England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2023

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.

Sir Stephen Irwin:

INTRODUCTION

1. 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.
2. 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).
3. It is agreed between the parties that the issue falls to be decided as a matter of law and without evidence being advanced.
4. The Defendant does not appear and makes no submissions.

SUMMARY OF THE FACTS AND PROCEDURAL HISTORY

5. 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.
6. 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".
7. 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.
8. 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.
9. 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.
10. 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

11. 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.
12. 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."

13. 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."

14. 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)

15. 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).

16. 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

17. 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

18. 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 civil. Mr Doherty for the IP does not seek to contradict that picture. The significant passages, taken from the 2023 Revision, are too extensive conveniently to incorporate into the body of this judgment, and are therefore attached as Annex 1.

The Ruling Below

19. In a careful and clearly expressed ruling, HHJ Barklem reviewed the facts and the authorities, including Al Rawi and others v Security Service and others [2012] 1 AC 531 and R(Haralambous) v St Albans Crown Court [2018] AC 236. The essential reasoning is well expressed in the last few paragraphs of the Ruling:

"25. In our judgment, Al Rawi remains the authoritative statement of the law, and any exception to it must be demonstrated by reference to a statutory code such that it could be said (as in Haralambous) that "Parliament must be taken in these circumstances to have contemplated that the Crown Court would, so far as necessary, be able to operate a closed material procedure". The other exceptions which have been raised in the authorities are not relevant to a firearms appeal.

26. There is nothing in the Firearms Act to suggest that Parliament could have intended such a procedure. Even the Guidance, to which the Court is bound to have regard, not only fails to mention the possibility of a closed material procedure but makes specific mention of a public interest immunity application being made in certain circumstances to avoid compromising an investigation or intelligence source. It is common ground that the effect of a successful PII application would be that neither the Commissioner nor the Appellant would be able to rely on the relevant material at the hearing of the appeal. Consequently we reject the argument that this Court is entitled to permit the Commissioner to have a closed material procedure at the hearing of the appeal.

27. We acknowledge that the current state of the law, as we find it to be, places any Chief Officer of Police in a difficult position in a case such as this. Either confidentiality is broken or a Court hearing an appeal may not have the full picture as it was before the decision maker. However, that is what happens in all cases when a closed material procedure is not available, which, as Al Rawi makes clear, is the vast majority of cases before the Courts. PII decisions and the need to prioritise confidentiality can make both criminal and civil cases untriable. In the present case, subject to any appeal, the Commissioner may present to the Court at the hearing of the appeal only material which has been disclosed to Mr Scott.

28. The solution to the Commissioner's dilemma does not, in our judgment, lie with the Courts but with Parliament. Following a report by the relevant HM Inspectorates in England and Wales and Scotland respectively into the firearms licensing regime Parliament acted in 2017 to empower the Secretary of State to issue statutory guidance. It could have, but did not, mandate a closed material procedure."

The Claimant's submissions

20. The Claimant advances four Grounds. First, the Crown Court were wrong to conclude that Parliamentary authorisation for a CMP could not properly be inferred from the firearms licensing regime. Second, the Crown Court failed to draw the correct conclusions from the decision in Competition and Markets Authority v Concordia International RX [2019] 1 All ER 69, a case where the Court of Appeal inferred that a CMP was available (although not expressly provided for by statute) in relation to the process for the grant of a warrant under the Competition Act 1998. Third, that the Court was wrong to interpret the reference to "an application for public interest immunity" in paragraph 3.50 of the Guidance (quoted above) as necessarily meaning an application for public interest immunity only in the narrow sense of an application to withhold relevant material from the proceedings, rather than the broadened sense of including a "PII application which serves as a precursor to a CMP". The fourth ground, closely connected to the third, is that the Court drew an "inapt analogy" between the instant combination of fact and law, and "criminal and civil cases in which parties are put to their election as to whether to disclose sensitive material or concede the claim/case (or certain issues in the case)." Ms Ventham was clear that the first ground is the essence of the matter.
21. The Claimant's central argument is that the statutory regime, including the statutory Guidance, is rendered ineffectual (and indeed absurd) if the Chief Officer's delegate can and must take into account intelligence and other sensitive material which cannot be disclosed, but the Crown Court, deciding an appeal de novo is precluded from doing so. On that central point, it was wrong to distinguish the current case from the situation in Haralambous where the Supreme Court (at [52]) inferred the power to grant a CMP so as to avoid "an awkward mismatch between the bases of the original and reviewing decisions". There was no essential distinction between a decision relating to a warrant and a decision concerning firearms. Both regimes entail a merits decision by a court, involving authorising "intrusive policing powers in the interests of public safety/prevention of crime". Each may involve the police relying on sensitive confidential material where disclosure would harm an important public interest.
22. Equally, the decision in Concordia was concerned with a similar "awkward mismatch", and the Court of Appeal were right to infer the power to order a CMP. King LJ was correct in that case to conclude that the ratio in Al Rawi did not preclude a CMP in the absence of express statutory authorisation, because the Supreme Court was not "directing its attention to this 'very special situation'".
23. The IP's submissions are grounded on the central proposition that Parliament did not expressly enact the power to introduce a CMP in the legislation. Nor was such a process expressly incorporated into the Guidance issued in 2021. Even accepting the "awkward mismatch" between the police decision and the Court, it is a step too far to infer such a procedure in the absence of clear statutory language. There is a clear distinction to be made between warrant cases, which form a category of their own for a number of reasons, and a case such as this, which would represent an intrusion on the rights of the IP. Accepting that there can be no positive right to acquire or retain a shot gun certificate, Mr Doherty argues the IP does have a "qualified right" under the Firearms Act, and Article 8 of the European Convention on Human Rights. His Article 6 rights under the Convention are also engaged.
24. Earlier authority on the Firearms Act emphasises that, although the normal rules of evidence do not apply in full, and there is no right of cross-examination of witnesses, the Courts have emphasised that procedural fairness must be achieved: see in particular R (Mason) v Winchester Crown Court [2018] 1 WLR 3850. Those requirements are in conflict with the imposition of a CMP. The IP would be left in ignorance of the content of the sensitive information and unable to mount any corrective challenge.
25. Mr Doherty relies on the observation of Chamberlain J in Jordan v Chief Constable Merseyside Police and others [2020] 2274 (Admin), at [29] where he said: "any CMP represents a fundamental derogation from the standards of procedural fairness on which common law ordinarily insists."

