Path cleared for gun fight

The Court of Appeal has cleared the way for a high-profile judicial review, after setting aside a ruling by the Supreme Court and allowing a licensed firearm holder to challenge the Firearm Licensing Authority’s (FLA) power to seize his weapon without express statutory permission.

The ruling follows an October 28, 2021 decision by Justice Chester Stamp to refuse the firearm holder permission to apply for judicial review.

Stamp judge also denied the man permission to appeal that decision.

The man had asked the lower court for: a declaration that Section 26B (1) of the [1967] Firearms Act does not permit the FLA to seize his firearm pending the determination of its investigation into a matter; a declaration that the seizure of his firearm on December 31, 2020 by the FLA was illegal, null and void and of no effect; and an order of certiorari quashing the FLA’s decision to seize his firearm.

Stamp ruled that Section 26 of the 1967 Firearms Act permits the FLA to seize a licensed holder’s firearm during an investigation.

Further, he found that the FLA did not act unlawfully when it seized the firearm to determine whether the man’s licence should be revoked.

The judge also determined that the man failed to file his notice of application for leave to apply for judicial review promptly and awarded costs to the FLA, to be agreed or taxed.

Judgment was handed down orally and no written reasons followed.

Complaint from ex-girlfriend

The matter was brought before the lower court after the FLA seized the man’s gun, following a complaint from his “estranged” ex-girlfriend.

It was reported that the woman told the FLA that the man was a “gunman” involved in “scamming” and the impersonation of police officers.

She also reportedly supplied the FLA with photographs of the man dressed as a policeman.

Subsequently, the FLA determined that it was “necessary and expedient” to seize the weapon due to the nature of the complaint/allegations.

The FLA said the seizure was required to conduct an investigation into his fitness to continue holding a licence.

The licensing authority also revealed that the licence issued to the man in 2017 may have been “unlawful” or “irregular”, as he had previously been denied a licence in 2015 and allegedly did not follow the proper appeal or reapplication procedures.

However, the man argued that an FLA employee was paid US$3,000 by his former partner to have the weapon seized.

He claimed that the investigation and subsequent seizure of the firearm were influenced by this illicit payment rather than purely administrative concerns.

The man also countered the impersonation of a police officer argument, telling the court that the photographs were from his work as an actor.

On May 22, 2022, he filed an appeal on four grounds. The court allowed the appeal.

He argued through his attorney Hugh Wildman, that Stamp erred in law in failing to appreciate that Section 26 of the act does not permit the FLA, represented in the matter by Neco Pagon, to seize his firearm while conducting its investigation into his licence.

He said the trial judge also erred in failing to appreciate that Section 35 of the [1967] Firearm Act provides a mechanism for him to be asked to surrender his licensed firearm to the FLA, through the avenue of the minister of national security and that mechanism does not reside with the FLA under the act.

He further contended that Stamp failed to appreciate that the FLA is a creature of statute and does not have any inherent power to seize his firearm; and that any seizure of his weapon by the FLA is illegal, null and void and of no effect.

Added to that, he said Stamp failed to appreciate that the he filed a notice of application for leave to apply for judicial review within three months of the seizure; and in any event that the continued seizure of his firearm constitutes a continuous act of illegality and therefore time would not run against the FLA.

The appeal was heard by a three-judge panel – justices Frank Williams, Nicole Foster-Pusey and Evan Brown.

The judges considered whether the FLA has statutory power to seize firearms during investigations, and if the judicial review application was filed with sufficient promptness.

They concluded that the man, having shown that there is an arguable ground for judicial review with a realistic prospect of success and that there was no delay in making the application, leave to apply for judicial review ought to have been granted by the judge.

“Therefore, the appeal should be allowed, the orders of the learned judge set aside, leave for judicial review be granted with the necessary consequential orders that the learned judge ought properly to have made,” the 27-page judgment said.

However, it noted that leave is granted on condition that the man (appellant) file a claim for judicial review within 14 days of the date of the order.

It said he is to consult the registrar of the Supreme Court to fix a date for the first hearing of the claim for judicial review to take place on or before 25 September 2026, or as soon thereafter as the fixtures reasonably allow.

Further, the court said there shall be no costs of the application in the Supreme Court and that costs of the appeal are awarded to the man, to be agreed or taxed.

kimone.francis@gleanerjm.com