Refusals and revocations of authorisations

Refusals

• Regulation 19 of ER2014 requires a chief officer of police not to issue an explosives certificate to a person if the chief officer of police is satisfied that the person is of unsound mind or intemperate habit

The regulation also requires a chief officer of police to refuse an explosives certificate unless they are satisfied that:

• the person has a good reason for acquiring the relevant explosives
• the person is a responsible person who may be permitted to acquire the relevant explosives without danger to public safety or peace
• the person will take all reasonable precautions to prevent access to the relevant explosives by unauthorised persons and to prevent loss of those explosives
• the person (including where the person is a body corporate, no director or secretary of the body corporate, and where the person is a Scottish firm, no partner in the firm) is not a prohibited person
• where the application relates only to acquisition of relevant explosives, and it is not reasonably practicable for the applicant to be an occupier of a site requiring a licence, the explosives will not be kept or they are kept at a licensed site within the terms of the licence
• where the application is to keep, that the applicant will ensure that the explosives are kept at a site that has a licence to store

Revocations

Regulation 21 of ER2014 allows a chief officer of police to revoke an explosives certificate they have previously issued, at any time, if they are satisfied that the holder was not, when the certificate was issued, or is no longer  a fit person.

The regulation also requires a chief officer of police to revoke an explosives certificate they have previously issued, at any time, if they are satisfied that the holder:

• did not meet the conditions of regulation 19 when the explosives certificate was issued
• no longer meets the conditions of regulation 19

If an explosives certificate is revoked the holder of a certificate must surrender it to the chief officer of police who issued it immediately after the notice of revocation has been served.

Appeals

Regulation 22 allows a person aggrieved by the decision of a chief officer of police that

• refuses an application for an explosives certificate
• revokes an existing explosives certificate
• to make an appeal to the Crown Court, or, in Scotland, to the Sheriff

Any application to appeal has to be made within 21 days of receiving notice of the chief officer of police's decision to refuse or revoke the explosives certificate.

Refusals

Regulation 20 requires a licensing authority to refuse an application for a licence, or to refuse to issue a draft licence (where an application covered by the assent requirements of the regulations has been made to HSE or ONR) where the licensing authority is of the opinion that:

• the proposed site or, within it, any place where the manufacture or storage of explosives is proposed to take place is unsuitable for that manufacture or storage or
• the applicant is not a fit person to manufacture or store explosives

The Regulation also makes provision for refusals of renewals, transfers and variations of licences.

Where a licensing authority proposes to refuse an application for a licence, a renewal ,a variation or transfer of a licence it must, before taking any action, notify the applicant of its proposed course of action. The licensing authority must give the applicant the opportunity of making representations about it. The representations may be made in writing, or both in writing and orally, to the licensing authority within a period of 28 days from the date of the notification.

If the licensing authority decides to refuse the application, it must provide the applicant with written reasons for its decision.

Revocations

Regulation 23 allows the licensing authority which grants a licence to, revoke that licence:

• where there has been a change in circumstances such that the site or, within it, any place in which explosives are manufactured or stored which the licence relates to is no longer suitable for that manufacture or storage
• where it appears to the licensing authority on information obtained by it after the grant of the licence that the licensee is not a fit person to store or manufacture explosives
• by agreement with the licensee

A person whose licence is revoked must ensure that all explosives are removed from a site as soon as is practicable after revocation of the site's licence and that either:

• the explosives are deposited at a site which is the subject of a licence which permits any storage resulting from that depositing
• or suitable arrangements are made for those explosives to be disposed of

They must also ensure that the licence is returned to the licensing authority within 28 days of the date that the revocation takes effect (to be determined by the licensing authority).

Where a licensing authority proposes to revoke a licence, it must, before taking any action, notify the applicant of its proposed course of action It must give the applicant the opportunity of making representations about it. The representations may be made in writing, or both in writing and orally to the licensing authority , within a period of 28 days from the date of the notification.

If the local authority decides to revoke the application, it must provide the applicant with written reasons for its decision.

Appeals

You can appeal a decision by a licensing authority to refuse or revoke a licence under section 44 of the Health and Safety at Work etc. Act 1974.

Appeals should be made to the Secretary of State (SoS) for Work and Pensions, sent to the Department for Work and Pensions (DWP), 79 Whitehall, London, SW1A 2NS and include the following:

• a declaration that the appeal is being made under the provisions of section 44 of the Health and Safety at Work etc. Act 1974
• the appellant’s name and address
• the specific decision against which the appeal is made
• the name and address and other relevant contact details of the licensing authority
• the grounds for the appeal

Unsuitable site

In making its decision on whether or not a site was suitable a licensing authority would be expected to consider each site on its own merits.

