The King (on the appliation of Commissioner of the Police of the Metropolis) v Crown Court at Kingston-Upon-Thames
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Irwin |
| Judgment Date | 31 July 2023 |
| Neutral Citation | [2023] EWHC 1938 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1520/2022 |
and
[2023] EWHC 1938 (Admin)
Dame Victoria Sharp DBE,
PRESIDENT OF THE KING'S BENCH DIVISION
Sir Stephen Irwin
Case No: CO/1520/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Charlotte Ventham, Remi Reichhold and Conor Monighan (instructed by Tracy Wisbey and Ruby Wallace, Directorate of Legal Services) for the Claimant
Nicholas Doherty for the Interested Party
Hearing date: 13 July 2023
HTML VERSION OF JUDGMENT APPROVED
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This is a judicial review brought by the Commissioner of the Police of the Metropolis (“the Commissioner”) challenging the preliminary ruling dated 10 February 2022 of HHJ Barklem and two lay justices at Kingston-Upon-Thames Crown Court. The Commissioner sought permission to rely on sensitive material in Closed Material Proceedings (CMP) in the course of an appeal against the revocation of a shotgun certificate. The Crown Court concluded that there was no power or jurisdiction to permit a CMP in such an appeal.
The sole issue before the Divisional Court is whether the Crown Court is permitted to have recourse to a CMP when hearing a firearms appeal under s.44 of the Firearms Act 1968 (the Act).
It is agreed between the parties that the issue falls to be decided as a matter of law and without evidence being advanced.
The Defendant does not appear and makes no submissions.
SUMMARY OF THE FACTS AND PROCEDURAL HISTORY
The Interested Party (IP), Trevor Scott, held a shotgun certificate until 5 August 2019. On 1 May 2019 and then on 30 July 2019, police officers visited the IP at home. The Claimant's Statement of Fact and Grounds recite a number of matters of fact said to arise from those visits. Since no evidence has been heard, and therefore tested, those matters are to be treated for present purposes as background, and an indication of some of the evidence which would be led in a substantive appeal. On both occasions, officers noted that the IP was aggressive towards officers, and was controlling over his partner. All officers expressed concern about the IP being in possession of a shotgun.
Police Sergeant Jason Przedborski is an experienced officer, with 28 years' service at the time he made his witness statement in April 2022. He is one of six police sergeants in the Metropolitan Police Service Firearms Enquiry Team, holding the delegated authority of the Commissioner to make decisions on firearms and shotgun matters under Part 2 of the Act. In the period before 5 August 2019, PS Przedborski became aware of sensitive information, disclosure of which, he considered, would cause damage to the public interest. As he puts it, “it is not possible for me to say anything about it without potentially disclosing its nature.” In the light of the sensitive material, PS Przedborski decided that Mr Scott could not be permitted to possess a shotgun without danger to public safety, and on 5 August 2019 wrote to the IP informing him of the decision to revoke his shot gun certificate, with immediate effect. As Sergeant Przedborski makes clear, the sensitive material “played a very significant role in my decision”.
The IP appealed against the revocation to the Kingston-upon-Thames Crown Court. He was served with the material based on which the decision was taken, in a redacted form to avoid revelation of the sensitive material. It is agreed between the parties that this was the correct procedure, and that such an appeal is by way of re-hearing. Fresh material may be introduced at this stage above and beyond that which was available to the Commissioner at the time of the decision to revoke.
At a preliminary hearing on 14/01/2022, before HHJ Barklem and justices, an application was made by the claimant to permit a procedure similar to a ‘closed material procedure’ (CMP) whereby the sensitive material, withheld from the appellant, might be relied upon by the claimant in resisting the appeal. It was accepted by the claimant that there was no express statutory basis for the procedure in the Firearms Act 1968. The claimant argued that, by reference to the statutory guidance under which the Claimant is obliged to operate, and with reference to authority, such a course was open to the court.
On 14 February 2022, HHJ Barklem, who had sat with two lay justices, handed down a judgment rejecting the application. I consider his reasoning below.
