POLICE “POLICY” REGARDING NON-DECLARATION DOES NOT REFLECT THE LAW

Failure to declare previous convictions or medical conditions can lead to the refusal of firearm certificates. However, police interpretation of non-disclosure policies often disregards the intent behind omissions, treating all failures as deliberate. This approach, says barrister Nick Doherty, raises significant legal and fairness concerns.

It is an understandable legal requirement that applicants for firearm and shotgun certificates are expected to make full and complete disclosure of all relevant information and answer questions honestly when making an application. A deliberate failure to declare a relevant previous conviction or medical condition is a criminal offence. In addition, paragraph 3. 30 of the Statutory Guidance to Police on Firearms Licensing identifies factors that will tend to demonstrate a potential danger to public safety or the peace in allowing the applicant to possess firearms, including:

iii) deliberate failure to declare relevant convictions or medical conditions, regardless of whether the certificate would have been refused if the appropriate declaration had been made.

However, what is the situation where a failure to declare was inadvertent, usually where the matter has been long forgotten? Further, what about cases where, having considered the matter, the applicant genuinely believes that it is not relevant or does not fall within the criteria for disclosure? In both situations it is difficult to say that there has been a “deliberate” failure to disclose. It would certainly not amount to a criminal offence.

In recent firearms appeal cases the police have made it clear they ignore such considerations. If the applicant has failed to declare a matter known to the police, usually a conviction, or a medical condition raised in the GP medical certificate, there is no consideration given as to whether the failure to disclose was deliberate. The police will hold it against the applicant and refuse the application. This policy is applied even where it appears there was no deliberate attempt to hide the information. Last month one licensing manager in the north of England indicated while giving evidence in the crown court that it was their force policy to treat every failure to declare a matter which the police considered relevant as if it were deliberate.

The importance of deliberate non-disclosure is that it demonstrates dishonesty, and a person who cannot be trusted to abide by the rules. To apply that test to every case where there has been non-disclosure is unfair and unlawful. Recent examples from my practice include a woman in her middle years of impeccable character who was refused in 2024 based on a failure to declare a speeding conviction in 2001 and a short period of “stress at work” in 2008, both of which she’d forgotten about. In that case the police acted sensibly when challenged by an appeal. They requested a new application be made disclosing those matters, and on receipt issued a new certificate within a week. In another case, in 2023, the certificate was refused (in part) on the basis of a failure to disclose an episode in 2001 where the doctor had ticked the “depression or anxiety” box but then added “issue resolved itself with no formal diagnosis”. It is therefore difficult to see how the applicant can be criticised for failure to disclose the episode, even if he had remembered it, which he had not.

It is also important to note that Note 5 on the application form for a grant or renewal, having listed the seven medical conditions which should be disclosed, then adds “any other mental or physical condition, or combination of conditions, which you think may be relevant”. This is clearly subjective — it is what the applicant thinks is relevant. This underlines that the police cannot simply apply a rigid rule — “you didn’t mention it, so we are refusing the application”. The question is “was it deliberate?” The burden is on the police to prove that on the balance of probabilities. They cannot do so unless they have made proper enquiries about whether it was a deliberate failure.

If this happens to one of your customers, what is the best advice?

You may well have heard of cases where the police have invited the applicant to “re-apply”, declaring the matter which was the “failure” on the original application. If so, the applicant should proceed carefully. In cases of a genuine failure to remember, this should be emphasised on the reapplication. In those where it was considered not relevant, the reasons for that belief should be explained. This is important as the reapplication might otherwise be viewed as an admission that there had been a deliberate failure in the original application. There have been several cases where the reapplication has been further refused on that very basis.

Finally, if the police fail to consider whether there was a deliberate failure to disclose something they consider should have been disclosed, it is important to lodge an appeal straight away. The police may then respond with “withdraw the appeal and make a new application disclosing the matter(s) previously omitted”. Submit the new application, but make it clear that you will only withdraw the appeal when the certificate(s) have been granted.