NHDPFs AND INCAPACITANT SPRAYS
Picture: Source Unknown (this image will be removed if it is believed to have breached copyright)
The law around firearms is complicated and frequently
changes. I am not a lawyer, so my
comments on the law should be treated with caution and for operational purposes
proper legal advice should be obtained.
I was asked a question recently about the possession of
certain weapons by constables of the constabularies that are the subject of
these blogs.
As a probationary police officer I found studying the law
governing firearms difficult. When doing
the promotion exams I found it even more difficult. When training officers I found it very
difficult indeed and when being trained as a tactical and strategic firearms
commander I found it massively difficult.
The Firearms Act 1968 is probably one of the most amended acts on the
statute book. Very little of what I
learnt in the mid 1980s still applies today.
In the world of operational policing the subject is second only to
traffic in being seen as something belonging to the world of the specialist. However
I would say that it sits firmly in the
mainstream and that this is as true for NHDPFs as it does for everyone else –
with the added complications created by the legal and constitutional position
of NHDPFs.
Weapons such as PAVA etc (i) have become essential tools in
modern policing. Similar to ‘pepper
sprays’ PAVA is an irritant that can be
used by law enforcement officers to subdue offenders who are violent. It is thought to be stronger than CS Gas and
has pelargonic acid as its active ingredient.
There is no doubt that it can be effective quickly and that
its use helps to protect officers and the general public. For this reason it carried by many officers
in Non Home Department Police Forces (NHDPFs), who deserve as much protection as
anyone else who holds the office of constable.
PAVA and like products are prohibited weapons within the
meaning of s 5 (1) (b) Firearms Act 1968 (i), viz they are weapons of whatever description
designed or adapted for the discharge of any noxious liquid, gas or other thing. It is an offence to possess such a weapon
unless exemptions or authorisations apply.
Prohibited weapons such as PAVA are also firearms as defined in s57 of
the 1968 Act.
So how can police officers be in possession of such objects?
For officers from forces maintained under the Police Act
1996 or the force known as Police Scotland things are quite
straightforward. Exemptions exist under
s54 (3) (b) of the Firearms Act 1968 in respect of possession etc. But officers in NHDPFs are not ‘members of a
police force’ for the purposes of most Acts of Parliament.
For the ‘big three’ (ii) the legislation is now clear. MDP is a creature of the Defence Council and
is therefore exempt under the provisions that apply to the Ministry of
Defence. BTP and CNC are included in
amendments made to s54 of the Firearms Act.
I say ‘now’ because the amendment touching on BTP was not made until
2014, despite BTP having access to firearms, off and on since the 1940s (and
possibly earlier). I might produce a
separate blog on BTP’s firearms journey.
It is a case study that well illustrates why the legislative position of
NHDPFs needs to be radically updated.
But what about firearms such as PAVA that are routinely
carried by several port and other constabularies? Those organisations are not automatically
exempt from the provisions which effectively prohibit the possession of such
weapons. This is an important
point. An inevitable consequence of
possessing firearms is that one day they will be used (iii).
Most of the organisations I have looked at are rather
reticent about answering this question.
One has refused a Freedom of Information Act request on the grounds of
national security on this point and a related one about jurisdiction. It is a strange world when the public are
denied basic information about the powers used by police officers.
As far as I can tell these constabularies have been issued a
s5 (prohibited weapons etc) authorisation by the Home Office. I have been told that the exact terms and the
conditions imposed in these authorities must not be publicly shared on the
instructions of the Home Office, again, if true, not an approach that is in
keeping with principles of openness and transparency.
However an authority issued by the Home Office under s5 does
not, in itself, allow individual officers and staff to possess prohibited
weapons. In most circumstances an
individual firearms certificate would also be required. Such certificates must be granted by local
police forces on proof that there is a Home Office s5 authority in place. Trying to co-ordinate individual certificates
is a challenge and I suspect (although I have not been told) that these
constabularies have registered as firearms dealers to avoid the need to seek
certificates for individuals.
S8 of the 1968 Act provides:
“A person carrying on the
business of a firearms dealer and registered as such under this Act, or a
servant of such a person may, without holding a certificate, have in his
possession, or purchase or acquire, a firearm or ammunition in the ordinary course
of that business”.
It is easy to see the attraction of this section: if you are
a dealer then all of your staff can possess weapons. This device has been used to allow private
security guards to possess weapons when escorting ships at risk from pirates. Indeed I have heard Home Office officials advocate
registration as a dealer as a way of avoiding the need for having a
certificate(iv).
I assume that the Home Office and the constabularies that
have registered as dealers have taken legal advice, so it is perfectly possible
that my concern over the use of this mechanism is ill founded – although I have
also seen legal advice that disapproves of it.
My concern is simply put.
Constabularies are not, in any real sense of the words, firearms dealers. The use of s8 is a conceit. It is being used as a fiction to avoid the
core provisions of the Act itself. I
would suggest that it is not a firm foundation on which to possess and
potentially use prohibited weapons.
I note that s34 (1A) of the Firearms Act allows Chief
Officers of Police (in Home Department Forces) to refuse to register a
prospective firearms dealer:
“The chief
officer of police may refuse to register an applicant unless he is satisfied
that the applicant will engage in business as a firearms dealer to a
substantial extent or as an essential part of another trade, business or
profession.”
If this is the route by which smaller non home office constabularies
seek to legitimise their possession of prohibited weapons then I assume that no
local force has raised an objection.
My view is a simple one.
ALL constables and police staff deserve the tools they need to protect
themselves (and the public) in the execution of their duty. The law should be framed in a way that there
can be no doubt about the lawfulness of their reasonable actions. IF necessary the
law needs to be changed.
For completeness I would add that officers of the Belfast Harbour Police and Belfast International Airport Police carry handguns and are authorised to do so by the Firearms (Northern Ireland) Order 2004.
All my posts are little more than an expression of opinion. My views on the subjects of this blog are worth
no more than anybody else who has examined the issues. This post is more complex than most. It seeks to look at issues that include matters
of law and policy. I would therefore
welcome alternative views, corrections and the sight of any legal opinion
touching on this issue.
Philip Trendall
March 2026
(i)
Firearms Act 1968, 1968 Ch 27
(ii)
This phrase describes the largest of the Non
Home Department Police Forces, viz the British Transport Police (BTP), Civil
Nuclear Constabulary (CNC) and the Ministry of Defence Police (MDP).
(iii)
I have borrowed this phrase from some legal
advice I once read – it concentrated the mind and put into context everything
else that followed in the document
(iv)
This was a long time ago (2011 to be precise).
No comments:
Post a Comment