The Appointment of a Special Advocate

26. The IP submits that, if a CMP is granted, "careful consideration" should be given to the appointment of a Special Advocate to assist the Crown Court in assessing the reliability and accuracy of the Closed material. Unsurprisingly, Mr Doherty was hampered in fully developing this submission before us, given that he is unaware of the nature of the sensitive material (as are we). I return to this issue below.

Analysis

27. The starting point on the main issue in this case must be a consideration of Al Rawi. Although Lord Clarke was the only dissenter as to the outcome, there was in fact quite a variation in the views expressed by those Justices who formed the majority. The decision of the Court of Appeal (Lord Neuberger of Abbotsbury, Maurice Kay, Sullivan LJJ) had rested to a considerable degree on the distinction between an 'ordinary civil claim', where they felt the introduction of a CMP by the judicial development of common law was too radical a step, leaving open the implication that such a step might be permissible in other categories of case. For much of his leading judgment in the Supreme Court, Lord Dyson also referred to 'an ordinary civil claim' or 'a civil claim for damages' or 'ordinary civil litigation': see paragraphs 1, 9, 39, 46, 55 and 69, that last paragraph containing his overall conclusion on the case. However, in paragraph 51, Lord Dyson spelled out that the categorisation of claims identified by the Court of Appeal was, in his view, not the critical principle. He said:

"But that was not the only reason given by the Court of Appeal for refusing to follow those decisions [where CMP or similar measures had been ruled as permissible]. In none of the cases was proper consideration given to the question whether a closed material procedure was a permissible development of the common law."

28. Lord Dyson went on as follows:

"Ordinary civil claims

62. I agree with Lord Clarke JSC, for the reasons that he gives, that there can be no principled basis for distinguishing between ordinary civil claims and claims for judicial review. I would accept the submission of Mr Howell that the mere fact that there may be a public interest involved in the determination of a case does not mean that the court may disregard the duty imposed on it by the law relating to PII or may override the fundamental rights of a party to civil litigation recognised at common law.

63. But I agree that there are certain classes of case where a departure from the normal rule may be justified for special reasons in the interests of justice. Thus as Baroness Hale of Richmond said in Secretary of State for the Home Department v MB [2008] AC 440, para 58:

"If ... the whole object of the proceedings is to protect and promote the best interests of a child, there may be exceptional circumstances in which disclosure of some of the evidence would be so detrimental to the child's welfare as to defeat the object of the exercise."

Wardship proceedings are an obvious example of such a case: see In re K (Infants) [1965] AC 201, 241A, per Lord Devlin. Cases involving children raise different considerations from those which arise in ordinary civil litigation. That is because the interests of children are paramount. It follows that where the interests of the child are served, so too are the interests of justice.

64. Similarly, where the whole object of the proceedings is to protect a commercial interest, full disclosure may not be possible if it would render the proceedings futile. This problem occurs in intellectual property proceedings. It is commonplace to deal with the issue of disclosure by establishing "confidentiality rings" of persons who may see certain confidential material which is withheld from one or more of the parties to the litigation at least in its initial stages. Such claims by their very nature raise special problems which require exceptional solutions. I am not aware of a case in which a court has approved a trial of such a case proceeding in circumstances where one party was denied access to evidence which was being relied on at the trial by the other party.

