England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
Neutral Citation Number: [1998] EWHC Admin 390
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		2nd April 1998

LORD JUSTICE MAY: This is an appeal by way of Case Stated from His Honour Judge Morrison sitting at the Derby Crown Court. It arises out of a two day hearing in January of this year. The participants were Arthur Newton and Albert Goodman and the Chief Constable of Derbyshire.

The Firearms Amendment Act 1997 was passed in order to place the strictest limitations on the possession of small firearms and, in particular, handguns. The broad effect of section 1 of that Act is to prohibit the possession of such firearms except in very limited circumstances.

The prohibition applies to handguns with a calibre greater that .22, and the particular limited exception with which this case was concerned was that in section 3 of the 1997 Act. That provided that authority could be given by means of a certificate for a larger handgun, if it was subject to a condition that it was only to be used in connection with the humane killing of animals. The Act received the Royal assent in February 1997 and came into force on 1st July 1997.

The two respondents to this appeal, Mr Newton and

Mr Goodman are gentlemen who have been concerned with and no doubt enjoyed the use of a number of firearms perfectly legitimately for a very long time. Before the 1997 Act came into force, they used some of their firearms for target practice and other sports, and they also engaged in a semi-professional way in helping people who were hunting deer particular in Scotland. The Respondents gave evidence before the judge (which he accepted) that they had for a long time helped by killing wounded deer in a humane way when the occasion arose. They had apparently used rifles for that purpose, having reached the conclusion that in the climate before the 1997 Act they would never get a certificate for a large bore pistol for that purpose.

But when the 1997 Act was enacted, they noticed the exception in section 3 and applied to the Chief Constable of Derbyshire for certificates for use of larger handguns for the humane killing of animals, in their cases, deer.

In April and May 1997, in the period between the Act receiving the Royal assent and it coming into force, they were granted certificates to that effect.

When the Act came into force, the Chief Constable, so we are told, received advice from certain quarters including the Home Office to the effect that the exception in section 3 was intended to have a limited purpose which would have excluded Mr Newton and Mr Goodman's use of their firearms. The Chief Constable was led to believe that the section would only apply to veterinary surgeons, the RSPCA and possibly abattoirs, and was not intended to apply to those in Mr Newton and Mr Goodman's situation. Accordingly, the Chief Constable decided to and did revoke their certificates in part, so as to purport to remove from them the authority to use these firearms for those purposes.

It was on appeal from that partial revocation that the matter came before His Honour Judge Morrison in the Derby Crown Court. The contest lasted two days and was no doubt expensive in lawyers fees and other expenses. The contest appears to have been on two fronts. Firstly, there was the question whether section 3 of 1997 Act did indeed preclude the grant of a licence to people in Mr Newton and

Mr Goodman's situation, and the learned judge held that it did not. It was not restricted to the classes of organisations that had been suggested in the Home Office circular, and the learned judge construed the section as meaning what it said. A condition that the relevant firearm was only for use in connection with the humane killing of animals could include, in appropriate circumstances, those who for humane purposes were going to shoot injured deer.

The second part of the contest was whether or not the Chief Constable had power to or was correct to revoke the licences partially. That involved a consideration of section 30B(2) of the Firearms Act 1968 which provides, that a firearms certificate may be partially revoked only if the chief officer of police is satisfied that the holder no longer has a good reason for having in his possession or requiring the firearm or ammunition to which the partial revocation relates.

The second part of the contest was essentially a question of fact, to inquire whether Mr Newton and

Mr Goodman did indeed continue to have a good reason for having these handguns in their possession for the purpose referred to in section 3 of the 1997 Act. After hearing evidence, the learned judge decided that they did, and the appeal was allowed.

This Case Stated concerns the learned judge's order as to costs. He ordered the Chief Constable to pay the Respondents' costs and the Chief Constable appeals against that order. We are told by Mr Crawford on behalf of the Chief Constable, and it is evident from the transcript, that the question of costs was, as so often happens, dealt with in fairly short order at the end of a long day, perhaps it was a Friday, and that the discussion was quite short.

