Former top cop ordered to repay renewal fees to 4 FUL holders

IN A RULING that could impact hundreds of licensed firearm holders across the country, a High Court judge has deemed then police commissioner Erla Harewood-Christopher's new policy for renewing firearm user’s licences (FULs), obtained before 2004, as unlawful.

Further, the judge also ruled that all FULs issued before May 31, 2004 as remaining valid.

Justice Ricky Rahim’s ruling on March 26 follows a legal challenge by six FUL holders, among them firearm dealer Towfeek Ali, against a decision by the CoP to impose renewal fees and additional requirements. The six challenged the new policy for renewing FULs as unlawful.

What this means for FUL holders who had their licences before 2004, do not have to pay the $500 renewal fee every three years and will only be required to pay $300 per year.Those who received their licences after 2004, are required to pay $500 every three years and $300 each year.

In their claim, Ali and the others said the decision by the CoP potentially exposed thousands of FUL holders to criminal prosecution.

It also complained that the new system, announced in January 2024, was impossible and difficult to comply with.

In his ruling, Rahim declared that the FULs issued before May 2004 had not expired and Harewood-Christopher’s decision requiring renewal fees from FUL holders before 2004 was unlawful.

He ordered the C8P to refund payments made by the affected claimants.

Rahim also held that the failure to establish a proper renewal system since 2004 was inconsistent with the Firearms Act.

The commissioner had previously assured the court that no charges would be filed against FUL holders for non-renewal pending the case’s outcome.

At the start of 2024, the CoP had announced that all FUL holders had to renew their permits, including those who were issued FULs before 2004, when the Firearms Act was amended.

A letter from the CoP conveyed that FUL holders were in “deliberate non-compliance with the renewal regime.”

The application also said that in 2004, Parliament introduced a renewal process for FUL holders to renew their licences every three years,

However, the six said the process provided no guidance on how this was to be done. The application further contended that for the first time, the CoP put forward the position that those who had failed to renew their FULs since 2004 no longer held valid licences.

“The effect of this finding is that the Firearms Act makes it a criminal offence to possess firearms without a valid licence and the intended defendant’s position would make thousands of persons liable to criminal prosecution including security guards assigned to protect government buildings/assets as well as private property.”

The application also said if those FULs have been deemed invalid since 2007, then holders of licences before 2004, and those who received permits before 2021, would now need to make fresh applications, since they cannot renew something that has become invalid.

However, the six contended that section 17(6) of the Firearms (Amendment) Act states that FULs granted before the passage of the legislation in 2004 will remain valid unless terminated or revoked.

In his ruling, Rahim said, “The change in the legislative framework when the words of the sections are given their natural and ordinary meaning could only have referred to those licences that were to be granted from the operative date.

“To give such meaning to the sections is a matter for the Parliament and not for the CoP.”

He held that all FULs issued after the 2004 amendment would have expired three years after, and disagreed with the CoP’s position that “validity can only be re-conferred by a fresh application for a FUL.

“It is therefore clear in the view of the court that so long as the annual fee was paid, no licence issued prior to the amendment would expire in law after the passage of a period of time. Of course, the power nonetheless resided with the COP as it still does to revoke any such licence.

In his ruling, Rahim noted there was a “manifest failure to make arrangements for the collection of and the renewal of FULs for almost 20 years.

“This failure must lie at the feet of the several CoPs over the years.”

Rahim said while this failure could not give rise to a legitimate expectation by FUL holders, “In this case, there was a clear, unambiguous promise not to enforce the law as to the invalidity of non-renewed licences and also upon payment of the fees and production of the required documents that the licence would be renewed once the CoP was satisfied that the discretion to renew should be exercised.”

In deciding the case on the annual fee, Rahim said after the 2004 amendment, no fee for renewals was prescribed or set in law until the 2022 Finance Act set such a fee.

“This, of course, may have been the reason why there was no compliance with the 2004 amendment for so many years but this has not been stated on the evidence to have been the reason. If this was in fact the reason, it was a misinformed or ill-advised one, bearing in mind the fact that the amendment was brought into operation and nothing prevented renewal without payment of a fee.”

He said as it now stands, fees are payable by those whose FULs were not issued before the 2004 amendment for renewal at $500 every three years once the CoP is satisfied all the requirements are met and $300 annually.

On the type of forms to be used for renewals, Rahim said nothing prevents the CoP from using the first application forms but ideally there should be separate forms.

Ali and the others were represented by Anand Beharrylal, KC, Kiel Taklalsingh, Nyree Alfonso and Asif Hosein-Shah. Rishi Dass, SC, Vanessa Gopaul and Anya Ramute-Mohan represented the CoP.