This mail from John Hurst explains the state of play in Mike Burke's legal fight to force recognition of the RKBA of UK citizens, as seen at December 2007.
Date: Thu, 13 Dec 2007 08:43:44 -0000
From: John Hurst <john.hurst@sky.com>
Subject: RE: an idea (fwd)
John,
This plan is in fact what Mike Burke has done. Here are the transcripts of his Judicial reviews:
The first Judgment said this:
"4. It is not in dispute that the Bill of Rights gave the citizen the 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is whether the Firearms Act, which does not expressly repeal the Bill of Rights, should be taken implicitly so to have repealed.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Act makes contrary provision to an earlier, Parliament, though it has not said so, is taken to intend the earlier to be repealed.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…"
The second, an appeal against the first said this;
"That was the Bill of Rights. It was declaratory of the common law. It contained in it its own words of limitation, namely that the right to have arms for self-defence is limited by the words "and as allowed by law". The law is a changing thing. Parliament by statute can repeal the common law. Parliament has since 1920 (and it may be earlier, but certainly since 1920) imposed limitations on the right to carry firearms, and one of those limitations is section 5(1) which we are here concerned with. Where the Bill of Rights says that "the subject may have arms for their defence suitable for their conditions and as allowed by law", "and as allowed by law" means "and as allowed by law for the time being", and at this time you have to comply with the provisions of the Firearms Act 1968, section 5, as amended, if you wish to have a prohibited weapon; that is to say, you require authority from the Secretary of State. That is the first ground which makes Mr. Burke's application hopeless…".
These Judgments were part of the material used in the Metric Martyrs Judgment;
"63. Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual - not imputed, constructive or presumed - intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute…".
This means that the Home Office may not lawfully have a policy that denies individuals the RKBA. While that policy remains in place, individuals who are not prohibited persons within the meaning of the Firearms Acts do not need to hold FAC to lawfully possess defensive weapons. They are entitled to claim duress of circumstances. Here is a Judgment on this;
"More than 70 authorities were placed before the Court. Of these, fewer than one-third were cited, and only a handful were of helpful significance. In the light of the submissions made to us, we derive the following propositions from the relevant authorities:
1. Unless and until Parliament provides otherwise, the defence of duress, whether by threats or from circumstances, is generally available in relation to all substantive crimes, except murder, attempted murder and some forms of treason (R v Pommell [1995] 2 Cr App R 607 at 615C). Accordingly, if raised by appropriate evidence, it is available in relation to hijacking aircraft; although, in such cases, the terror induced in innocent passengers will generally raise issues of proportionality for determination, initially as a matter of law by the judge and, in appropriate cases, by the jury…".
Note that duress is not a defence against treason. This means that the excuse given for the Home Office's Guidance to Police (13.72 Applications for the grant of a firearm certificate for the applicant's, or another's, protection, or that of premises, should be refused on the grounds that firearms are not an acceptable means of protection in Great Britain. It has been the view of successive Governments for many years that the private possession and carriage of firearms for personal protection is likely to lead to an increase in levels of violence…) is invalid.
The fact that they have got away with it since 1969 will not save them;
"The Bill of Rights remains unrepealed and practice or custom, however prolonged … can not be relied on by the Crown as justifying any infringement of its provisions"
Bowles v. Bank of England (1913) quoted in the House of Commons Briefing Paper on the Firearms Amendment Act 1997.
Arrests by the police and prosecutions by the CPS of individuals who are exercising their rights are therefore ultra vires. It would be better, IMHO, to identify such an individual and properly brief them on appealing against their conviction.
Regards, John Hurst.