The king of the cross is hit with a firearm prohibition order

The king of the cross is hit with a firearm prohibition order

THE KING OF THE CROSS IS HIT WITH A FIREARM PROHIBITION ORDER

By National Criminal Lawyers

 

In 2013, legislation came into effect to provide police with more powers to search for firearms, ammunition, or firearm components in homes, cars, and even on an individual person without a warrant, should that person be subject to a Firearm Prohibition Order (FPO).

Upon introduction of the law the then New South Wales Police Commissioner Andrew Scipione is on the record stating that:

Police (now have) the right to stop, to search, to enter premises to ensure that the subjects don’t have a firearm, they haven’t ammunition or parts of a firearm.

A very angry king of the Cross, Mr John Ibrahim has experienced the problems of a FPO first hand and now has demanded his lawyer to oppose the order handed to him after it resulted a confiscation of $65,000 in cash from his luxury Sydney property. To read the full article please click here.

What is a firearms prohibition order (FPO)?

An FPO is an order that prohibits a person from bearing a firearm, firearm parts, or ammunition.

A police officer of any rank, or from any Command, can nominate a subject for an FPO.

The only test that needs to be satisfied for aFPO is that it is in the public interest to issue the same. This means there is no set criteria for the making of an FPO beyond the need for public safety. Those who are subject to FPOs are most commonly those with a significant criminal history; those with organized crime links; or persons with a history of firearm possession who suffer from any psychiatric illness.

At National Criminal Lawyers we see the FPO process as yet another example of the watering down of Judicial use of the law in favour of a more administrative effect.

The Law

Section 74A of the Firearms Act 1996 (NSW) means a police officer may:

(a) Detain a person who is subject to a firearm prohibition order;
(b) Enter any premises occupied by or under the control or management of such a person; or
(c) Stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person, and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearm, firearm parts or ammunition.

The broad powers of FPO

Given the wide powers conferred the effect of these laws can be strenuous for a person subjected to the order and many are concerned about how the unchecked powers given to police are being enforced. For example, the criteria for issuing an FPO do not necessarily rest on a person even owning or having a firearm or even previously being convicted of a firearm related offence. Rather It allows for issuance of an FPO simply on the basis of untested police surveillance/intelligence, or allegations of links however weak to an organised criminal group. The test is so wide that even a person presumed to have been involved in serious criminal activity can be made the subject of the order.

What happens once a person is subject to the FPO?

Once a person is subject to an FPO, the police have the authority to undertake searches at any time without warrant. The police normal safeguards involved in the exercise of police search powers such as a ‘reasonable suspicion’ do not apply. Police can even simply search just to check that an individual is abiding by the terms of an FPO. The issue that therefore arises is that FPO may not necessarily be used to target the said purpose of the legislation which is to deal with the issue of firearm-related offences.

Right of Review

Subjecting a person to a Firearm Prohibition Order is an administrative not judicial decision, made without reference to a Court or any judicial oversight. Instead after being served with a Firearm Prohibition Order, an individual has 28 days to request that the NSW Police Force review the decision. This brings up the old Latin phrase “Quiscustodietipsos custodes?” which literally translates to “Who will guard the guards themselves?”

Long-Term Ramifications

The NSW Ombudsman’s Office has conducted a review of the search powers provided to police under the law and noted in its report several issues of concern.

Firstly, the arbitrary nature of how an FPO can be made is of concern. There is no judicial oversight and possible potential of police abuse of civil rights.

Secondly FPO’s can continue indefinitely, regardless of any positive change demonstrated by the subject of the FPO.

Thirdly FPO can provide police with the power to make personal searches based on old or faulty intelligence, or essentially for no reason at all. Also any person in the company of a person subject to an FPO may also be searched without sufficient cause. This is a significant increase of police powers.

Statistics

227 people who were not the subject of an FPO were searched simply because they were in the company of FPO subjects at the time they were searched. While such searched should be conducted in accordance with the guidelines set out in the Law Enforcement Powers and Responsibilities Act 2002 (NSW) having aFPO means that police can avoid the usual rigors of the law.

WHY NATIONAL CRIMINAL LAWYERS?

If you have been charged with a firearm offence or are subject to aFPO or know someone who is, the team at National Criminal Lawyers can assist.

With respect to FPOs we can write requests for review to the police and in certain cases may be able to argue in the NSW Administrative Decisions Tribunal that the order be lifted.

Furthermore, if you are charged with a firearm offence, we are the experts in either beating or having the charges withdrawn AND/OR obtaining the least restrictive penalty available. In our representation we can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

Finally, National Criminal Lawyers know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights.

If you have been charged with any offence or issued with a FPO our Team and National Criminal Lawyers are well versed and specialists in reviews and/or having charges either withdrawn and otherwise achieving favorable outcomes. Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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