I see that the subject of carrying a weapon for protection has emerged once again.
As a leading authority on the subject on our right to arms, I can tell you that it is lawful to carry an asp for example, for protection. I carry one for personal protection and have done so for nearly a year. You have to know what needs to happen before the police can arrest you for carrying such a weapon and you have to know the correct answers.
I know the law, better that the police, solicitors, barristers and most Judges. A High Court Judge found this out recently when I went to court over the issue of our right to arms.
This puts me in the unique position of knowing what I am talking about. The law that allows a policeman to carry his extending baton or truncheon is the same law that allows me to carry an asp-common law.
I have an appeal lodged which will be heard very soon. I am reclaiming my right to arms for defence. Those who wish to keep arms for target shooting can wait until the next Act of Parliament gathers up all your rifles, after all, you only wanted them for sport, didn't you?
I the meantime, the enclosed information may be of help to others who wish to arm themselves. As you can see, lawful authority has never been tested in court.
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"Offensive" weapons.
The carriage of weapons is regulated by the Prevention of Crime Act 1953, which states;
"It is an offence to possess an offensive weapon in a public place without lawful authority or reasonable excuse". (Section 1). The stated purpose of the Bill according to its sponsors was to "tackle the ruffian and those on the fringe of the community who would got out armed with a cosh, knuckle-duster or similar and terrorise others in the neighbourhood. Its main effect was to be not in the vast number of prosecutions, but the "in terrorem effect". It was intended only to "discourage" certain persons from carrying offensive weapons unless they had "lawful authority or reasonable excuse" while respecting the liberty of the subject.
The Bill only applied to the carriage of weapons in public places. Lord Lloyd (a sponsor of the Bill) reminded the House of Lords that; "It should be noted a person who remains on his own property may with impunity go around positively festooned with weapons. If he has a firearm he would need the appropriate certificate. His house may be a veritable arsenal. He will be committing no offence under this Bill".
Hansard, 14 April 1953.
Maxwell Fyffe (also a sponsor) assured the Commons "it excludes the whole class of persons who are on their employers property and doing their work. The night watchman who carries a bludgeon or a life preserver would not come within the scope of this Measure when carrying out his duties on his employers property".
Hansard, 26 Feb. 1953.
The definition of "lawful authority" was not described in the debates in the Commons. It was left to the Courts, and the "good sense" of the police to define.
Lord Widgery stated in Bryan v. Mott; "The reference to lawful authority in the section is a reference to those people who from time to time carry an offensive weapon as a matter of duty-the solder and his rifle and the police officer and his truncheon.They are all carrying offensive weapons, but they do so normally under lawful authority".
"Reasonable excuse" was described, again by Lord Widgery in Evans v. Hughes (1971) ;
"…it may be a reasonable excuse for the carrying of an offensive weapon that the carrier is in anticipation of imminent attack and is carrying it for his own personal defence, but what is abundantly clear to my mind is that this Act never intended to sanction the permanent or constant carriage of an offensive weapon merely because of some constant or enduring supposed or> actual threat or danger to the carrier".
These Judgements were before the case of Pepper v. Hart and the Attorney Generals new directions on the interpretation of legislation. The learned Judge may therefore be forgiven for mis-stating the intention of Parliament.
The meaning of the term "reasonable excuse" was described in debates on the Prevention of Crime Bill in the Lords; " If a woman has reasonable cause for thinking she was going in danger of her life, she can carry a weapon. There is no absolute prohibition".
Lord Lloyd, Hansard, 14 April 1953.
The Home Secretary Sir Frederick Maxwell Fyffe, (also a sponsor) said in the Commons ; " it is not the intention of the Bill to place in peril (of breaking the law) the innocent citizen pursuing his or her daily round".
Hansard, 26 Feb. 1953.