A licensing authority's decision might for example be due to:

• bulk storage of flammable substances at or in the immediate area of a site so that there would be a substantial risk that an explosion at the store would cause a fire in the flammables, or a fire involving the flammables could spread to an explosives building
• the presence of hazardous substances at or in the immediate area of the site so that there is a significant risk that an explosion at the site would cause the release of hazardous substances into the wider area
• proximity of telecommunications transmitters where there is a significant risk that the electromagnetic energy from the transmitters could initiate an explosion in the explosives
• the presence of methane at the site or at an adjoining site (for example from a landfill site) so that there is a significant risk that a fire or explosion involving methane could spread to the explosives
• the presence at or in the immediate area of the site of gas pipelines or high-voltage electricity supply so that there would be a significant risk that an explosion involving the explosives would result in significant 'knock-on' consequences
• the presence of vulnerable sections of the population (young children, the sick or elderly) in the immediate area of the site (for example, if a building housing a school, hospital or old people's home were immediately adjoining an explosives site) even if the relevant separation distance requirements can be met

The licensing authority may also refuse a licence if it believes that the storage would present an unacceptable risk to people living in adjoining residential premises. Further information on the storage of explosives in places that adjoining residential premises can be found in subsector guidance.

Not a fit person

The regulations require licensing authorities to refuse licences and allows them to revoke licences when they are of the opinion that someone is not a fit person to manufacture or store explosives.

In general a person will not be a fit person when they have either:

• demonstrated an inability to comply with the permissioning requirements
• otherwise shown themselves to be unfit to hold a licence

The concept of an unfit person implies that the licensing authority does not have confidence in the individual's willingness or ability to abide by the Regulations or the licence conditions, ie it has grounds for believing that there is a significant risk of a breach.

Inability to work to the standard expected

The fact that a person has committed a breach of the licence or the Regulations or other health and safety legislation is not in itself necessarily grounds for regarding them as unfit to hold a licence.

This decision will always need to be taken on a case-by-case basis, taking into account the circumstances of each individual case. However, examples of circumstances where the licensing authority might take this view are:

• a serious breach where there was evidence of a deliberate disregard of the Regulations, health and safety legislation and/or licence conditions
• a breach following a previous warning (including an improvement notice or prohibition notice)

In cases where breaches are due to incompetence, rather than to deliberate disregard of the law or of previous warnings, it may be more appropriate for the licensing authority to take enforcement action (such as the issue of improvement or prohibition notices), in order to give the person the opportunity to comply with legal requirements.

Clearly, if the person then fails to comply with enforcement action and/or continues to demonstrate incompetence, the licensing authority may then conclude that he or she is not a fit person and, consequently, refusal or revocation of the licence may be appropriate.

Otherwise unfit to hold a licence

In considering whether a person is fit or not, the licensing authority will be primarily concerned to consider whether it has evidence to give it reasonable grounds for believing that the person cannot be relied upon to manufacture or store the explosives:

• in compliance with the terms of their licence
• without risk to public safety

In considering this, the licensing authority will be primarily looking at evidence of breaches of the licence or of other relevant permissions or legislation.

Examples of behaviours that might identify a person as being unfit to hold a licence (or a corporate body when the controlling mind of that body is considered) would include:

• the supply of relevant explosives to people who do not have an explosives certificate or who are prohibited persons
• breaches of the Pyrotechnic (Articles) Safety Regulations 2010 in relation to eg:
  • age related sales
  • the supply of articles requiring specialist knowledge to people who do not meet those requirements.
  • dishonestly representing themselves as a person of specialist knowledge
• breaches of the Fireworks Regulations 2004 in relation to the requirement for a licence to expose fireworks for supply outside the recognised sales periods
• a history of criminal offences relating to dishonesty
• a history of criminal offences relating to the supply of:
  • age related products
  • controlled substances
• a history of criminal offences relating to offences against the person
• a history of criminal offences relating to firearms
• a history of criminal offences related to terrorism
• a history of criminal offences that demonstrate a lack of regard for peoples safety or the rule of law.

Criminal convictions would not be expected to automatically disqualify someone from being granted a licence. The licensing authority will only consider whether:

• on the evidence in its possession
• in the circumstances of any breach or conviction
• it has any reason to believe that the applicant is not a fit person

Licensing authorities should only take account of convictions that are not 'spent' for the purposes of the Rehabilitation of Offenders Act 1974.