Burke, R (on the application of) v Secretary Of State For Home Department

The Bill of Rights did not confer an unqualified right to possess firearms. Its declaration that Protestant subjects might have arms for defence was declaratory of the common law and expressly subject to what was allowed by law. That qualification referred to the law as it stood from time to time, so Parliament could impose or amend statutory controls. Under Firearms Act 1968, section 5, as amended, possession of a prohibited firearm required the Secretary of State’s authority. A policy generally refusing authority for personal protection was lawful where the Secretary of State retained scope to authorise weapons for needs arising from trade, profession, occupation or business. The application for judicial review was therefore refused.

Michael James Burke sought judicial review of the Home Office’s refusal to authorise his possession of two small-bore handguns for personal protection. He relied on an asserted common-law right to possess arms for self-defence and on the Bill of Rights. The Home Office maintained that authority under section 5 of the Firearms Act 1968 was required and that its policy did not grant authority for personal protection purposes.

The matter came before the Court of Appeal from the High Court of Justice, Queen’s Bench Division, in the decision cited as [1998] EWHC Admin 913. The central issues were whether the statutory firearms controls had validly limited the asserted right and whether the Secretary of State had unlawfully fettered his discretion.

1. Disposition. The Court of Appeal unanimously refused the application. Lord Justice Henry delivered the leading judgment. Lord Justice Morritt agreed, and Lord Justice Peter Gibson agreed that the applicant’s argument was unsustainable for the reasons given by Henry LJ.
2. Bill of Rights and common law. The declaration concerning Protestant subjects’ possession of arms was declaratory of the common law. It contained its own limitation: arms could be possessed only as allowed by law. That meant the law for the time being. The asserted right therefore remained subject to later statutory controls.
3. Effect of the firearms legislation. Parliament was entitled to alter or repeal the common law. Section 5(1) of the Firearms Act 1968, as amended, made possession of a prohibited firearm without the Secretary of State’s authority an offence. The court recorded that amendments enacted in 1988 and 1997 brought small-bore handguns within the relevant prohibition. The applicant could not avoid the statutory requirement by relying on the Bill of Rights or the common law.
4. Policy and fettering of discretion. The Secretary of State was entitled to adopt a policy that authority would not ordinarily be granted for personal protection purposes. The policy was not an unlawful fetter because the Secretary of State recognised applications based on needs arising from trade, profession, occupation or business. The refusal was therefore lawful.

1. Court of Appeal (Civil Division). The application was refused unanimously on 8 March 1999.
2. High Court of Justice, Queen’s Bench Division. The appeal arose from the decision of Mr Justice Popplewell, cited as [1998] EWHC Admin 913.