Dear Editor,

There is a view, although without any legal foundation, in the Office of the Director of Public Prosecutions (ODPP), that the holder of a firearm user’s licence which has expired is in illegal possession of that firearm. The police have been so advised. Even the Firearm Licensing Authority is of this erroneous view.

As a consequence of this view, the holder of an expired firearm licence is charged under section 20(b) of the Firearms Act triable in the Gun Court. That section states that a person should not be in possession of any firearm and ammunition except under and in accordance with the terms and conditions of a firearm user’s licence.

The penalty for contravention of section 20(b) is imprisonment for life or such other term, being not less than 15 years, as the judge of the Gun Court considers appropriate. In practice, however, having regard to the circumstances and nature of the offence, the person is usually given a suspended sentence or the imposition of a fine with a resultant criminal record.

It has never been the intention of Parliament that the holder of an expired firearm licence should be charged with illegal possession of firearm and tried in the Gun Court. The Gun Court Act was established in the 1970s to combat the proliferation of firearms in the country for which the owners did not possess the requisite licence. It was not established to try persons who possess the requisite licence but, for one reason or the other, it has expired or not renewed.

It is for this reason, that section 20 of the Gun Court Act was enacted as an exception to section 20 of the Firearms Act. According to section 20 of the Gun Court the possession of a firearm or ammunition by any person should not be in contravention of section 20 of the Firearms Act if he was issued with the relevant licence authorising his possession of the firearm or ammunition. That section further provides that the holder of a licence under the Firearms Act does not contravene section 20 of the Act if he:

a. Fails to pay the appropriate duty in respect of the licence; or

b. The licence expires by effluxion of time; or

c. Breaches any of the terms or conditions included in the licence.

Clearly, section 20 of the Gun Court Act put to rest the misunderstanding that the ODPP has in respect of the holder of an expired firearm user’s licence.

Such a person should be charged, not under section 20(b) of the Firearms Act, but under section 44(5) of the Firearms Act for failure to renew his licence by the non-payment of the appropriate duty. Section 44 creates an administrative scheme for the payment of the appropriate duty to the Collector of Taxes.

The failure to pay the fee in respect of the firearm is a breach of a revenue requirement triable before a Resident Magistrate’s Court. If the offender is found guilty, he is liable to a fine not exceeding $2,000. Failure to pay the fine will result in imprisonment with or without hard labour for a term not exceeding 12 months.

Unfortunately, over the years, several people whose firearm user’s licence has expired due to an effluxion of time or failure to pay the appropriate licence fee, have been charged, tried and convicted in the Gun Court due to an erroneous interpretation of the law.

Hugh Wilson

Attorney-at-Law

Wilson & Franklyn

hughfwilson@cwjamaica.com