There are approximately 500,000 firearms licence or shotgun certificate holders in the UK and, as far as is known, none of them is immortal.
Gun owners come from all walks of life. Live quarry shooters may engage in game shooting, pest control or species management. Target shooters may be involved in competitions from small club to international or Olympic level. Even the replica muskets used by historical re-enactment societies may be classified as shotguns.
The dilemma
By Sections 1 and 2 of the Firearms Act 1968 (the Act), any person in possession of a firearm or shotgun commits an offence punishable with up to five years imprisonment unless they hold a licence or certificate authorising that possession. 'Possession' is not limited to immediate physical custody and is defined as including having custody or control, even where the firearms are stored many miles from the owner’s home (Sullivan v Earl of Caithness [1976] 1 QBD 504). This creates a significant dilemma for the personal representatives (PR) of a deceased licence holder unless they are also licence holders in their own right.
In Scotland and Northern Ireland air guns must be included in a licence. In England and Wales this applies only to some high powered air guns, so the majority of air guns in the possession of a deceased are unlikely to need a licence and can be dealt with in the same way as any other personal assets of the estate. Similarly, some firearms are designated as antiques and do not require a licence.
The difficulties for PRs are exacerbated by the decision of the Court of Appeal in R. v Chelmsford Crown Court ex parte Farrrer [2000] EWCA Civ J0306-10. In that case, the applicant had applied to renew his shotgun certificate. The gun was stored in a secure cabinet in a cottage occupied by his mother, who did not have a certificate.
When a police officer made a pre-arranged visit to carry out an inspection the applicant was not present and the officer offered to return later. Helpfully, the applicant’s mother told him there was no need, retrieved the key from its hiding place and the inspection took place.
Renewal was refused, solely on the grounds that the applicant had permitted access to his gun by an unauthorised person and the court upheld the refusal. Consequently, in most cases, a living licence holder cannot tell a potential PR how to access the guns for the purpose of valuation and disposal unless the PR holds a licence or certificate.
The will writer
The difficulties and concerns for PRs and family can be averted during the gun owner’s lifetime in a number of ways but the issue needs to be identified and addressed in advance. This can be done by a routine enquiry when instructions are taken to prepare a will. If the testator holds a licence, details of the whereabouts of the keys, or combination to the secure gun safe, could be given to one or more fellow licence holders who are willing to assist the PRs when the time comes. They may also have secure storage capacity and can lawfully take possession pending disposal.
The probate practitioner
When lifetime arrangements have not been made for the legal and secure retention of firearms, the difficulties facing the unlicensed PR are not insurmountable. If the firearms licence or shotgun certificate can be located it should reveal details of all firearms and shotguns held by the deceased. If it cannot be found, the police should be able to supply a copy. This will enable the PRs to establish what is contained in the gun safe, even if they cannot initially gain physical access to the contents.
Section 7 of the Act enables the police to issue a temporary permit enabling PRs to possess the guns solely for the purpose of securing and lawfully disposing of them, but Section 21 of the Act prohibits the issue of a permit to anyone who has received a custodial sentence (immediate or suspended) of three months or more within the past five years. A sentence of three years or more leads to a ban for life. Also, a person may be prohibited by the terms of any licence or court order so the police will need to make background checks.
Each police force determines its own procedure for issuing temporary permits. When they deal with well-meaning people who are wrestling with conflicting legal duties, it can be expected that common sense will play a significant part when applying the statutory test to possess firearms. Speed and sensitivity are clearly needed. Whilst overall service levels vary between forces, the British Association for Shooting and Conservation (BASC) report that, in their experience, firearms licensing managers will bend over backwards to help the personal representatives of a deceased certificate holder. The police do, however, need to satisfy themselves that the guns are being stored safely until they are sold or transferred.
Some firearms and shotguns are virtually worthless. Others command six-figure prices so value will need to be considered for IHT purposes. A Registered Firearms Dealer (RFD) should be able to assist with valuation or, in many cases, indications of value can be gained from online sites like Guntrader.
The statutory and regulatory provisions relating to gun control are complex and convoluted but licences and certificates helpfully include details of the regulatory requirements on disposal of firearms. The handover must be effected in person and the recipient must produce their licence. Details of the disposal must be recorded on the licences of the deceased and the recipient and the local police must be informed of the transfer within seven days. This can readily be done online.
Whilst disposal can be easily effected directly to a licence holding beneficiary or through a RFD, problems can arise if a private sale is envisaged. It is an offence under Section 108 of the Gun Barrels Proof Act 1868 to sell a gun which is out of proof and, if there is any doubt, especially in the case of an older or modified firearm, the advice of a RFD should be sought. A private sale to a known acquaintance can go smoothly but advertising the location and availability of firearms by the inexperienced can attract criminals and has led to burglary or robbery in some extreme cases.
This article can only provide a basic outline of the most likely scenarios. Additional detail may be gleaned from the Home Office Guide on Firearms Licensing Law, especially chapter 14, or the BASC website.
Andrew Jones
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