It should be said that the learned judge had found that the Chief Constable had acted entirely in good faith, and no criticism was levelled against him in the way in which this been been handled. It should also be emphasised that both Mr Newton and Mr Goodman were found to be, and obviously are, persons of complete integrity who have acted entirely responsibly over a long period of time in their possession of and use of firearms.

In making his submission in opposition to the application by Mr Hague on behalf of the respondents for costs before Judge Morrison, Mr Crawford pointed out that it had been clear throughout everything that has been said in this case that the Chief Constable's representative acted in complete good faith. It is obvious that in making his costs order Judge Morrison took that into consideration.

In the short passage which contains the judge's reason for making his costs order, he said this:

"It is a not a punitive thing, Mr Crawford, it is a matter of - I am not saying, if it helps you Mr Crawford, and those behind you, that we would necessarily have made the same order in regard to costs had it not been for the grant of the certificate in the first place, which does make a difference."

It appears that the learned judge took into account two things: first, that the Chief Constable had acted in complete good faith, and secondly, that the case did involve the grant of the certificate in the first place.

It is plain that the judge did not take fully into account the legal background and decided cases about making costs orders where the losing party is in a position of the Chief Constable in this case, acting as a licensing authority. The cases were simply not drawn to his attention.

We have had a number of cases drawn to our attention. In my view, the principle is most succinctly expressed in the judgment of Sir Stanely Rees in R v Uxbridge Justices ex parte Commissioner of Police of the Metropolis (1981) 3 All E R 129, a case which concerned an issue under the Police Property Act 1897. On page 141 he said:

"Even in a case in which the police do not consent to the order sought by the claimant or claimants but attend the hearing and the magistrates are satisfied that it was reasonable for them to do so in order to assist the court to assess the validity of the claim or claims made to the ownership of the property, it would be proper for no order for costs to be made against the police, even if the order for delivery of the property sought by a claimant were made. In short, in my judgment, the proper approach to application for costs in such proceedings should most certainly not be on the basis that costs should simply follow the event, but rather that the discretion to award them should be sparingly exercised, having regard to the exceptional nature of the role of the police as custodians of the property in issue, who require an order of the court to protect them before delivering up of the property to a claimant."

That was, as I say, a case under the Police Property Act. Another case to which we have been referred is Enfield London Borough Council v Mahoney (1983) 2 All E R 901 where similar views were expressed in relation to the Official Solicitor. In his judgment at page 907, Lord Justice Watkins said:

"It is right to say, however, that, what I have said notwithstanding, the Official Solicitor should not regard himself as always being immune from an order for costs being made against him. If he should be found to have acted with impropriety or wholly unreasonably, he cannot but expect an order for costs to be made against him. In this case the Official Solicitor in my view has acted with absolute responsibility."

Mr Crawford has referred us also to the case in the Queen's Bench Division of R v Totnes Licensing Justices ex parte Chief Constable of Devon and Cornwall 156 JPR 587. That was a licensing case and much the same approach is taken. In particular, Mr Justice Roch said at page 590:

"Mr Barrie has pointed out that the basis of that principle is this: the losing litigant should not have contested the matter before the court. In my judgment it was wrong for the justices to treat this matter as civil proceedings between two private litigants and to ignore the factor urged upon them by the solicitor appearing for the police authority, namely, that the police have a function which they are required to perform. They are required to supervise the proper conduct of licensed premises and to object in those cases where there are good grounds for objecting to the renewal of the licence. That that is the police's function is clearly demonstrated by the provisions in the Licensing Act which give the police power to enter licensed premises whether at the invitation of the licensee or not."

A little further down the page at 591:

"Such factors emphasise the importance of the police being able to discharge their functions with regard to licensing laws fairly and properly. Of course, if the evidence indicated that an objection by a police authority to the renewal of the justices' on-licence was misconceived, that it was without foundation or born of malice or some improper motive, then it would be just and reasonable for the police to be ordered to pay the costs of the successful licensee...

... Where, as in this case, the objector is the police authority who in good faith is discharging its function in relation to the proper conduct of licensed premises and the justices, as in this case, fully accept that the objection has been properly made, then the justices must take account of both these factors in deciding what order is just and reasonable."

