bill.
In fact, all but four of the proposals in the 1987 Bill
were lifted from the 1973 Green Paper. Greenwood was perhaps
uncharitable but not inaccurate when he described Mr. Hurd's
proposals as "emptying Whitehall's rubbish bin into Parliament."
Parliament rejected the Green Paper in 1973 for its "police
state" approach and its alleged irrelevance to the problems it
purported to address.
If it is to be accepted into law fifteen years later, then
prudence would dictate that each of its provisions be analyzed
objectively. If this is not done, the likelihood of Parliament's
enacting sound and equitable law is remote. We shall indeed have
moved a long way from Blackstone's prescription of,
"...restraints in themselves so gentle and moderate...that no
man of sense or probity would wish to see them slackened."
There have been two further enactments since 1968 which
must be mentioned for the sake of completeness. The Criminal
Justice Act, 1972, increased the penalties for criminal misuse
stipulated in the 1968 Act. The penalty for possessing a firearm
with intent to endanger life or using a firearm to resist arrest
was increased from fourteen years to life imprisonment, while
that for carrying a firearm with intent to commit an indictable
offense, or while committing certain specified offenses, was
increased from ten and seven years respectively, to fourteen
years.
The Firearms Act, 1982, was a Home Office measure put
forward as a private member's bill with bipartisan support. It
was sponsored Mr. Eldon Griffiths (later Sir Eldon), the
Parliamentary representative of the Police Federation, with the
objective of enacting the proposal in paragraph 121 of the 1973
Green Paper, banning realistic replica or toy firearms. The
problems of definition, however, proved insuperable and the
bill, when published, related instead to replica firearms which
were capable of conversion to fire a shot. Mr. Griffiths
contended that his bill would help to stem, "the rising tide of
crime and terrorism." He was no doubt referring to the
unpublished draft, for no one could recall a crime, much less
and act of terrorism, committed with a converted replica.
The law would be better served, and would command greater
respect, if it could be shown to address a problem. One of the
most conspicuous features of firearms legislation in Britain has
been a persistent refusal to undertake any objective analysis of
its utility or consequences in terms of social benefit or effect
on specified mischiefs, either prospectively or retrospectively.
The danger is twofold. In the first place, if a law cannot
be demonstrably justified, those who have thus far voluntarily
complied with it may cease to do so, and will moreover find
their respect for the law in general diminished. This is a
result that wise government should avoid. In the second place,
if a law is irrelevant, resources committed to enforcing it are
at best wasted and at worst counterproductive.
================================================================
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A BRIEF CHRONOLOGY
****************************************************************
Several dozen statutes govern the possession, use,
transport and trade in firearms in the United Kingdom, often
quite tangentially. The Cemetary Clauses Act, 1847, for example,
made it an offence to discharge firearms in certain cemetaries
and burial grounds, except in connection with a military
funeral. The Town Police Clauses Act of the same year penalizes
the wanton discharge of firearms in the street to the annoyance
of residents or passers by, while the Wildlife and Countryside
Act of 1982 distinguishes, for no readily apparent reason, among
shotgun action types that may be used for game and vermin
species. Then there are the various Game Acts, Deer Acts, Night
Poaching Acts and so forth on the one hand, and the Police Acts,
the International Headquarters and Defence Organizations Act,
the Gun Barrel Proof Act and Diplomatic Privileges Act on the
other. One could go on in this vein for many more pages, and a
digest of firearms law, if complete, would be compendious; a
case of firearms misuse often attracts charges from a number of
statutes.
The purpose here is merely to give a concise chronology of
the most important statutes relating to private firearms
ownership. No mention will be made of failed bills, peripheral
acts, war emergency regulations or acts relating to Scotland,
Ireland or Northern Ireland. The Channel Isles and the Isle of
Man of course have separate legislation. The 1973 Green Paper
appears because of its topical significance.
Those who wish to look more deeply into the matter may
consult: *Gun Law* by Godfrey Sandys-Winsch (London: Shaw &
Sons, 1979, 3rd ed.), *Firearms Control* by Colin Greenwood
(London: Routledge & Kegan Paul, 1972), and *The Law Relating to
Firearms* by P.J. Clarke and John W. Ellis (London:
Butterworths, 1981).
GUN LICENSES ACT, 1870 - required anyone wishing to carry
or use a gun elsewhere than in, or within the curtilege of, a
dwelling house, to purchase a licence, for ten shillings, from
the Post Office. Strictly a revenue measure. Repealed in 1967.
PISTOLS ACT, 1903 - Prohibited the retail sale of pistols
to those under 18 years. Required other purchasers to produce
either a Gun Licence or Game License (see above), or reasonable
proof that the purchaser was a householder intending to use the
pistol within the curtilege of his house, or a letter,
countersigned by a justice of the peace or a police officer of
the rank of inspector or above, that the purchaser was going
overseas for a period of not less than six months. Defined a
pistol as a firearm with a barrel less than nine inches in
length. Required dealers to keep records. Did not apply to
private sales. Repealed in 1920.