Lord Saltoun, who had spoken vigorously on behalf of the liberties of the subject, summarised the position by reminding the Lords of the importance of the statement made by Lord Lloyd, who represented the Government, saying; "it is not the purpose of this Bill to prevent people from carrying weapons if they think it is necessary for their defence. I hope that is noted".
What "lawful authority" consisted of was also debated, and Lord Lloyd confirmed that; "it is the Common Law duty of every citizen to take what steps he can to prevent a breach of the peace, and that this duty may include the bringing of assistance to the victim of an unlawful assault of which he may be a witness".
Hansard, 28 April 53.
This refers to the common law authority to carry weapons. The duty and right of the citizen to have arms comes from the obligation to join the "hue and cry" to catch criminals and to assist in the defence of the realm in an emergency. Only age and infirmity are valid exemptions.
The Bill of Rights 1688, also states the subjects' rights in relation to possession of weapons. Article 7 states; "the subjects may possess arms for their defence, suitable to their condition and as allowed by law".
It is a Statute in Force, and should be taken into account with the Prevention of Crime Act. The status of the Bill of Rights as "lawful authority" has not been questioned because Crown servants are obliged to respect it. No cases where the "lawful authority" of an ordinary person (i.e. not a Crown servant off duty) was an issue have been placed before the Courts by the police as far as we have been able to determine.
Lord Widgery mentioned the status of those who carry weapons "as a matter of duty". British soldiers and police officers are, in law, merely citizens with extra responsibilities. They exercise their common law right to carry weapons, no more and no less. Members of the armed forces also have the protection of Article 6 of the Bill of Rights; " That the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law". This requires Parliament passes an Act each year which allows the Monarch to legitimately retain Her naval, land and air forces. It affords protection to the subjects against a new Oliver Cromwell.
The Firearm Act 1968 also recognises the common law rights of members of the armed forces and police. Section 54 confirms that they are exempt from the controls on simple possession of arms in the course of their duty.
The Bill of Rights specifies the Oath of Allegiance that is to be taken by Crown servants. Oaths have been required since Magna Carta (1215) which was last confirmed in the Statute Law Revision Act 1967. Magna Carta states "We will appoint as justices, constables, sheriffs or other officials only men that know the law of the Realm and are minded to keep it well".
The constable's Oath includes "I will to the best of my skill and knowledge prevent all offences against the persons and properties of Her Majesty's subjects". The Judicial Oath includes "I will do right to all men according to the laws and usage's of the kingdom".
Individual members of the police and Judiciary are therefore obliged to accept that the subject may lawfully possess arms for defence. The principle from Pepper v. Hart now allows us to reclaim the right to carry the tools of self-defence which has been unlawfully encroached on. Weapons, such as telescopic batons, are allowed to be carried by responsible persons in public places because the common law, the prevention of Crimes Act and the Bill of Rights all give lawful authority for them to be possessed for self-defence.
The Home Office have discouraged the carriage of defensive weapons by giving incomplete summaries of the law in their crime prevention advice publications which are distributed by police forces. They recommend "instant arming" with everyday objects such as rolled up newspapers as likely to be effective. Some older, pre Pepper v. Hart, publications claimed that there was no right to carry arms for self-defence. Recent examples are more carefully worded, presumably because the civil servants concerned are aware of their legal responsibilities as Crown servants to respect the subject's rights. The training given to police officers has selectively described the law by focusing only on "reasonable excuses". The time has come for this situation to end. The law is clear, and there is no need to wait for a new stated case.
As was noted above, "What the law is every subject knows; or may know if the pleases; for it depends not on the arbitrary will of any judge; but is permanent, fixed and unchangeable, unless by authority of Parliament". "A Statute is, after all, the formal and complete intimation to the citizen of a particular rule of law which he is enjoined, sometimes under penalty, to obey and by which he is both expected and entitled to regulate his conduct".
Use of force in self-defence.
