There are occasions when a shooter might wish to borrow a friend's gun, but, says Graham Downing, do you know an "owner" from an occupier?
I have a friend who wants to come shooting with me. He doesn’t have his own certificate. Is it legal for me to lend him my gun if I accompany him?”
This question, or some variation on it, is the one that, as consultant on shooting matters to the Countryside Alliance (CA), I hear probably more than any other.
I know that I am not alone in this because, when I spoke about the matter of the borrowed shotgun at the Law Commission’s recent conference on firearms law, my colleague Bill Harriman confirmed that BASC’s firearms department is asked about the borrowing of shotguns several times each week.
The law as it stands
Let’s start with the law as it has been for the past 47 years: “A person may, without holding a shotgun certificate, borrow a shotgun from the occupier of private premises and use it on those premises in the occupier’s presence.” This sentence, which you will find in Section 11(5) of the 1968 Firearms Act, implies that a number of conditions must be applied before this exmption to the usual requirement to hold a certificate is engaged.
First, the shotgun must be borrowed. Most of us understand the concept of borrowing and lending: a temporary parting of possession for which no charge is made. Second, the premises — which includes land — on which the borrowing takes place must be private. This would include most farmland or woodland in private ownership, whether or not any public footpath or bridleway runs across it. It would not, however, include designated public access land, Forestry Commission woodland or Crown foreshore to which there is public access. Third, the borrower must be in the lender’s “presence”. This is not defined in law, and there is certainly no requirement for the borrower to be under the lender’s close supervision. This is required when a person under 15 years old is using a gun under the supervision of an adult over the age of 21.
It is generally held that if the lender is within sight or sound of the borrower, he is regarded as being “present” and the requirements of the law are fulfilled. So the lender could, for example, be standing at another peg in the line of Guns or observing the shoot from the sidelines.
Who is the “occupier” of the land?
What trips most people up, though, is the fourth requirement: that the lender must be the “occupier” of the land in question. Again, “occupier” is not defined in the Act, nor has it been tested in the courts, but we can be quite clear that it does not simply mean a person who has verbal permission from the farmer or landowner to shoot over a particular piece of ground. Nor does it mean a mere member of a shooting syndicate or club, even if he has shot on the land for many years and knows the place like the back of his hand. In practice, there aren’t many shooters who can claim to be the occupier of land. These would, of course, include that fortunate few who own the land on which they shoot, but they would also include those with a formal legally valid sporting lease or licence in their own name. So a lawful sporting tenant would be an occupier, as would someone with a written licence from the landowner to shoot on a particular piece of ground. A signed letter to the effect that the landowner authorises you to take particular species of game and wildfowl between particular dates could well be construed as a “licence”.
Remember that it is only the occupier who can lend his gun to the non-certificate holder. It is not permissible, say, for a shooting guest or syndicate member to turn up at a shoot with his guest in tow, and loan him a gun for the day, even though many people do exactly this and express great surprise when I tell them that they are breaking the law. “But I’m standing right next to him and supervising him all day,” they say. If you’re not the occupier of the land, you can’t lend the gun.
Likewise, the parent introducing to shooting a child who is not a certificate holder, or accompanying that child on a Young Shots’ day, cannot lend a gun unless they are the occupier. It is for this reason that Young Shots are always encouraged to have a certificate of their own because, as a certificate holder in their own right, they may borrow a shotgun from anyone for up to 72 hours. Of course, the 1968 Act was framed in the days when the shooting of game was very much associated with the ownership and occupancy of land, so perhaps it is no surprise that it reflects the attitudes of the times. But today most people who shoot, or who wish to do so, are not drawn from the landed classes, and this part of the law at least is increasingly out of step with modern practice. That is why the shooting associations all agree that the law should be altered and brought up to date. The simplest remedy, and the one supported by the CA, is to delete the word “occupier” and insert in its place “authorised person”.
Defining an “authorised” person
If the words “authorised person” were to be defined as they are in other legislation such as the Wildlife and Countryside Act, with which shooters are familiar, this would have the effect of enabling a person who is authorised to shoot by the landowner or someone who holds the shooting rights over the land in question to lend his gun to a non-certificate holder. This would, of course, depend upon all the other conditions outlined above being fulfilled.
So the syndicate member would be able to lend his gun to a guest, as would the roughshooter who was able to verify that he had verbal shooting permission from the farmer. Shooting club members operating over private land could also lend a gun to a guest, though wildfowlers operating on foreshore where there is public access could not.
It is argued that a new “borrowed shotgun” exemption could simply be granted to any certificate holder lending his gun while accompanying the borrower. And so it could, but the drafting of such a law would raise new questions over matters such as the level of supervision, questions that currently do not exist. Substitution of “authorised person” for “occupier” has the advantage of simplicity, and it would do the job nicely.
It could also be applied in a parallel situation, that of the borrowed rifle provision at Section 16 of the 1988 Firearms (Amendment) Act, known as the “estate rifle clause”, whereby a person who is not a firearm certificate holder may borrow a rifle and ammunition for use over private land from the occupier or his servant while in the occupier’s or the servant’s presence.
Moreover, because the professional stalker or gamekeeper would, by the nature of his position, be an “authorised person”, the outmoded and outdated reference to “servant of the occupier” could quite well be dropped altogether.
It’s a nice thought, and one that I hope has been well received by the Law Commission, which is reviewing its work and will be making recommendations to Government. But until and unless any change is made to the law, let us be quite clear that only the occupier of land may loan a gun to the guest who does not hold a certificate of their own.
Are you considering inviting someone who is not a certificate holder to shoot with your gun?
Then ALL of these four tests must be passed:
The other person must BORROW your gun
You must be the OCCUPIER of the land
The land must be PRIVATE
You must be PRESENT
Remember that if you are aged under 18, you may only lend a gun to someone aged over 18. Remember that if a person aged under 15 is using a shotgun, they must be SUPERVISED by a person aged over 21