65. In my view, the children and confidentiality cases cannot be relied on to justify creating a rule of general application in ordinary civil litigation. These are two narrowly defined categories of case where a departure from the usual rules of procedure has been held to be justified. …"

29. However, it is clear in my judgment that Lord Dyson was not seeking to set out an exhaustive category of the cases where it might be permissible to introduce a CMP, as a development of the conventional PII procedure. Nor were the other Justices in the case. As Lord Mance put it, after addressing the outcome contemplated in Carnduff v Rock [2001] 1 WLR 1786, whereby a case becomes untriable in the absence of a CMP or similar procedure:

"113. I note that the judgment of the Court of Appeal, whose decision the respondent has invited the Supreme Court to uphold "as correct for the reasons given by it", expressly leaves open the question of "whether a closed material procedure can properly be adopted . . . in an ordinary civil case such as the present, where all parties agree, or in a civil claim involving a substantial public interest dimension", and adds that, although this is an issue to be considered as and when it arises, "principle and the authorities relied upon [in the courts] below . . . suggest that a different conclusion may well be justified in such cases, albeit only in exceptional circumstances": para 71. Ms Rose did not challenge this qualification in her submissions. On the contrary, she went even further than the Court of Appeal. Her case, at para 133, states:

"There is similarly no need for this court to reach a decision on whether a closed material procedure would be permissible if the parties consented to it, or in different sorts of proceedings, where the task of the judge was not simply to adjudicate on a private law claim for damages. However, in so far as necessary, the respondent would submit: (1) A party may consent to absent himself from all or part of a hearing, and to allow the judge to see material which is not shown to him: there may be cases where it is in his interest to do so, and these are likely to include the public law contexts in which such consent has been given in the recent past. (2) The fundamental principles identified above, and the requirements of the CPR, apply with equal force to claims for judicial review, as to civil claims for damages. In the absence of consent, a court hearing such claims has no power to adopt a closed procedure."

Cases of consent are also outside the "basic rule" which Lord Dyson JSC identifies in para 22, that the court cannot exercise its power to "deny" parties their fundamental common law right to participate in proceedings in accordance with the common law principles of natural justice and open justice. An inability to allow a voluntarily accepted closed material procedure, as an alternative to striking a claim out as untriable, would be to deny something even more basic, that is any access to justice at all. Lord Dyson JSC in the first sentence of para 22 uses the phrase "at any rate, not without the consent of the parties" and may therefore also accept this.

114. Further, once it is accepted, as Lord Dyson JSC does ( para 63), that "there are certain classes of case where a departure from the normal rule may be justified for special reasons in the interests of justice", for example wardship and other cases where the interests of children are paramount, that to my mind also makes it diffcult to suggest that the court lacks jurisdiction in a strict sense to vary the basic principles of open and natural justice mentioned in para 107 above.

115. There is however a real distinction between having jurisdiction and exercising it. Principles as important as open and natural justice ought to be regarded as sacrosanct, as long as they themselves do not lead to a denial of justice. Absent statutory authorisation, any significant deviation from the ordinary process and consequences of a conventional PII exercise can and should only be under the compulsion of necessity, in order to avoid such a denial…."

30. The proposition that the category of cases where the power to accede to an application for a CMP was not exhaustive, was reinforced by the majority in the Supreme Court in Bank Mellat, HM Treasury (No2) [2014] AC 700. In that case widespread financial restrictions were made under section 62 and Schedule 7 to the Counter Terrorism Act 2008, which had the effect of preventing the appellant Iranian bank from operating in Britain. The mechanism for challenge to the orders was an application to the High Court to set aside the financial restrictions orders, pursuant to section 63 of that Act. By a series of provisions in Part 6 of the Act, powers to amend the Civil Procedure Rules are made enabling a CMP in such an application. Various safeguards relevant to a CMP are also introduced. Regulation enabling those changes were laid before Parliament in December 2008. The amendments made to the CPR enfranchise CMPs in such cases in the High Court and the Court of Appeal. However, proceedings before the Supreme Court are governed by the Supreme Court Rules. As Lord Neuberger PSC observed in his judgment at [33], the Rules of the Supreme Court "contained no provisions which enable public interest immunity to be avoided, and no express provisions for closed procedures", save for SCR rule 27, which fell clearly short of the full provision for a CMP contained in the CPR, as amended to cover such a case. The question therefore was whether, in the absence of express statutory provision, the Supreme Court could hold a CMP.
31. By a majority, the Court held that they could do so. The critical passages are found later in the judgment of Lord Neuberger:

"35. If a closed material procedure was lawfully conducted at the first instance hearing, it would seem a little surprising if an appellate court was precluded from adopting such a procedure on an appeal from the first instance judgment. As the advocate to the court said in the course of his full and balanced argument, one would normally expect an appeal court to be entitled to have access to all the material available to the court below and to see all the reasoning of the court below. Otherwise, it is hard to see how an appeal process could be conducted fairly or even sensibly. And, if that involves the appellate court seeing and considering closed material, it would seem to follow that that court would have to adopt a closed material procedure.

36 However, particularly in the light of the fundamental principle established in Al Rawi [2012] 1 AC 531, the question needs to be looked at with great care. In particular, it is necessary to inquire whether statute requires the Supreme Court to adopt a closed material procedure, at least in some circumstances, on an appeal from the Court of Appeal upholding (or reversing) a rst instance decision on an application under section 63(2) of the 2008 Act. As was said by counsel for Liberty (interveners on this appeal), supported by counsel for the Bank, any contention that a closed material procedure in a particular court in particular circumstances is sanctioned by a statute must be closely and critically scrutinised.

37. The contention that this court has the power to have a closed material procedure is based on section 40(2) of the 2005 Act, supported by section 40(5). The argument proceeds as follows: (i) section 40(2) provides that an appeal lies to the Supreme Court against any judgment of the Court of Appeal; (ii) that must extend to a judgment which is wholly or partially closed; (iii) in order for an appeal against a wholly or partially closed judgment to be effective, the hearing would have to involve, normally only in part, a closed material procedure; (iv) such a conclusion is reinforced by the power accorded to the court by section 40(5) to "determine any question necessary . . . for the purposes of doing justice", as justice will not be able to be done in some such cases if the appellate court cannot consider the closed material.