Section 3 of the Criminal Law Act 1967 states "any person may use reasonable force for the prevention of crime or to arrest offenders or persons unlawfully at large." Because legitimate self-defence will invariably involve the prevention of a crime the question of what is reasonable applies to both issues. It should be noted that there is no mention of "minimum force" in common or statute law. The meaning of the phrase "reasonable force" is not defined elsewhere in the Act.
Reasonableness has, until now, been a matter of opinion. However the Hansard record of the Lords debate on the Bill which became the Criminal Law Act clarifies the will of Parliament in relation to this matter. On 1st November 1966 Lord Brentford pointed out in debate "The Common Law permits the use of reasonable force where necessary" and asked why the word "necessary" had been omitted in the Bill because " it is the tradition of this country that a person may use force only if and when force is necessary"..."adding the word "necessary" will be beneficial for constables and others in that if they are limited to reasonable force they may have very great difficulty in arresting a criminal who is seeking to get away and who himself uses force.
Under the wording of the clause as it is drawn they are entitled only to use reasonable force. Now what is reasonable force? Obviously, reasonable force can only be force of a moderate character. But, in the circumstances that I have described, it may be necessary, in order to effect an arrest, for the constable to use forcen of a major character, or to use the maximum degree of force. In the> circumstances, that force would be "such force as is reasonably necessary".
Lord Stonham, a sponsor of the Bill, replied explaining that the Government preferred the Bill as drafted without the word "necessary" because "If we accepted Lord Brentford's amendment then a person who used even reasonable and justifiable force would not be excused unless he could prove that the force was reasonably necessary. There are two things, reasonable and necessary. In the view of my department, that would place too heavy a burden on a person who acted in a way reasonable in the circumstances at the time.
It is important to bear in mind the kind of case in which clause 3 would be operating. There is a shout of "stop thief". You look up and see three men run from a bank and jump into a car and you pick up some heavy object and throw it at the windscreen. Or a man discovers a burglar in his house and tackles him by any means that occur to him. In neither case does he know of the existence of this particular provision, nor could he stop to think what his legal rights were. The important thing is that, in our view, the provision as we have it fulfils what is essential that it should protect anyone who, on the spur of the moment, behaves in a common sense and public spirited way. In our view it would not be right for the provision to give rise to nice, exact questions, argued with hindsight, after the event, in the sedate atmosphere of the law courts, as to whether the action taken was strictly necessary, or as to what alternatives there may have been... we use only one conception, reasonableness."
The meaning of the word "reasonable" is clarified. Note also that from the Interpretation Act the word "may" is permissive. The subject may use force in accordance with Section 3 of the Criminal Law Act 1967. He is excused in law from what would otherwise be assault on another. And no-one may set aside the law and deny him the legal right to use force in self-defence. The policy of some employers to forbid staff to use force in self-defence, for example teachers or social services employees, is therefore unlawful.
Confirmation from the High Court that "It is not in dispute that the Bill of Rights 1688 gave the citizen a right to hold arms". This is the first occasion in modern times where the protection given to the subjects liberties by the Bill of Rights have been explicitly confirmed by the Judiciary. It is significant because the Bill of Rights recognises all the subjects rights, with no exceptions. Excuses used by the political establishment for infringements of our rights such the doctrine of implied repeal and the supremacy of Parliament will no longer work.
Below is the Judgement given by Justice Popplewell in my application for leave for judicial review of decisions made by the Chief Constable of Thames Valley Police and the Home Secretary in relation to an application that I made to them for the necessary permits to possess weapons for self-defence & defence of the realm.
As you may recall, I am seeking to reaffirm that the Bill of Rights 1688 requires Crown servants to respect the common law rights of the subject.
To do this I have researched what the law is and how it should be applied. By comparing the present application of the law with what the common law requires, we can reclaim those rights which have been infringed.
The law consists of common law, statute law and regulations authorised by statute. The word "common" comes from the twin principles that what has been the common custom has become the law, and because the law applies in common to all, including Crown servants.
