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The role of the criminal justice system in excluding unfit persons from firearm ownership

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Other firearm licences checked, but checks on possession not always done ' ... Analysis of Criminal Records. 376 SAP 69 files perused ... – PowerPoint PPT presentation

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Title: The role of the criminal justice system in excluding unfit persons from firearm ownership


1
The role of the criminal justice system in
excluding unfit persons from firearm ownership
  •  Institute for Human Rights
  •   Criminal Justice Studies

2
The legal framework
  • Old Arms and Ammunition Act still largely in
    effect
  • Firearm licences required by law, issued by the
    SAPS
  • Declaration of unfitness in terms of s11
  • Automatic unfitness in terms of s12(1)
  • Discretionary unfitness in terms of s12(2)
  • Case law

3
Methodology
  • Research in 4 provinces, rural and urban 4
    provinces cover 72 of all applications
  • 92 interviews or focus group sessions with
    magistrates, prosecutors and police
  • 376 records from Criminal Records Centre perused
    and analysed
  • 250 firearm licence applications perused and
    analysed
  • Two cases observed

4
National Firearms Data
  • 3 654 434 firearms registered to individuals as
    at October 2002
  • 81 242 registered in names of institutions
  • 103 056 applications approved Jan-Oct 2002
  • 5 453 applications refused Jan-Oct 2002
  • Only 541 successful s11 applications

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Section 11
  • 49 of all successful applications in Western
    Cape January to October 2002
  • 26 in Gauteng
  • Fewer than 10 each in KZN, Limpopo, Northern Cape
  • None in Mpumulanga
  • Importance raised since case of Van Duivenboden

10
Police Findings on application procedure
  • Safes some confusion regarding specifications
  • Background interviews face-to- face only with
    partners, depends on other information whether
    conducted
  • Mental and emotional stability, propensity to
    violence police find difficult to measure
  • Domestic Violence register inconsistency
  • Alcohol and drugs difficulties

11
Police Findings cont.
  • Stated refusal criteria
  • Absence of or incorrect safe
  • Inadequate overall security
  • Provision of false information
  • Previous convictions
  • Prior declaration of unfitness

12
Police Other Application Factors
  • Unemployment not a factor
  • Other firearm licences checked, but checks on
    possession not always done
  • Competency certificates

13
Police and s12
  • Police perception that courts are not applying
    s12
  • Confusing term no order made
  • Unnecessary s11 hearings held

14
Magistrates
  • Reasons given by accused why they should not be
    declared unfit
  • Need firearm for
  • For work
  • For self-protection
  • To protect their business

15
Magistrates
  • Accused rarely contest declaration
  • Most accused commit crimes with unlicenced
    firearms
  • Magistrates rarely overturn automatic declaration

16
Magistrates s12
  • S12(1) automatic declaration - No order made
    inconsistency
  • S12(2) discretionary declaration only with
    crimes involving violence, but some said would
    not come to mind if firearm not involved in the
    matter

17
Prosecutors
  • Prosecutors say seldom have endorsement on docket
    from police
  • Is magistrates duty to raise declaration of
    unfitness with crimes involving firearm
  • With crimes not involving a firearm, would raise
    the issue if degree of violence high but some
    said this seldom happened
  • Tendency to wait for detective or magistrate to
    raise the issue

18
Analysis of Criminal Records
  • 376 SAP 69 files perused
  • In 87.9 records magistrates did not state on SAP
    69 whether or not the accused had been declared
    unfit to possess a firearm - left blank
  • In only 6.3 of cases in the sample did
    magistrates expressly state that the accused had
    been declared unfit

19
Statistical Analysis
  • CFR receives 14 000 applications each month on
    average
  • 250 Firearm licence applications randomly
    selected
  • Of these, 124 approved by CFR

20
Age of Applicant
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Conclusions
  • Ultimate responsibility for approving and
    declining firearm applications rests with the CFR
  • Prosecutors appear to lack initiative regarding
    declarations of unfitness
  • Magistrates tend to consider declarations of
    unfitness primarily where a firearm is involved
  • No order made creates confusion in respect of
    automatic declarations

35
Conclusions
  • Magistrates do not routinely declare people unfit
  • Background checks by local police are as thorough
    as is possible given constraints relating to
    resources
  • Police are conducting more s11 than before
  • The Firearms Appeals Board seems to lift
    declarations of unfitness routinely

36
Recommendations
  • Re-training in respect of automatic declarations
    of unfitness
  • Standardise manuals and procedures
  • Awareness of Domestic Violence Act
  • Link police and court systems regarding
    protection orders
  • Prosecutors give clear instructions to
    investigating officers regarding confiscation of
    firearm
  • Police interview partners of applicant
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