FIREARMS ACT, 1920 - Established the framework of controls
still in use. Enacted the recommendations of the secret
Blackwell Committee report. Fear of revolutionary activity a
principal motivation. Made possession of a rifle or pistol
dependent on a certificate issued by chief constables, who were
given wide powers of discretion. Dealers were subject to
registration. There were exclusions for various professional
categories. Shotguns, air weapons and antiques excluded. Appeal
to Petty Sessions against chief constable's decision. Repealed
1937, except for ss. 16 and 19(1). Incorporated in FIREARMS ACT,
1937.
FIREARMS and IMITATION FIREARMS (CRIMINAL USE) ACT, 1933 -
Created offence (maximum sentence 14 years) of using or
attempting to use a firearm or imitation firearm to prevent
lawful arrest or detention. Created offence of being in
possession of a firearm or imitation firearm either while
committing or when apprehended for committing specified
offences. Maximum sentence seven years, to be served in addition
to any sentence for the primary offence. Burden of proof on the
defence. Repealed and incorporated into the Firearms Act, 1937.
FIREARMS ACT, 1934 - Raised the minimum age for purchasing
or hiring a firearm from 14 to 17 years and created appropriate
offences. Repealed by and incorporated into the Firearms Act,
1937.
FIREARMS (AMENDMENT) ACT, 1936 - Enacted the
recommendations of the Bodkin Committee report (Cmd 4758:HMSO,
Dec., 1934, reprinted 1968). Shotguns and other smoothbore
firearms with barrels less than 20 inches made subject to
firearms certificate, as were shotgun cartridges with pellets
greater than .36" diameter. Machine guns removed from firearm
certificate control and made subject to Admiralty, Army Council
or Air Council authority. Sound moderators subject to firearm
certificate control. Extensive regulations concerning firearms
dealers. Chief constables empowered to add conditions to firearm
certificates. Appeals transferred from Petty Sessions to Quarter
Sessions. Repealed by and incorporated into Firearms Act, 1937.
FIREARMS ACT, 1937 - Consolidated the four preceding Acts.
Repealed by and incorporated into the Firearms Act, 1968.
AIR GUNS and SHOTGUNS, etc., ACT, 1962 - A private member's
bill, introduced by Mr. Brian Harrison. Regulated the
circumstances under which young people aged 14-21 may purchase,
use or have in possession firearms, shotguns, airguns or
ammunition or pellets therefor. Repealed in 1968 and
incorporated into the Firearms Act, 1968, as ss.22-24.
FIREARMS ACT, 1965 - Intended as legislative prophylaxis
against an anticipated upsurge in criminal violence following
the forthcoming abolition of capital punishment. Substantially
increased the penalties for Firearms Act offences. Created new
offences of armed trespass, possession of firearms and
ammunition in a public place, and carrying a firearm or
imitation firearm with intent to commit a criminal offence.
Extended the prohibition of firearms ownership by convicted
persons. Created extensive new regulations for firearms dealers
and authorised chief constables to attach conditions to dealers
registrations. Minimum length for shotgun barrels increased from
20" to 24". Absolute prohibition on shortening the barrels of a
shotgun to a length less than 24" except by a registered dealer,
and then only for purposes of resleeving. Repealed by and
incorporated into the Firearms Act, 1968.
CRIMINAL JUSTICE ACT, 1967, PART V - Placed shotguns with
barrels of 24" or more under certificate control. Introduced in
response to an incident in which police officers were killed by
criminals armed with illegal pistols. A shotgun certificate was
based on the personal suitability of the applicant and was not
restricted to designated guns. Repealed by and incorporated into
the Firearms Act, 1968.
FIREARMS ACT, 1968 Gave the Home Secretary power to alter
fees charged by order. Consolidated the 1937 and subsequent
Acts.
CRIMINAL JUSTICE ACT, 1972 - Increased the penalties for
criminal misuse stipulated in the Firearms Act, 1968.
1973 GREEN PAPER CMND 5297 - entitled *The Control of
Firearms in Great Britain: A Consultive Document. Based on the
secret report of Sir John McKay's working party of 1971-72, it
proposed draconian restrictive measures unsupported by any
verifiable evidence. Rejected by Parliament. All but four
clauses of the current Firearms (Amendment) Bill are drawn from
the Green Paper.
FIREARMS ACT, 1982 - Subjected to firearm certificate
control replica or imitation firearms deeped "readily
convertible" to discharge a projectile. Creates a defence of
innocent ownership. A code of practice agreed upon with the
trade governs new production.
creased the penalties for
criminal misuse stipulated in the Firearms Act, 1968.
1973 GREEN PAPER CMND 5297 - entitled *The Control of Firearms in Great Britain: A Consultive Document. Based on the secret report of Sir John McKay's working party of 1971-72, it proposed draconian restrictive measures unsupported by any verifiable evidence. Rejected by Parliament. All but four clauses of the current Firearms (Amendment) Bill are drawn from the Green Paper.
FIREARMS ACT, 1982 - Subjected to firearm certificate control replica or imitation firearms deeped "readily convertible" to discharge a projectile. Creates a defence of innocent ownership. A code of practice agreed upon with the trade governs new production.