On 29 April 2022, the Commissioner lodged his application for judicial review. There appears then to have been something of a hiatus in the case. The IP lodged summary Grounds for contesting the claim on 16 February 2023. No point is taken on time.
THE LEGISLATIVE SCHEME
The Act distinguishes a shot gun, as defined by S.1(3)(a), from other firearms. S. 2(1) of the Act makes it an offence to possess a shotgun without “holding a certificate under this Act authorising him to possess shot guns.” Responsibility for the issue and revocation of shotgun certificates lies with the “chief officer of police for the area in which the applicant resides”: section 26A(1) of the Act.
The conditions for grant or renewal of a shotgun certificate, relevant to this case are:
“ 28 Special provisions about shot gun certificates
(1) Subject to subsection (1A) below, a shot gun certificate shall be granted or, as the case may be, renewed by the chief officer of police if he is satisfied that the applicant can be permitted to possess a shot gun without danger to the public safety or to the peace.
(2) (1A) No such certificate shall be granted or renewed if the chief officer of police—
(a) ………………
(b) is satisfied that the applicant does not have a good reason for possessing, purchasing or acquiring one.”
S28A(6) provides that “A person aggrieved by the refusal of a chief officer of police to grant or to renew a certificate under this Act may in accordance with section 44 of this Act appeal against the refusal.”
Revocation of a shot gun certificate is provided for in s30C:
“ 30C Revocation of shot gun certificates.
(1) A shot gun certificate may be revoked by the chief officer of police for the area in which the holder resides if he is satisfied that the holder is prohibited by this Act from possessing a shot gun or cannot be permitted to possess a shot gun without danger to the public safety or to the peace.
(2) A person aggrieved by the revocation of a shot gun certificate may in accordance with section 44 of this Act appeal against the revocation.”
The approach to appeals is laid down in s44:
“ 44 Appeals against police decisions.
(1) An appeal against a decision of a chief officer of police under section 28A… [or]… 30C… of this Act lies—
(a) in England and Wales, to the Crown Court; …
(b)……
(2) An appeal shall be determined on the merits (and not by way of review).
(3) The court …. hearing an appeal may consider any evidence or other matter, whether or not it was available when the decision of the chief officer was taken.
(3A) The court ….. hearing an appeal must have regard to any guidance issued under section 55A that is relevant to the appeal.” (emphasis added)
Guidance may be issued by the Secretary of State as to the exercise of police functions:
“ 55A Guidance as to exercise of police functions
(1) The Secretary of State may issue guidance to chief officers of police as to the exercise of their functions under, or in connection with, this Act.
(2) The Secretary of State may revise any guidance issued under this section.
(3) The Secretary of State must arrange for any guidance issued under this section, and any revision of it, to be published.
(4) A chief officer of police must have regard to any guidance issued under this section.
…………” (emphasis added).
Grounds 3 and 4 really boil down to applications of the central argument in Ground 1. It is wrong to read the phrase Public Interest Immunity narrowly, as employed in the Guidance, when other wording in the same Guidance points so clearly to the need to rely on sensitive material, both in the initial decision and in the appeal before the Court.
The submissions of the IP
It follows from the combined effect of Ss 44 and 55A that the intention of Parliament must be taken to be that both the chief officer and the Court seized of any appeal should pay due regard to the Guidance issued by the Secretary of State.
THE GUIDANCE
Statutory Guidance was issued on 20 October 2021, following extensive consultation. Earlier Guidance had been issued by the Home Office, in similar terms. It follows that the 2021 Guidance had not been issued at the time of the revocation in this case. However, nothing turns on this, since, firstly, it is clear that the process followed by Sergeant Przedborski was in conformity with the 2021 Guidance and secondly, that version of the Guidance was in force at the time of the application in the Crown Court. In the course of the hearing, we were informed that the Guidance has again been revised in February 2023. There is no essential change material to this application, although relevant passages have been revised and extended in some measure. The Guidance covers a wide range of matters designed to assist the chief officer in reaching the relevant decision. Ms Ventham referred us to extended excerpts, as pointing to the requirement on the Chief Officer to look widely at intelligence, and at information from all possible sources, far beyond what would be admissible as evidence in ordinary court proceedings, criminal or...
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