Legal: Borrowed time

AUTOS for Josie001Neither a borrower nor a lender be, says Tim Ryan, who outlines some worryingly little-known exceptions to the ‘estate rule’ of using borrowed firearms

It is an offence to have possession of a firearm or shotgun without holding the appropriate certificate. There are, however, a limited number of well-known exceptions to the usual rules that allow licensed firearms to be used by someone other than the certificate holder.

A shotgun can be lent to another certificate holder for up to 72 hours without having to notify the transfer to the police. A non-certificate holder may lawfully borrow a .22 rimfire rifle at a rifle range or shooting gallery, or a shotgun at an approved clay pigeon shoot. He may also borrow a shotgun from the occupier of private premises and use it on those premises in the occupier’s presence. If he is 17 or over, he may borrow a rifle from the occupier of private premises and, provided he complies with the conditions on the certificate, use it on those premises in the presence of either the occupier or his servant (the ‘estate rifle’ exemption).

Alas, the licensing of guns is a complicated business, and the penalties meted out to those who get it wrong are often severe. I recently encountered a particular trap for the unwary, which I suspect is not widely appreciated and could do with being better publicised.

The Wildlife and Countryside Act 1981 prohibits the use of any automatic or semi-automatic firearm for shooting game birds and wildfowl in England, Scotland and Wales.
The Wildlife (Northern Ireland) Order 1985 does the same in Northern Ireland. The legislation specifically excludes from the definition of ‘automatic’ and ‘semi-automatic’ any firearm whose magazine is incapable of holding more than two rounds. What is prohibited, therefore, is the use of a semi-automatic firearm with a magazine capacity greater than two rounds.

The general licences under which avian pest species can be lawfully killed under certain circumstances permit the use of semi-automatic firearms that have a magazine capable of holding more than two rounds. As a consequence, multi-shot semi-automatic shotguns are a popular choice among farmers, gamekeepers and others whose use of guns is heavily linked to pest control. The benefit is simply added capacity when dealing with large infestations of birds, for example, flighting into crops.

one out one in (5)001The Firearms (Amendment) Act 1998 redefined the term ‘shotgun’ for the purposes of firearms licensing, such that any shotgun capable of holding more than two cartridges in the magazine now requires a Section 1 firearm certificate. This particular tightening of the law was introduced as a reaction to Hungerford, even though Michael Ryan had not used a multi-shot shotgun, but two semi-automatic rifles and a handgun.

The effect of this change in status is that a multi-shot shotgun cannot be used by anyone other than the certificate holder to whom it relates, and any transfer must only be to a registered firearms dealer or to a person authorised by a firearm certificate to take possession, with both parties required to notify the police within seven days. Such a shotgun cannot be lent to another certificate holder under the 72-hour rule. Nor can it be used by a non-certificate holder on a clay pigeon shoot or borrowed for use on private premises. It is not a shotgun for the purposes of the firearms legislation – it is a Section 1 firearm. But it is clearly not a rifle either.

A young keeper fell into the error of supposing he could allow a non-certificate holder to use his Section 1 shotgun to shoot clays, under his supervision, on the land where he worked. He had his firearm and shotgun certificates revoked when the matter came to the attention of his local police. He was also prosecuted for breaching the conditions of his firearm certificate. He had no possible defence to the charge and was ordered to pay a total of £600 in fines and costs.

Fortunately for him and his employer, the police accepted that it had been an entirely innocent mistake and, despite the conviction, agreed to re-instate his certificates.

The moral of the story? Where firearms licensing is concerned, take nothing for granted. If you are in any doubt as to what you can or cannot do, seek professional advice.

KEEP YOURSELF OCCUPIED

An individual, without holding a shotgun certificate, is permitted to borrow a shotgun from the occupier of private premises and use it on those premises in the occupier’s presence. But as always, it’s not as simple as that.

In firearms law there is no straightforward definition of ‘occupier’– it could be taken to mean the sole owner of the gun, the landowner or something altogether looser. Often taken as guidance is section 27 of the Wildlife and Countryside Act 1981, which states that ‘occupier’ in relation to any land, other than the foreshore, includes any person having any right of hunting, shooting, fishing or taking game or fish. That sounds workable, and forces may well stick to that definition – but it’s not firmly set in law for firearms purposes, and chief firearms officers may decide to seek counsel if they feel the lines are blurred. So be careful.

Meanwhile, ‘premises’ can include any form of land, and the borrower can be of any age. But beware that you risk committing an offence if a borrower under 15 is not supervised by someone aged 21 or over.

Tim Ryan is a partner at Warners Solicitors, specialising in criminal defence and firearms licensing litigation.

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