A firearm deal­er and three long-stand­ing firearm user's li­cence (FUL) hold­ers have scored a ma­jor vic­to­ry in their law­suit over a new process for the re­new­al of FULs. 

De­liv­er­ing a judg­ment yes­ter­day, High Court Judge Ricky Rahim ruled that the new pro­ce­dure in­tro­duced by now-sus­pend­ed po­lice com­mis­sion­er Er­la Hare­wood-Christo­pher in De­cem­ber 2023, could not ap­ply to cit­i­zens, who were grant­ed FULs be­fore the Firearms Act was passed by Par­lia­ment in 2004. 

The out­come of the case brought by busi­ness­man Toweek Ali, of the Firearms Train­ing In­sti­tute, and a group of FUL hold­ers, is al­so ex­pect­ed to af­fect thou­sands of FUL hold­ers who were not in­volved in the lit­i­ga­tion. 

Ac­cord­ing to the ev­i­dence, the 2004 leg­is­la­tion sought to in­tro­duce a pol­i­cy re­quir­ing le­gal firearm hold­ers to re­new their FULs every three years. 

De­spite the pas­sage of the leg­is­la­tion, the pol­i­cy was not im­ple­ment­ed by suc­ces­sive po­lice com­mis­sion­ers be­fore Hare­wood-Christo­pher is­sued a no­tice to all FUL hold­ers in late 2023.

FUL hold­ers were in­formed the dead­line for pay­ment of their an­nu­al $300 fee was April, last year, and that the three-year re­new­al fee was set at $500.

They were al­so in­formed that they were re­quired to sub­mit a med­ical cer­tifi­cate and a cer­tifi­cate of com­pe­tence from a cer­ti­fied firearms in­struc­tor and that fail­ure to com­ply could re­sult in the re­vo­ca­tion of their FULs. 

The group and Ali's wife Nyree Al­fon­so, who was not a claimant in the case but was part of the le­gal team that rep­re­sent­ed the group, claimed that the pol­i­cy could not ap­ply to cit­i­zens who held the FULs be­fore the leg­is­la­tion was passed. 

They point­ed to Sec­tion 17(6) of the Firearms Act, which states that FULs held by a per­son pri­or to the op­er­a­tional­i­sa­tion of the leg­is­la­tion would re­main valid af­ter such. 

In de­ter­min­ing the law­suit, Jus­tice Rahim ruled that Hare­wood-Christo­pher did not state that all FULs, re­gard­less of when they were is­sued, were in­valid due to non-re­new­al by hold­ers be­tween 2004 and 2024. 

"The COP formed the view that all FUL hold­ers may have been non-com­pli­ant with the law and she sought to cor­rect same," Jus­tice Rahim said. 

"This is quite a dif­fer­ent thing from say­ing that the COP de­cid­ed that FULs were in­valid as a re­sult of non-pay­ment and the court so finds," he added. 

Jus­tice Rahim stat­ed that the leg­isla­tive pro­vi­sions could not ap­ply retroac­tive­ly to pre-2004 FUL hold­ers as such could af­fect their con­sti­tu­tion­al right to prop­er­ty. 

While Jus­tice Rahim com­mend­ed Hare­wood-Christo­pher for seek­ing to rec­ti­fy her pre­de­ces­sors' fail­ure to op­er­a­tionalise the leg­is­la­tion, he crit­i­cised her for fail­ing to draw the dis­tinc­tion on whom the leg­is­la­tion should ap­ply. 

He sug­gest­ed that she should have con­sult­ed with for­mer CoPs to de­ter­mine the rea­sons for their fail­ure or sought ju­di­cial de­ter­mi­na­tion of the is­sue through the At­tor­ney Gen­er­al's Of­fice. 

"But some­how the CoP em­ployed some oth­er process that ap­pears to not have been ef­fec­tive in re­solv­ing the is­sue," he said. 

Deal­ing specif­i­cal­ly with hold­ers of FULs is­sued af­ter the leg­is­la­tion, in­clud­ing two who joined the case with Ali and the long-stand­ing FUL hold­ers, Jus­tice Rahim not­ed that they had a le­git­i­mate ex­pec­ta­tion that their FULs would re­main valid pro­vid­ed they paid the an­nu­al fee and com­plied with oth­er re­quire­ments be­sides the re­new­al fee. 

Stat­ing that they had good rea­son for re­ly­ing on their ex­pec­ta­tion, Jus­tice Rahim said: "The good rea­son is of course that the promise is be­ing made by the pub­lic au­thor­i­ty re­spon­si­ble for not on­ly re­ceiv­ing the li­cence pay­ment and re­new­ing the li­cences but al­so the pub­lic au­thor­i­ty re­spon­si­ble for en­forc­ing the law."

"In the re­spect­ful view of the court, there could be no greater rea­son to find that the promise was a re­li­able one," he added. 

How­ev­er, he ruled that the po­lice com­mis­sion­er should not be stopped from pro­cess­ing re­newals for post-2004 FUL hold­ers. 

"The court is not sat­is­fied that hav­ing re­gard to the na­ture of the en­act­ment, the pur­pose of the pro­vi­sion and the so­cial pol­i­cy be­hind it that the CoP should be stopped from ap­ply­ing Sec­tion 17(6) in a ful­some man­ner," he said. 

While Jus­tice Rahim dealt with the re­new­al re­quire­ment and the as­so­ci­at­ed fee, he did not weigh in on the need for the cer­tifi­cates from a doc­tor and a firearm in­struc­tor, which are al­so re­quired for first grant ap­pli­ca­tions. He not­ed that there is a sep­a­rate law­suit over the re­quired qual­i­fi­ca­tions of firearm in­struc­tors is­su­ing cer­tifi­cates.

In a brief tele­phone in­ter­view, Al­fon­so said she was pleased with the out­come.

She sought to high­light the fact that Jus­tice Rahim ruled that FUL hold­ers could not be fault­ed for fail­ing to re­new their FULs be­fore the pro­ce­dure was im­ple­ment­ed. 

"The most in­ter­est­ing and ben­e­fi­cial part of the judg­ment is the fact that no FUL hold­er is not go­ing to be sub­ject­ed to pros­e­cu­tion for non-re­new­al," Al­fon­so said. 

She said that she hoped that the is­sue would not re­sult in lit­i­ga­tion but was forced to file the case based on Hare­wood-Christo­pher's re­sponse to her stance. 

"You don't vis­it sanc­tions and penal­ties on per­sons for not abid­ing by some­thing that was not in place. This is when of­fi­cial­dom has over­reach," she said. 

"It is a re­al pity that we had to reach that stage," she added. 

Al­fon­so al­so not­ed that Hare­wood-Christo­pher could not side-step the un­am­bigu­ous pro­vi­sions of the leg­is­la­tion. 

"The fact of the mat­ter is you must ap­ply the law the way you found it," she said. 

How­ev­er, she ad­mit­ted some reser­va­tions with the out­come, which dif­fer­en­ti­at­ed be­tween law­ful firearm hold­ers based on when their FUL was is­sued. 

"Does it make sense that there are two dif­fer­ent regimes for pre-2004 and post-2004? Prob­a­bly not, but I am not in Par­lia­ment," she said. 

Ali and the FUL hold­ers were rep­re­sent­ed by Anand Be­har­ry­lal, KC; Kiel Tak­lals­ingh; Asif Ho­sein-Shah and Al­fon­so. 

The Of­fice of the Po­lice Com­mis­sion­er was rep­re­sent­ed by Rishi Dass, SC; Vanes­sa Gopaul and Anya Ra­mute-Mo­han.