By Prior Beharry
THE High Court gives Police Commissioner Erla Harewood-Christopher 28-days to make a decision on a Firearm User’s Licence (FUL) application of a Tobago businessman.
Pheon Solomon had applied for an FUL in 2017, was granted a provisional licence on June 24, 2021 and this expired on August 25, 2021. He has not received any notification on whether the substantive FUL will be granted.
The businessman was granted leave to proceed with his judicial review application last September.
On Monday, Justice Frank Seepersad declared that the police commissioner failed within a reasonable time to make a decision to either approve or deny the Solomon’s FUL application.
The judge said, “The gist of the claimant’s complaint is hinged upon the contention that the defendant has failed to make a decision with respect to his FUL application within a reasonable time.”
According to the judgement, the 35-year-old businessman is engaged in several businesses including construction, maintenance, real estate, marketing, equipment rental and clothing retail. His businesses are predominantly cash based.
In evidence, Solomon said there were several attempts to break into his home and his businesses.
In its defence, the police commission submitted that the delay in processing the application was due to:
(1) the backlog of applications which, according to Mr Cuffy’s evidence, is in excess of 25,000;
(2) two audits which disrupted the process;
(3) the relocation of files;
(4) the Covid-19 pandemic; and
(5) a staff shortage.
Justice Seepersad said, “Law abiding citizens in this country are living in fear and the unabated increase in violent crimes which involve the use of illegal firearms cannot be ignored.
“In fact, it appears, that those intent on wreaking havoc have a ready arsenal at their disposal while the majority of law-abiding citizens are unarmed and vulnerable.”
The court heard that there were 25,000 pending FUL applications.
Plenty work Stance
Justice Seepersad said, “In the submissions filed, the defendant sought to justify the delay by citing the numerous functions which the commissioner of police has to discharge and it was suggested that there are some 25,000 pending FUL applications. Reference was also made of the operative limitations which exist.
“The defendant in her submissions at paragraph 45 also stated that it is unfathomable to expect that she should spend her days rendering decisions on FUL applications having regard to the plethora of issues which fall under her remit, such as the crime rate, gun-related violence as well as the obligation to manage the human and financial resources of the service.
“The Court has great difficulty with this aspect of the defendant’s submission.
“There is no evidence which suggests that additional duties have been added to the office of the Commissioner of Police.
“The role and functions to be discharged by the holder of this office are clearly defined and settled and those who aspire to hold the position are deemed to be fully cognisant of the said demands.”
He said, “It is simply outrageous that a sitting commissioner would elect to adopt a, ‘Well I have plenty work to do’ stance, in defence of the delay which has transpired in this case.”
Justice Seepersad added, “The allure of high office often distracts from the onerous obligations which such offices impose but it is imperative that aspirants are, ‘fit for purpose; and equipped and capable of addressing with sound judgement and alacrity, the multitude of obligations which the office imposes. To suggest that one core function is more important than another is a classic “cop-out” stance which does not instil any confidence as to the office holder’s capacity or capability to discharge the required statutory obligations.
“Incompetence or restricted ability cannot and will not be used by this court as a ground of justification when there is a delay in the discharge of a duty imposed by statute.”
Regarding the volume of applications, Justice Seepersad said, the police commissioner provided no evidence as to the process which is engaged or the number of applications which pre-dated the Solomon’s application.
Justice Seepersad said, “The assertion that there are 25,000 pending FUL applications, by itself, does not assist the court in ascertaining the turnover or the efficiency with which applications are reasonably determined on a periodic basis.”
He added, “The court further noted that no detailed explanation was advanced so as to justify the need for two investigations, the first to determine if a provisional licence should be granted and then another to determine if a FUL should be granted.
“In the absence of an explanation as to the differences in criteria, it appears that the process may be duplicitous. After a thorough background check is engaged inclusive of a medical and physiological assessment it would be reasonable and rational to conclude that the provisional licence would enable firearm training and the generation of a certificate of competence and if no such certificate is issued then a FUL cannot be given.”
Justice Seepersad said the relocation of offices cannot be used as a viable explanation.
He said, “Astute leader must identify associated problems and proactively implement systems to abate foreseen difficulties. Notwithstanding the move, planned, practical and proactive steps could have been implemented so as to ensure a seamless transition.”
Justice Seepersad said, “The continued use of the Covid pandemic as a crutch for the absence of efficiency post 2021 also lacks merit. Life normalised in 2021 and there could be no ascertainable impact which Covid could have imposed upon the progress of the Claimant’s application upon the expiration of his provisional licence in August 2021.”
The judge declared that the police commissioner has failed within a reasonable time to make a decision to either approve or deny the FUL Application in accordance with her statutory obligations.
Justice Seepersad ordered that the police commissioner be given 28 days to determine whether the FUL application has been approved or refused in accordance with section 17 of the Firearms Act, Chapter 16:01.
Attorney L Boyer instructed by V Ramroop appeared for Solomon while A Mungroo instructed by D Greendige represented the police commissioner.
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