QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF THE CHIEF CONSTABLE OF SUSSEX||Claimant|
|CHICHESTER CROWN COURT||Defendant|
|PAUL ANDREW STONER||Interested Party|
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MR N HAMBLIN (instructed by Adrian Dagger Solicitor, Crawley RH10 6AA) appeared on behalf of the Interested Party
Crown Copyright ©
"... if the chief officer of police has reason to believe-
(a) that the holder is of intemperate habits or unsound mind or is otherwise unfitted to be entrusted with a firearm; or
(b) that the holder can no longer be permitted to have the firearm or ammunition to which the certificate relates in his possession without danger to the public safety or to the peace."
"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."
It is the provision in relation to danger to the public safety or to the peace which was relied on in both cases.
"The court has given very careful consideration to this matter. I think it is right that I should say that we are somewhat concerned about the evidence of the air gun [that related, as I understand it, to a suggestion that an air gun had not been kept in secure conditions], although we appreciate that that is not part of the legislation, and the shotgun being seen in the corner of the room. But having said that, we are not satisfied that the prosecution have proved what they are required to prove under section 30A in respect of the firearms certificate and section 30C in respect of the shotgun certificate.
So, in the circumstances, the appeal is allowed."
It is perhaps put in a slightly unfortunate manner, because this was not a prosecution. Nor is it a question of the prosecution having to prove anything. The Chief Constable has to establish, to the civil burden, that his revocation is one which was appropriate. Of course, the same burden applies if a firearm certificate is refused.
"Mr Downs, I think my colleagues would probably agree with me about this, that we cannot see that the Chief Constable is really in any way to be criticised for the approach that has been taken. For one thing, of course, the appellant called two witnesses whose evidence was not taken into account and could not have been by the Chief Constable. Those witnesses, we have to say, were quite compelling so far as our decision was concerned.
On the other hand, having said that, it does seem rather tough on the appellant that having won he has to pay all his costs. Those are my, as it were, off-the-cuff observations, not that it helps much in making a decision."
He then invited Mr Hamblin to deal with submissions that had been made by Mr Downs.
"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 has 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."
May LJ then referred to a number of cases which had not been drawn to the judge's attention, which set out the principles which apply in cases of this sort where one is concerned with the police obligation in relation to licensing or under the Police Property Act and such like matters. The citation which the court particularly relied on was from a decision in R v Totnes Licensing Justices ex parte Chief Constable of Devon and Cornwall 156 JPR 587. Roch J in that case (at page 590) had said this:
"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. ...
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."
The context, of course, is that the police are performing a role that is required of them, in that case the supervision of the proper conduct of licensed premises and in this case the supervision of the power to possess firearms and shotguns.
"... 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."
So the appeal was allowed.
"It seems to me that no order can properly be made against the police simply on the basis that costs follow the event. The Crown Court can only make such an order if it can be shown that the police's position has been totally unreasonable or prompted by some improper motive."
He then goes on to consider the decisions to which I have already referred of Roch J and of May LJ in the Divisional Court. He goes on:
"But that [that is to say the fact that it was a firearms case] does not affect the position that, where the police have a public duty to afford protection to the public in respect of some particular activity, whether it is firearms or the conduct of licensed premises, if they have relevant information which goes to the fitness of an Applicant, then it is in the public interest, and in pursuance of their public duty, that they make their position clear to the relevant Tribunal, whether it is the licensing justices or the Crown Court. If in so long as they act responsibly in accordance with that duty, then no adverse order for costs can be made against them. It is not a simple case of costs following the event; it must be clear, as I indicated earlier, that the police have acted otherwise than in good faith or have acted utterly unreasonably before they are exposed to an Order for costs."
As I say, Mr Downs placed those authorities before the court.
"In the exercise of our discretion in relation to costs, we have taken the view that the Chief Constable ought to pay. We think that the schedule of costs is a reasonable one. So there will be an order against the Chief Constable of the appellant's costs of £2,160.81."
"The Resident Judge has had sight of your letter and has made the comment that there is no case to be stated."
I am bound to say that I find that an extraordinary reaction to the application. It was plain beyond any peradventure that: (a) no reasons had been given, and it was clearly arguable that that was an error of law; and (b) that in any event the making of the order was arguably in the teeth of the cases which had been put before Judge Baker. So there were two grounds upon which an error of law could clearly be identified. For the resident judge to have rejected the application to state a case in those terms was, as I say, quite extraordinary, and in my view manifestly wrong.
"Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant-
(a) leave for making of the application; or
(b) any relief sought on the application,
If it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."
The construction of that subsection and its relationship to the provisions in the CPR rules, which require that an application be made promptly and in any event within three months, have been the subject of a considerable amount of litigation and of two cases before the House of Lords. The first is R v Dairy Produce Quota Tribunal ex parte Caswell  2 AC 738, and the second R v Criminal Injuries Compensation Board ex parte A  2 AC 330. The upshot of those authorities is that if permission to apply for judicial review out of time has been granted -- or has been granted, of course, within time -- then the question whether leave should have been granted cannot be reopened at the substantive hearing, and it is not open to a judge at that hearing to reconsider the question of an extension of time and whether good grounds have been shown under the CPR rules. What can be done at the substantive hearing is to consider whether relief should be refused if the granting of such relief would be likely to cause hardship or prejudice within the meaning of subsection 31(6), or would be detrimental to good administration. That issue is still open, but delay must have had the effect mentioned in section 31(6) to disable the court on that ground from granting relief that it would otherwise have been prepared to grant.
"However, if the judge and justices in this instance were to state a case, they would be unlikely to go further about their reasons than referring to what is set out in the transcript. To add further reasons would expose them to possible criticism of ex post facto reasoning ..."
Then he referred to a decision of Simon Brown LJ in R v Blackfriars Crown Court ex parte Sunworld  1 WLR 2102, in which he attempted to set out the principles that ought to apply, and suggested that where a court refused to state a case the party aggrieved should without delay apply for permission to bring judicial review, either a mandatory order to state a case or to quash the order sought to be appealed; and that if a reasoned judgment containing all the necessary findings of fact had been given, then, if a point arose, judicial review directly challenging the order, avoiding a case to be stated, would be desirable. But if there were no reasons, although the learned Lord Justice does not deal with that in terms, the implication is that a case stated may be still appropriate.