This contrasts with the continental system based on Roman law where rights derive from the permission of the state, and can be taken away by the state. Under that system the state may dispose of the lives and property of its citizens as the ruling clique chooses. I am not prepared to allow the"Code Napoleon" to be applied here.
The common law will protect us if encroachments by the state are challenged through then Courts. Under our adversarial system of justice it is the subject's responsibility to claim his rights. To do that we must know what our rights are and be prepared to stand up for them.
Blackstone describes the common law rights of the subject; " The rights, or, as they are frequently termed, the liberties of Englishmen consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in full vigour; and limits, certainly known, be set to the royal prerogative.
And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence.
And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints - restraints in themselves so gentle and moderate, as will appear upon further enquiry, that no man of sense or probity would wish to see them slackened.
For all of us have it in our choice to do everything that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow-citizens".
The common law is not an anachronism, which has fallen into disuse. In the debates on the incorporation of the European Convention on Human Rights into UK law, Lord Wilberforce confirmed that the civil rights of the subject are protected by the common law;
"Perhaps I may remind noble Lords of what our essential civil rights, as guaranteed by the common law, are: the presumption of innocence; the right to a fair hearing; no man to be obliged to testify against himself; the rule against double jeopardy; no retrospective legislation; no legislation to be given an effect contrary to international law--an old principle which has been there for years; freedom of expression; and freedom of association.
All of those were in the minds of our delegates firmly secured already by the common law to this country, and not intended to be superseded or modified by the new inter-state obligations in the convention.
Hansard 3 Nov 1997: Column 1279.
It should be noted that the right to arms comes from the fundamental common law right, the presumption of innocence. The law does allow the possession of arms, including firearms held on licence, for self-defence and the subject is at liberty to take advantage of the law, which is his birthright.
The only persons who can be denied these rights are convicted criminals.
The case of R. v. Lord Chancellor ex parte Witham (1997) reaffirmed the subject's common law right of access to the courts for redress of grievance.
If access to the courts is assured, we can reclaim our other rights. My case has followed a similar course to Mr Witham's in that obstacles and delays have been put in my way. His first application for Judicial review was rejected as mine was. He appealed against that decision and was successful. I have not appealed. Instead I have applied for judicial review of how Justice Popplewell arrived at his decision.
My intention is to reclaim all the common law rights of the subject once and for all. It is my contention that the Bill of Rights, which is a Statute in Force, requires him as a Crown servant to respect my rights and liberties, including the right to arms, when it states " all and singular the Rights and Liberties asserted and claimed in the said Declaration are the true auntient and indubitable Rights and Liberties of the People of this Kingdome and soe shall be esteemed allowed adjudged deemed and taken to be and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said Declaration And all Officers and Ministers whatsoever shall serve their Majestyes and their Successors according to the same in all times to come".
Mr Popplewell in his judgement below has accepted that the right to arms existed until the Firearms Act 1968. He then claims that although it did not say so, the intent of Parliament in 1968 was to remove the subject's right to arms.
It is my case that the Judge is guilty of misconduct in office by not observing the Bill of Rights requirement to respect the liberties of the subject.
This will be the basis of my application for judicial review of his decision. The Judge was also negligent in not taking into account all of the points which were raised in my submissions. If you compare what was in my affidavit with the focus of the Judgement you will see that many questions remain unanswered.
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IN THE HIGH COURT OF JUSTICE - CO/2750/98
QUEEN'S BENCH DIVISION
ROYAL COURTS OF JUSTICE
STRAND
LONDON WC2
Friday 2nd October 1998
Before Mr Justice Popplewell.