38. The strength of this argument is reinforced when one considers the possible outcomes if the Supreme Court cannot consider a closed judgment (or the closed part of the judgment) under a closed material procedure.

………………………………………….

62. All in all, therefore, I am unpersuaded by the various arguments raised against my provisional view that it is open to this court to adopt a closed material procedure in an appeal under the 2008 Act if justice requires it."

32. A similar approach was adopted by the Supreme Court in R (Haralambous) v Crown Court at St Albans and Anor [2018] UKSC1. There the claimant's home and other premises had been searched and property seized, following warrants obtained on an ex parte application under the Police and Criminal Evidence Act 1984. In the course of a judicial review challenge to the warrants, the Chief Constable made a successful application to the Crown Court for retention of the seized property. That was challenged by judicial review, the Divisional Court holding that on an application for a warrant, the magistrates were entitled under s59 of the Criminal Justice and Police Act 2001 to consider material which had in the public interest to be withheld from disclosure. Likewise the Crown Court was entitled to consider and rely on such material, since under s59 of the Act, the Crown Court was required to put itself in the shoes of the magistrates. In this instance, the Supreme Court was unanimous in deciding that, in the absence of express parliamentary authorisation to conduct a closed material procedure, the relevant judicial authorities – both magistrates and Crown Court - were entitled to hold a CMP, and so too was any High Court conducting a judicial review. Lord Mance DPSC expressed his conclusion as follows:

"59 In the light of these statutory provisions and of an analysis of the alternative possibilities paralleling that undertaken in Bank Mellat, I consider that the only sensible conclusion is that judicial review can and must accommodate a closed material procedure, where that is the procedure which Parliament has authorised in the lower court or tribunal whose decision is under review. The Supreme Court, when it referred in passing to judicial review in the Al Rawi case [2012] 1 AC 531, was not directing its attention to this very special situation. If it had done so, it might also have seen a similarity between this situation and the two exceptions which it did identify, where inability to adopt a closed material procedure would render the whole object of the proceedings futile and where the interests of third parties (such as informers) are potentially engaged. Be that as it may be, I consider that the scheme authorised by Parliament for use in the magistrates court and Crown Court, combined with Parliaments evident understanding and intention as to the basis on which judicial review should operate, lead to a conclusion that the High Court can conduct a closed material procedure on judicial review of a magistrates order for a warrant under section 8 of PACE or a magistrates order for disclosure, or a Crown Court judges order under section 59 of the CJPA. I add, for completeness, that, even before judicial review was regulated by statutory underpinning, I would also have considered that parallel considerations pointed strongly to a conclusion that the present situation falls outside the scope of the principle in the Al Rawi case and that a closed material procedure would have been permissible on a purely common law judicial review."

33. As the claimant emphasises, the Court of Appeal reached a similar conclusion in the Concordia case. In that instance, there had been an ex parte hearing in the High Court to obtain the issue of warrants to enter and search premises. The relevant statute provides for challenge to the issue of a warrant by a subsequent application to the High Court. It was agreed, in the light of the decision in Haralambous, that the judge hearing the initial application is obliged to consider all relevant material, in the absence of those affected by the warrants, including material which will be or may be the subject of a PII application. The issue was whether such material could be considered in a CMP by the judge hearing the subsequent challenge. There too, the Court held the proper course was to infer the power to order a CMP, where that was necessary to make sense of the applicable statutory scheme.
34. A similar point arose, but with a different outcome, before the Privy Council in Ramoon v Governor of the Cayman Islands and another [2023] UKPC 9, decided in March 2023. The appellant was a dangerous prisoner, convicted of murder and subject to life imprisonment with a very long minimum term, held in the only male prison in the Cayman Islands. The prison was a low-security institution. The appellant was transferred to a prison in the United Kingdom, by the exercise of executive powers conferred on the Secretary of State for Foreign and Commonwealth Affairs and on the Governor of the Cayman Islands, by the Colonial Prisoners Removal Act 1884. The transfer was effected without prior warning to the prisoner, and without invitation or opportunity to make representations before the decision to transfer was taken.
35. The appellant sought judicial review of the decision. Reasons for the decision to transfer were set out in a letter. The letter explained that most of the material underlying the decision was too sensitive to be disclosed. A successful application for PII was made in respect of much of that material, although at the same time evidence was provided as to the reasoning underlying the decision, and redacted copies of relevant material were provided in the judicial review. Preliminary hearings in the judicial review proceeded. Carter J (ag) accepted the decision that no CMP was available in the Cayman Islands. He conducted PII proceedings, in which the appellant was represented by a senior Special Advocate. The relevant documents were held to be subject to PII.
36. At the substantive hearing of the judicial review, Wood J (ag) affirmed that the appellant had no access to the PII documents, and dismissed the application.
37. That decision was appealed. The Court of Appeal concluded inter alia that a CMP was indeed available and allowed the application of the respondent to vary the order of Carter J (ag) to that extent.
38. On appeal to the Privy Council, the issue of importance to the instant case was whether the Court of Appeal of the Cayman Islands erred in holding that a CMP was available, and if such a jurisdiction existed, whether it could be properly exercised. The Privy Council overturned the decision below. The key reasoning of the Judicial Committee was set out in the judgment of Lord Lloyd Jones as follows:

"49. In the present proceedings, it has been contended on behalf of the respondents that there is an analogy between the position of the Governor, considering material which it would be contrary to the public interest to disclose, and that of the lower courts in Haralambous. It is submitted that since the original decision maker, the Governor, was entitled to see undisclosable material, the court in order to conduct an effective judicial review must also be able to do so and that this can only be achieved by a CMP. This submission was rejected by Sir Alan Moses in the Court of Appeal. In the Board's view he was right to do so for the reasons he gave. There is no analogy between the wide powers of the Governor and the express statutory authority to conduct ex parte hearings conferred on the magistrate in Haralambous. As Sir Alan put it, the process by which the executive reaches a decision as to whether to exercise a power conferred by statute is far removed from an ex parte application to a court. Moreover, the respondents' submission proves too much. If accepted, it would follow that whenever a decision maker in coming to his decision had taken account of material for which PII was properly claimed the door would be opened for a CMP. Far from being a limited exception to Al Rawi, this would be a negation of the principles stated there.

…………

51 In the present proceedings, it has been contended on behalf of the respondents that there is an analogy between the position of the Governor, considering material which it would be contrary to the public interest to disclose, and that of the lower courts in Haralambous . It is submitted that since the original decision maker, the Governor, was entitled to see undisclosable material, the court in order to conduct an effective judicial review must also be able to do so and that this can only be achieved by a CMP. This submission was rejected by Sir Alan Moses in the Court of Appeal. In the Board's view he was right to do so for the reasons he gave. There is no analogy between the wide powers of the Governor and the express statutory authority to conduct ex parte hearings conferred on the magistrate in Haralambous . As Sir Alan put it, the process by which the executive reaches a decision as to whether to exercise a power conferred by statute is far removed from an ex parte application to a court. Moreover, the respondents' submission proves too much. If accepted, it would follow that whenever a decision maker in coming to his decision had taken account of material for which PII was properly claimed the door would be opened for a CMP. Far from being a limited exception to Al Rawi , this would be a negation of the principles stated there."

39. The Judicial Committee went on to conclude on the facts of the case that judicial review could properly proceed without recourse to a CMP. The relevance of that case for us is that it is clearly an insufficient basis to infer jurisdiction to order a CMP, in the absence of an express statutory power, merely because an executive decision may properly be taken on the basis of undisclosable material, when that material may not be considered or relied upon in an appeal or review, while remaining undisclosed. A simple "mismatch" is not enough for the common law to introduce a CMP as an incremental step.
40. In my judgment, there are considerations which distinguish this case from all those I have considered above. I accept that it is significant the decision in the instant case was not taken by a lower court acting under statutory powers. That distinguishes this case from Al Rawi, Bank Mellat, Haralambous and Concordia.
41. I do not consider there is any important point to be made that this is not a case involving the issue of a warrant. Of course, the issue of a warrant has to be done without prior revelation of the application, or the whole statutory purpose would be defeated, and it is a relevant safeguard in warrant cases that there is an avenue for review, albeit that review may itself be conducted by means of a CMP. However, Bank Mellat is not a warrant case.
42. On the other hand, although the decision in Ramoon was no doubt properly taken on the basis of sensitive material, the decision-makers there had not been directed by Parliament to follow Guidance which expressly enjoined them to look at the widest range of information, much of which – if it existed - was by definition likely to be incapable of being safely revealed. In addition, that approach is enjoined on the Crown Court conducting the review. These are important distinctions from the position in Ramoon. The Guidance is not statute, but it is the express wish of Parliament (S.44(3A) of the Act) that "The court … hearing an appeal must have regard to" the Guidance. How can a Crown Court give effect to the clear intention of Parliament if it is unable safely to consider relevant material, which has been relied on by a Chief Constable, because it is his explicit duty to do so?
43. We were referred to the decision in R (Mason) v Crown Court at Winchester [2018] EWHC 1182 (Admin), a decision in which I concurred. In that case the judge in the Crown Court appeal had curtailed the evidence so that relevant evidence was not given and he invited and heard submissions from one side but not the other. In his judgment, Jeremy Baker J emphasised that: "whether it be the chief constable acting in an administrative capacity or the Crown Court in its appellate capacity, the rules of natural justice will apply, such that adherences to these is an essential prerequisite to the lawfulness of any such decision. Albeit, the extent of the procedural requirements which will be necessary for fairness to be achieved will depend upon the nature of the decision and the context in which it is being considered" [45]. The judge also emphasised that the "rules of natural justice are likely to require that an individual is given reasonable notice both of the reasons for the decision sought to be impugned, and the material upon which the chief constable reached the decision" [47]. Jeremy Baker J went on to give guidance as to how such appeals might helpfully be approached.
44. I resile from nothing in that judgment, and in my view the approach laid down there is appropriate for any case which does not involve the difficulty of evidence too sensitive to be revealed. That problem did not arise and was not considered in Mason. It is clear from the careful expression of the procedure set down in his judgment that Jeremy Baker J was aware there could be cases where the procedure he outlined could not be followed.
45. I am fully conscious of the danger expressed by Lord Hope in his judgment in Al Rawi at [73], where he observed "it is a melancholy truth that a procedure or approach which is sanctioned by the court expressly on the basis that it is applicable only in exceptional circumstances none the less often becomes common practice." I am also alive to the fact that a CMP represents a "second best" procedure to be approached with great care and consideration for the nature of the case, something well expressed by Chamberlain J in Jordan. In that case, which concerned the issue of warrants, the judge followed Haralambous, upheld a PII claim and allowed a CMP. In so doing he observed:

"17(e) Against this must be weighed the extent of the damage caused by non-disclosure to the public interest in the administration of justice. Any assessment of that damage requires a close focus on the issues in the case (both those pleaded and any others to which the undisclosed material gives rise) and the nature of the closed material. I would certainly not assume that, because the court can now consider that material in a CMP, there is no such damage: any proceeding where the opportunity for adversarial scrutiny is lacking represents a fundamental derogation from the standards of fairness which the common law ordinarily demands. But nor, for my part, would I assume that availability of a CMP means that the adverse effect on the public interest in the administration of justice is materially greater than it would have been previously, when material attracting PII was categorically inadmissible. One of the reasons why the Supreme Court in Haralambous was prepared to countenance a CMP in claims of this kind was that, without one, the absence of admissible evidence as to the basis on which the warrant was granted might well have favoured the defendant."

46. There have been many expressions in authority of the imperative that firearms, including shotguns, should not remain in the wrong hands. It is sufficient to quote Sir John Thomas P in Chief Constable of Essex v Campbell [2012] EWHC 2331, when he said: "[36] It is in the overwhelming public interest that the tightest control is exercised over those who possess firearms. The danger to the public is too well known to require any further observations by this Court". Indeed, the need is self-evident. It has also been long recognised that the approach to such decisions and appeals represents a "code.. which is in many ways to be regarded as self-contained": see Cusack J in Kavanagh v Chief Constable of Devon and Cornwall [1974] QB 624 at 629A.
47. It is also relevant in my judgment to consider the question of what rights of those subject to revocation are in play. I reject the submission of Mr Doherty that there can be construed a "qualified" or "partial" right to hold a shot gun certificate. The matter is more oblique. In Convention terms it is a question of private life.
48. The whole statutory regime is framed as a licensing regime. Unlike the United States, where the right to bear arms was enshrined in the constitution by the Second Amendment, there has never been a right to possess a firearm in English law. Indeed, that was the very reason for the Second Amendment. For the great majority of those who hold shotguns legally, their use is recreational. I accept that there is a minority for whom a shotgun certificate is a necessary precondition to their occupation. But even there, it seems to me obvious (and consistent with the language and sense of the legislation and the Guidance) that interference with their rights under Art 8 of the European Convention on Human Rights must be fully justified to avoid any real risk of misuse of a firearm.
49. In R (Terra Services Ltd) v National Crime Agency and others [2020] EWHC 130 Admin, a court of which I was a part had to consider whether to grant an application for the appointment of special advocates in a CMP. The case concerned warrants, and the CMP had been granted following Haralambous. The court identified the fact that it is possible usefully "to discuss a broad hierarchy of requirements for approach to CLOSED hearings": see [17] to [24]. It is not necessary to incorporate the full passage from that judgment here. Although the discussion in that case concerned what measures should be allowed to operate within a CMP, rather than whether there should be a CMP at all, it seems to me that it is helpful to identify what rights are in question, on the one hand in relation to the individual whose certificate is subject to revocation, and on the other hand in relation to the public. The individual has Art 8 rights to pursue a legitimate pastime, and sometimes an occupation. The individual also has potentially some rights as to fair procedure under Article 6. The latter would add little or nothing to the rights at common law articulated by Jeremy Baker J in Mason. On the other hand, the whole regime is intended to protect the public from serious harm or death: rights under Art 2 and 3 of the Convention. In Terra Services the court expressed the view that "challenges to the issue of search warrants fall towards the lower end of any such hierarchy, essentially for the reasons given by Lord Mance DPSC in the passages from Haralambous [at [31] and [65] of that case]." In my judgment, the approach to the balance of rights in question here places the rights of the individual whose certificate is revoked even farther down any hierarchy of rights.
50. I emphasise that neither considerations of that kind, nor the serious practical problems arising from the "mismatch" between the position of the Chief Constable and the Crown Court, would, in my judgment, justify a conclusion that it is permissible to infer a power or jurisdiction to order a CMP, in the absence of a proper construction of the implications of the Firearms Act and the Guidance. That is the heart of the matter.
51. For those reasons, I would quash the preliminary ruling of the Crown Court, and remit the matter for the appeal to be heard.