Again, a little further down the same page:

"In my judgment, that is still sound advice which the justices should follow when seeking to make orders for costs under s.193B(1) of the Licensing Act 1964. Their duty is to take into account all the relevant circumstances. In cases such as the present, the justices must remind themselves that the police are performing the role which is required of them, namely, to supervise the proper conduct of licensed premises."

A similar approach was adopted recently in this Court in the case of Hussain v Singh (3rd November 1997), a Divisional Court decision in a Court presided over by Lord Justice Kennedy.

The first thing in my judgment to say is that the learned judge in this case did not, I think, have the benefit of the authorities to which I have just briefly referred. Although an allusion was made in submissions to him to the Chief Constable acting in complete good faith, it seems to me that the learned judge did not have clearly before him the approach which those cases indicate to the proper exercise of his discretion in this case. That leads to the proposition that he did not take all matters properly into account. This is not something which he should be criticised for late on a Friday afternoon when the authorities were not drawn to his attention. But it does mean, in my judgment, that his discretionary decision as to costs is open to review by this Court.

It is of course important to say that decisions as to costs are discretionary and that any court or tribunal exercising such discretion is obliged to take into account all relevant circumstances. One such relevant circumstance was that this was indeed a police authority performing a statutory licensing function. This will not be determinative of all cases, but it is important that the tribunal takes into account that, generally speaking, a cost order adverse to such an authority would not be made unless there was some good reason for doing so, which was more than the fact that the other party to the contest had succeeded.

Such an order may be made in the kind of circumstances alluded to by Mr Justice Roch in the Totnes Justices case where the authority has not acted in good faith or has run a case which was without foundation or born of malice or of some improper motive.

Mr Hague, on behalf of Mr Newton and Mr Goodman in this case, submits in effect that this is such a case. He submits that the Chief Constable conducted these proceedings unreasonably. He submits that what the Chief Constable did (to use Mr Hague's words) was misconceived and without foundation. Mr Hague says firstly, that the Chief Constable misconstrued the statute, in particular section 3 of the 1997 Act, and it may be that subsidiarily he misconstrued section 30B(2) of the 1968 Act. This may have been on advice from the Home Office, but nevertheless the submission is that section 3 of the 1997 Act was plain in its terms and the Chief Constable acted upon a misconception.

Secondly Mr Hague submits that the inquiry about whether Mr Newton and Mr Goodman did indeed continue to have a good reason for having possession of larger calibre handguns was misconceived. The Chief Constable's delegated officer had been satisfied in April and May, both of the bona fides and the genuine need of Mr Newton and

Mr Goodman for these weapons, and nothing had occurred in the meantime to suggest that anything had changed. The proceedings, it is submitted, were unreasonably opposed and two days' of court hearing and expense was incurred when it ought not to have been.

In opposition to that, Mr Crawford submits that the Chief Constable is there to administer firearm licensing for the benefit of and protection of the public. It was entirely reasonable for a Chief Constable to follow Home Office guidance, and it was entirely reasonable for the Chief Constable in this case and in the present climate to be careful in the light of public concern and the need for protection against dangerous handguns.

It may be, said Mr Crawford, that the particular issue in this case was decided against the Chief Constable, but it cannot be said that what he did was unreasonable.

In my view, this is a borderline case so far as costs are concerned. I can certainly see some force in Mr Hague's submissions, but exercising afresh, as in my view we are entitled to do, the discretion which Judge Morrison exercised, I consider on balance that this is not a case where costs ought to have been ordered against the Chief Constable. He acted, as the judge held, in complete good faith and, in those circumstances, the costs order ought not to have been made against him. I, for my part, would allow this appeal.

MR JUSTICE SCOTT BAKER: I agree.

LORD JUSTICE MAY: Very well, Mr Crawford, the appeal will be allowed and the costs order will be set aside.

MR CRAWFORD: My Lord, that leaves us with the costs of today.

LORD JUSTICE MAY: I should have thought the right order is no order as to costs. Would you like to make submissions as to that?

MR CRAWFORD: I do not think so, my Lord.

LORD JUSTICE MAY: No order as to the costs of the appeal, thank you very much.