Are the police carrying pepper spray illegally?
Today, at a peaceful UK Uncut demonstration at a central London branch of Boots, a number of demonstrators were attacked by police officers deploying a lachrymatory agent which was either pepper spray or CS gas.
Both weapons are subject to a ‘general prohibition’ under Section 5 of the Firearms Act 1968. The Section states that such weapons may only be purchased, acquired, possessed or sold by persons who have received specific authority to do so from the Defence Council, the senior internal committee of the Ministry of Defence.
A quick web search established that others have sought copied of this authorisation through Freedom of Information legislation but have been unsuccessful. I made my own, asking the Met (using the form here):
Please provide me with:
a) a copy of the Defence Council authorisation issued to the Metropolitan Police Service allowing it to acquire and possess weapons otherwise prohibited by Section 5 of the Firearms Act 1968,
or, if the MPS hold no such authorisation,
b) any MPS policy document, legal advice, internal communication, or communication with the Home Office, Metropolitan Police Authority or Defence Council concerning the reasons why no Defence Council authorisation is required.
Yours with thanks,
…and the MoD (using the form here):
Please provide me with a copy of the currently valid Defence Council authorisation permitting the Metropolitan Police Service to acquire and possess weapons otherwise prohibited by Section 5 of the Firearms Act 1968.
Yours with thanks,
We’ll see where we get with these inquiries. In the meantime, let’s look at the Met’s previous excuse, issued in a Home Office FoI response to a D Blackman in 2009:
The Home Office do not issue section 5 authorities to the police to possess prohibited weapons (this includes CS sprays). Under the terms of section 54 of the Firearms Act 1968, persons in the service of the Crown acting in their capacity as such are exempt from the provisions of section 5 of the Act.
Let’s leave aside the point that it is not and has never been in the competence of the Home Office to issue Section 5 authorities to anyone, and look at Section 54 of the Act. There are two subsections of interest. The first deals with the exemptions applying to the “persons in the service of the Crown,” the Home Office mentions, or “of Her Majesty,” as the Act puts it:
Sections 1, 2, 7 to 13 and 26A to 32 of this Act apply, subject to the modifications specified in subsection (2) of this section, to persons in the service of Her Majesty in their capacity as such so far as those provisions relate to the purchase and acquisition, but not so far as they relate to the possession, of firearms.
This means that individual police officers, soldiers and so on do not need firearms certificates in order to carry their government-issued guns. The modifications in subsection (2) have to do with specific situations where a servicemember without a certificate can still “purchase or acquire” a weapon for use in public service – given we’re interested in possession, these don’t affect our question.
The problem with this as an answer to my and D Blackman’s question is right at the start of the paragraph – it explicitly does not apply to Section 5. So let’s look at the rest of Section 54 for a something that does apply to Section 5. There is only one subsection that applies to Section 5, and it’s this:
3A) An appropriately authorised person who is either a member of the British Transport Police Force or an associated civilian employee does not commit any offence under this Act by reason of having in his possession, or purchasing or acquiring, for use by that Force anything which is—
(a) a prohibited weapon by virtue of paragraph (b) of section 5(1) of this Act; or
(b) ammunition containing or designed or adapted to contain any such noxious thing as is mentioned in that paragraph.
The British Transport Police, and the British Transport Police only, are the beneficiaries of the exemption claimed by the Home Office on behalf of all police forces.
Now I am not a lawyer, and it is entirely possible I’ve overlooked something here – please let me know in the comments if so. But as things stand it appears that the officers at Boots today were committing a crime by even posessing pepper spray or CS gas, let alone using it to commit common assault against peaceful protesters.
Update: Thanks to a commenter below, I’ve learned that Acts of Parliament don’t apply to the Crown, a constitutional WTF to rival corporate personhood. More here.