Consequences and further observations

52. It will be evident that a CMP should only be considered where it is critical for the fair disposal of a firearms appeal. The existence of the jurisdiction in such cases emphatically does not mean that such a procedure should become the norm. The starting point in every case should be that the approach laid down in Mason should be followed. In particular, the respondent to such an appeal must consider most carefully whether the appeal cannot properly be resisted without reliance on sensitive material, even where such exists and has been relied on in reaching the decision challenged.
53. At the conclusion of argument, the parties were asked to consider what the appropriate procedural steps should be in such a case as this, in the event that this court decided as I have done. In the event that my Lady the President is in agreement with me on the main issue, it will be helpful to issue guidance to assist parties and the Crown Court.
54. I am grateful to counsel on both sides, who have cooperated in addressing the approach, particularly since they have reached agreement, save on one point. They have reduced their agreement to a schedule of steps. I indicate straight away that I would endorse the agreed proposal, subject to resolving the single point of dispute.
55. The dispute concerns the threshold for the appointment of a special advocate or advocates. Special advocates may be needed at two points in the procedure: firstly, at the PII hearing, and secondly at any substantive appeal which incorporates a CMP. Somewhat different considerations arise at those two points. It does not follow from appointment at the first stage that a special advocate will be needed at the second.
56. Ms Ventham for the claimant contends that the procedure should explicitly state, in respect of both points in the process, that appointment should be "exceptional". Mr Doherty rejects that submission. He accepts that the authorities tend to show that appointment will be exceptional, but that the insertion of the term in the text would have a regrettable chilling effect, "setting the bar too high".
57. On this issue I favour the position of the IP. In some CMPs the assistance of special advocates can be of great importance and assistance to the court. In other cases of this kind, their services are simply not needed. Undoubtedly such an appointment adds complexity, cost and time to proceedings, and an appointment should only be made if it is truly justified. Appointments should only be made in cases where there is a clear justification. However, the decision in each case should reflect the case in hand, and authority bearing on the point. No doubt that authority will develop over time. It does not seem to me helpful to attach a shorthand label to such a decision.
58. I attach the recommended procedure to this judgment as Annex 2 and commend the document to any Crown Court where these questions arise.

The President of the King's Bench Division

59. I agree.
Annex 1 to Judgment RELEVANT EXTRACTS FROM STATUTORY GUIDANCE FOR CHIEF OFFICERS OF POLICE FEBRUARY 2023

"Purpose

………….

1.4. The guidance covers the processes and criteria for assessing suitability to possess firearms [used in the Guidance to refer to all lethal barrelled weapons including shotguns, unless where a distinction is required] and to be a Registered Firearms Dealer ("RFD"). It is intended to assist chief officers in carrying out appropriate, proportionate and consistent checks and assessments in order to come to an informed decision.

1.5. Under section 44(3A) of the 1968 Act, the court (or sheriff in Scotland) hearing an appeal against a police firearms licensing decision must have regard to any guidance issued under section 55A that is relevant to the appeal.

1.6. The guidance is to be applied to all applications received, and licensing decisions made, on or after its publication, including reviews of suitability of existing certificate holders….

………………..

2 Suitability Checks

2.1 This chapter sets out the checks that chief officers should complete to assess whether a person can be permitted to possess firearms without danger to public safety or to the peace. The checks apply to the grant or renewal of a shotgun or firearm certificate, or for certification as an RFD.

2.2 The guidance sets out the standards which must be applied to ensure a thorough and consistent approach to assessing the risk to public safety……

……………………….

Background checks

2.4 All applicants should be checked against the widest relevant databases to gather conviction, intelligence and counter terrorism data

……………………

2.7 Where no background check is available, whether for a foreign national or a UK national with a significant period of residence abroad, the application should be refused, unless there are exceptional circumstances. Exceptional circumstances may include, for example, long-term residence in the UK and/or in the British armed forces (for example, fifteen years or more) combined with the absence of any of the factors set out in paragraphs 3.8 and 3.9

…………………….

2.9 Where the applicant has been resident in another force area for a significant period (more than six consecutive months) a check against local intelligence records for that force should be completed

……………..

2.12 Any other background checks deemed necessary (such as those set out at paragraphs 2.44 - 2.45) should be completed

2.13 If any new information comes to light as a result of background checks, for example if he applicant's circumstances have changed materially since the original grant or last renewal, or if they are otherwise considered higher risk, for example due to relevant information about behaviour or a medical condition, it is likely that more extensive enquiries will be necessary than if none of the above apply.

…………………

Social Media checks

2.48 Chief officers should consider conducting an open-source check of the applicant's social media presence and activity. The purpose of this is to establish whether the applicant is openly and repeatedly expressing views, or sympathising with views, which may suggest that their access to firearms would be inappropriate or unsafe. Police forces must respect the individual's right to freedom of speech, but if there is any indication of a possible propensity to violence, illegality or emotional volatility, these should be considered by the police when considering whether the applicant is fit to hold a firearms certificate.

2.49 This check is intended to identify those who set out such views on open-source social media, and it may not capture those who are posting on social media more covertly, whether anonymously or under a pseudonym or on closed sites. Where there is a suspicion, through force intelligence or other sources for example, of such conduct online, chief officers should consider whether it is appropriate to conduct a more thorough investigation of the applicant's online activity.

2.50 If a more in-depth investigation into an applicant's social media activity is required which looks behind privacy settings, this could amount to activity regulated by the Regulation of Investigatory Powers Act 2000, Investigatory Powers (Scotland) Act 2000 or similar legislation and will need to meet the requirements set out there for authorisation.