R v H M Government
(Ex parte Michael James Burke)
MR JUSTICE POPPLEWELL. This is an application by the applicant in person to challenge the decision of the Chief Constable of Thames Valley and the Home Office refusing him a certificate or permit to hold a firearm for self-defence. The applicant seeks Judicial review on two grounds. Firstly, he says that the provisions of the Firearms Act 1968 are contrary to the rights conferred on citizens by the Bill of Rights and that the Firearms Act has not repealed the Bill of Rights: secondly, that from the correspondence, it appears to suggest that the secretary of State has a policy that on no account will a permit be granted for personal protection purposes.
Section 7 of the Firearms Act 1968 reads:
"A person who has obtained form the chief officer of police for the are in which he resides a permit for the purpose in the prescribed form may, without holding a certificate under this Act, have in his possession a firearm and ammunition in accordance with the terms of the permit."
By section 5(1A):
"Subject to section 5A of this Act, a person commits an offence if, without the authority of the Secretary of State, he has in his possession, or purchases or acquires, or sells or transfers" and then various items, including effectively, a gun.
It is not in dispute that the Bill of Rights gave the citizen a right to hold arms. The Question which is posed is whether the Firearms Act, which does not expressly repeal the Bill of Rights, should be taken implicitly so to have repealed. The general position in law is this. Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the latter by implication repeals the earlier.
The commentary in Bennion on Statutory Provisions says that:
"If a later Act makes contrary provision to an earlier, Parliament, thought it has not said so, is taken to intend the earlier to be repealed.
The same applies where a statutory provision is contrary to a common law rule." I have no doubt that the Firearms Act 1968 which is a successor to a number of Firearms Acts going back to 1920 was intended to repeal the right of the citizen to bear arms. Accordingly, in my judgement, the applicant is governed by the Firearms Act 1968 and reference to the Bill of Rights will not assist him.
The second point is the question of the secretary of State's approach. His letter dated 2nd October 1997 reads as follows:
"Thank you for your letter of 24 September 1997 about the Secretary of State's authority to possess section 5(1) (aba) prohibited weapons under section 5 of the Firearms Act 1968 (as amended). The secretary of State gives careful consideration to the grant or renewal of authorities to possess prohibited weapons, and I regret to inform you that having considered all the circumstances of the application he has decided not to grant an authority.
Applications for the authority of the Secretary of State are usually made by persons who wish to trade (manufacture, buy, sell etc) in prohibited weapons and/or prohibited ammunition, or who otherwise consider they have a need arising from the nature of their trade, profession, occupation or business.
The Secretary of State normally regards these as acceptable reasons for making an application.
It is not the policy of the Secretary of State's authority to be granted for personal protection purposes. If you consider yourself to be at risk, I have to say that the proper agency for the protection of a country's citizens is its police force. I can only suggest therefore that you contact your local police force and discuss the level of threat you feel yourself to be facing and the precautions you might need to take."
There was a further letter from the Home Office dated 30th April 1998 in which the Secretary of State said:
"The Secretary of State gives careful consideration to the grant or renewal of authorities to possess prohibited weapons and I regret to inform you that having considered all the circumstances of the application he has decided not to grant an authority."
He repeats what was in the letter of 2nd October
"Applications made for other reasons are given careful consideration, however unless there are exceptional circumstances involved, an authority will not normally be granted."
Mr. Burke says that that is a change from the previous letter in which they have set out a blanket policy not to grant the applicant permission for personal protection. He drew my attention to a letter addressed to a Mr. Berry, which says that it is the policy of the government not to allow possession of firearms for personal protection. Mr. Burke does not suggest that he has been under any threat which would give rise to the need for personal protection. Although a challenge can sometimes be made to a blanket policy which is operated without personal consideration, the letters appear to mean that the Secretary of State does consider the personal position, namely those who wish to trade, but he will not grant an authority for self-defence. In the instant case, it is clear that there is no threat to the applicant, so that if the policy were to be challenged, it is clear that the Secretary of State would not in any event grant permission in the instant case because there would be no good reason for it.
For all those reasons, this is an application which I shall not grant because it would be doomed to failure if I granted leave.
> Mike Burke.
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