Risking the Right to Life? Firearms Regulation and the ECHR

By Richard A. Edwards. ILHRU. UWE, Bristol.

On New Year’s Day 2012 Michael Atherton shot dead three members of his family before turning the gun on himself. The coroner ruled that the three women had been unlawfully killed. Yet the tragedy was avoidable. The coroner, Andrew Tweddle, catalogued a licensing regime riddled with poor practice. Atherton lawfully owned six weapons, including three shot guns, despite a history of domestic abuse and threats to self-harm.  Remarkably, not only was Atherton granted a shotgun certificate in 2006, but also a licence for firearms two years later. In 2008 Atherton’s weapons were confiscated after threats that he would ‘blow his head off’. Yet Atherton was given a final written warning, and the weapons returned. 

In this context there is a clear issue under Article 2 ECHR. And one that has largely been overlooked. Article 2 ECHR guarantees that ‘everyone’s right to life shall be protected by law.’ The European Court of Human Rights in Osman v UK [1998] ECHR 23452/94 described the nature of the Article 2 guarantee thus:

115. The court notes that the first sentence of art 2(1) enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction …. It is thus accepted by those appearing before the court that art 2 of the convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. 

The preventive duty can arise not only in situations where there is a real and immediate risk to life (e.g. Kontrova v Slovakia [2007] ECHR 7510/04) but also where the state regulates inherently dangerous activities, such as waste disposal and the licensing of firearms. As the European Court noted in Oneryildiz v Turkey [2004] ECHR 48939/99:

89. The positive obligation to take all appropriate steps to safeguard life for the purposes of art 2 entails above all a primary duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.

90. This obligation indisputably applies in the particular context of dangerous activities, where, in addition, special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. (Emphasis added)

The regulation of firearms would clearly fall within the scope of the positive obligation in Article 2. Guns are self-evidently dangerous. The question then becomes does the current legal framework provide adequate legal protection for the right to life?

A firearms certificate is needed to own and use a gun. Under the Firearms Act 1968 supplemented by the Firearms Rules a Chief Constable (or his/her delegate) can grant a firearms certificate where an application is made in the prescribed form and he/she believes that a person is fit to be entrusted with a firearm, has good reason to have the gun and such possession is ’without danger to the public safety or to the peace.’ Similar considerations apply to shotguns, though there is no requirement as to fitness. 

However, under these laws firearm certificates have been granted to individuals whose records include episodes that might reasonably be considered grounds for refusal. For example, licences have been granted in cases involving breaches of bail conditions, drunken threats, domestic violence, offensive weapons charges, criminal damage and convictions for alcohol-related offences.  Indeed, the Independent Police Complaints Commission noted during its evidence to the Home Affairs Committee in 2010 that ‘it was noticeable from the analysis of the cases how many involved domestic incidents, either as the trigger for misuse of the licensed firearm or in the history of the licensee.’ Different constabularies have different approaches to domestic violence. For instance, while Durham granted a licence to a man with a history of domestic abuse, in Hampshire this would result in refusal. Undeniably, the current legal framework inadequately protects partners from the worst form of domestic violence, namely death.

Equally troubling is the persistent failure to weed out those who are mentally unbalanced.The current regime fails to adequately unearth the mental and alcohol related problems of potential licensees. All too often this has fatal consequences.  Currently the police do not routinely approach GPs when processing applications, but do so only when there are concerns about the applicant’s medical history that require further information. Consequently, serious mental health issues are often missed.

Applications are normally handled by firearms unit within each police force. These units have a crucial role in the administration of gun licensing. Yet when the various inquiries into the Horden shootings exposed the inner workings of the Durham Constabulary firearms licensing unit to scrutiny they revealed a body that was unfit for purpose operating an important regulatory scheme in a shambolic manner. The head of the Durham unit was untrained for this important role. Indeed, it seems there was no training. Incredibly, one of the unit’s former members gave evidence at the inquest that he had no knowledge of the Home Office Firearms Guidance. Not surprisingly, the IPCC found the unit’s supervision of gun licensing lacked any good practice such as a clear decision making process and effective record keeping. A subsequent internal audit of the unit’s work involved a re-examination of 970 licences (total: 6,900) with 118 of these being revoked. This, of course begs the question, if the Durham unit was so chaotic how many other firearms units are similarly unfit for purpose, and thus how many ‘unfit’ individuals have licences for lethal weapons? This is not the rigorous form of regulation that Article 2 ECHR demands of dangerous activities.

It is difficult to resist the conclusion that current firearms law creates a poorly administered and permissive system that put guns in the hands of those unsuitable to have them. The coroner in the Horden shootings concluded that there was a need for ‘root and branch’ reform of a ‘flawed’ system. Indeed, the systemic failings of firearms regulation also create a strong case for reform of firearms law on Convention grounds for, at the moment, it is questionable whether the right to life is adequately protected by law as Article 2 ECHR requires.

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