A man whose firearm licence was not renewed this year lost his appeal this week to the Cayman Islands Court of Appeal.
Technically, Dennie Warren Jr. was applying for an extension of time so he could seek judicial review of the Commissioner of Police’s decision not to renew his firearm user’s licence for a Winchester shotgun. Court president Sir John Chadwick told him that judicial review is a procedure for cases in which there was no alternative remedy, but the Firearms Law does provide a remedy by way of appeal to the Governor in Cabinet. Hearing Mr. Warren’s appeal as an application for judicial review would not address his main contention – that it was an abuse of power by the Commissioner to not renew the licence because Mr. Warren would not agree to an inspection of where he stored his firearm.
Justice Chadwick said the court would hear argument on that point and, if it had real merit, would make a decision accordingly.
Mr. Warren told the court he did not agree to the inspection as a matter of principle. He argued the requirement for such an inspection could be imposed only through a regulation made by the Governor in Cabinet, but the Commissioner of Police had made it a requirement as a matter of policy. By doing so, he had acted outside the scope of his authority, Mr. Warren contended.
He told the court that he had possessed a firearm licence since 1993. The application form asked if he had a secure place in which to keep the firearm and he had answered yes. The application also asked him to declare that, if any information in his application changed, he would notify the appropriate authority within seven days. Mr. Warren told the court that he moved to a new address in 1995 and did inform then-Deputy Commissioner Kevin McCann of the change within seven days. He said Mr. McCann wrote back thanking him and no inspection was done.
“That is the right way to act. Mr. McCann continued to trust me. I followed the law. It wasn’t until 2008 that the issue of inspection came up,” he said.
Justice Chadwick said the present commissioner had taken the position that safe storage of firearms was not a question of “Do I trust, do I distrust”. He was requiring everyone to show they have a gun safe. The judge suggested that policy was driven by what is perceived to be a particular problem on this Island.
Justice Elliot Mottley asked if Mr. Warren’s difficulties with the commissioner arose against the background of an increase in the use of firearms to commit crimes in Cayman. Mr. Warren agreed. Asked if firearms could be stolen and used for crime, he agreed it could happen.
The judge referred to Mr. Warren getting his first licence in 1993. “Cayman is different now. Now [the Commissioner] wants to be sure you have a place that is safe and he sets it out for everybody in a policy, not regulations.”
Justice Chadwick pointed out that the grant of licences is in the “absolute discretion” of the appropriate authority – in this case, the Commissioner of Police. “The Commissioner in exercising his absolute authority is saying ‘I need to inspect your firearm safe.’ This is not something new.”
Mr. Warren disagreed. “No, this is a change of behaviour that started in 2006 and got progressively more restrictive.”
He said the Commissioner did not have the power to enter a private residence.
Justice Chadwick replied, “I don’t think he is saying he has the power to enter. He is saying he can’t exercise his discretion [if he doesn’t inspect the storage]. If you don’t want him to come in and look, that’s fine. You won’t get a licence. He won’t force his way in.”
Taking the argument from another perspective, he asked, “Is it really your case that the Commissioner of Police is acting irrationally if he wants to be satisfied that the licensee will keep the firearm in secure circumstances?”
Mr. Warren said no, but it was irrational in the absence of statute.
The judge asked again, “Are you really saying it’s irrational?”
Mr. Warren replied, “To word it that way is not the argument I’m making.”
The judge suggested it was not surprising that the Commissioner of Police would have a policy. Not to have a policy would mean decisions were arbitrary and random, he said.
The appeal panel, including Justice A. Campbell, retired to consider the matter after more than two and a half hours of discussion with Mr. Warren.
Justice Chadwick read their decision, noting it could not be said that a policy of inspection was irrational and it could not be said that the Commissioner of Police had not followed his own policy in reaching his decision regarding Mr. Warren’s licence.
The challenge, which Mr. Warren had presented with courtesy and some skill, was to the commissioner’s power to impose a requirement for inspection as a matter of policy in circumstances in which the requirement was not imposed by regulations made by the Governor in Cabinet, Justice Chadwick said. In his view, while he accepted that Mr. Warren sincerely believed he was correct, his contention was misconceived and really quite unfounded.
He said the Firearms Law gave the commissioner absolute discretion whether or not to grant licences. He said it was plain that the Commissioner must be satisfied that the circumstances are such that it is appropriate for a licence be granted, having regard to the public interest. He concluded that Mr. Warren’s application had to fail and it was accordingly dismissed.
Crown Counsel Dawn Lewis, from the Attorney General’s office, appeared on behalf of the Commissioner of Police.