2.51 The National Police Chief's Council are working on developing a new national solution which, when ready, will assist police forces in conducting social media checks and meeting the requirements set out above.

Additional checks

2.52 Chief officers should carry out additional, non-routine, checks if, following the initial enquiries above, they believe them to be necessary to assess suitability fully.

2.53 These checks may include, but are not limited to: (i) checks with other agencies, such as health professionals other than the GP, social services, probation services or multi-agency groups; (ii) checks with other licensing or regulatory bodies or Government enforcement agencies; (iii) a drug or alcohol test; (iv)credit or other financial checks; (v) information obtained from open source social media; (v) interviews with individuals other than the applicant or their referees, for example, partners or representatives of shooting clubs attended by the applicant; (vi) background checks on partners or other individuals living at, or with unsupervised access to, the applicant's address; and (vii) checks where there is an indication of domestic abuse, as set out in paragraphs 2.54 – 2.59.

Additional checks by the police relating to domestic abuse

2.54 Evidence of domestic abuse is one of the most serious factors that should be taken into consideration in assessing an application (see paragraphs 3.25 - 3.27). A statutory definition of domestic abuse, as set out in the Domestic Abuse Act 2021 ("the 2021 Act"), incorporates a range of abuses beyond physical violence and sets out that behaviour is abusive if it consists of any of the following: (a) physical or sexual abuse; (b) violent or threatening behaviour; (c) controlling or coercive behaviour; (d) economic abuse; (e) psychological, emotional or other abuse, and it does not matter whether the behaviour consists of a single incident or a course of conduct

2.55 The Domestic Abuse Act 2021 became law on 29 April 2021 and following the commencement of its provisions, officers should perform their risk assessments based on the definitions as set out in the 2021 Act. The definition of domestic abuse is a statutory one as set out in sections 1 to 3 of the Domestic Abuse Act 2021 and statutory guidance to support with its understanding and implementation was published in July 2022. Officers should have regard to both the 2021 Act and the guidance when exercising their functions. The definition of domestic abuse is in two parts. The first part deals with the relationship between the abuser and the abused. The second part defines what constitutes abusive behaviour. Both the person who is carrying out the behaviour and the person to whom the behaviour is directed towards must be aged 16 or over and they must be "personally connected" (as defined in section 2 of the 2021 Act). This ensures that different types of relationships are captured, including ex-partners and family members. The definition captures a range of different abusive behaviours, including physical, emotional and economic abuse and coercive and controlling behaviour. The statutory guidance, which supports the 2021 Act, provides further details on the different types of abuse and abusive behaviours that sit within those categories.

2.56 Where there is information indicating the possibility of domestic abuse, an interview with the applicant's current partner or family member of the applicant or their partner should be completed. Where known and proportionate, interviews with any previous partners should also be completed. These interviews should not be in the presence of the applicant. Care must be taken to consider every case on its merits. Such interviews need to be conducted with sensitivity, and officers should take into account that a victim of domestic abuse may be unwilling to speak openly with the police for fear of further violence or reprisals. Information provided during interview must be treated as confidential. Officers should have received adequate training so that they are aware of the indicators of domestic abuse, and how to support victims and keep them safe. They should be aware that there may be a need to take active steps to protect an applicant's partner, family member or ex-partner from reprisals. This is particularly important in the event that the person is interviewed in connection with the application and provides information which leads to a refusal or revocation.

2.57 An applicant's partner or family member is not required to give approval for the issue of the firearms certificate, and this should be made clear to them. However, a request from a partner or family member that the applicant should not hold a certificate should be taken into account. The responsibility lies with the police to make the decision based on all the evidence available.

2.58 Checks with force domestic violence (or public protection) units and Multi-Agency Safeguarding Hubs (or Multi-Agency Risk Assessment Conferences) should be made to ensure all current and past assessments are available to inform the licensing decision.

2.59 Further checks with other acquaintances may be made as proportionate

………………….

3. Assessing suitability

A: General principles

3.1 The tests for the grant, renewal or revocation of a firearm or shotgun certificate under the 1968 Act are set out at the end of this Chapter. The primary consideration should always be whether the applicant can be permitted to possess a lethal-barrelled weapon without danger to public safety or to the peace.

3.2 All the suitability criteria set out in this Chapter apply equally to firearm and shotgun certificates, to RFDs and to decisions over grant, renewal and revocation. There are some additional requirements for RFDs relating to business need, premises and practices, which are covered in the Annex.

3.3 Each case should be subject to a risk assessment, considering all the available information in line with the factors for consideration set out in this Chapter. The chief officer must additionally be satisfied that the applicant has good reason for possessing firearms. General guidelines on good reason are included in the nonstatutory Home Office guide on firearms licensing law

……………………..

Danger to public safety or the peace

3.5 A danger to public safety or the peace exists if the applicant's ownership of the firearm could result in harm to self or others or disturb good order in public. This harm or disturbance could result from the applicant's own conduct or from the conduct of others.

3.6 The applicant need not have been involved in any physical violence to be considered unsuitable. For example, abusive behaviour, a lack of self-control, recklessness, disregard for the law in other areas, or a reasonable likelihood that the firearm could be accessed by another individual who is unsuitable, may suggest that the applicant's ownership of the firearm could result in a danger to public safety or to the peace. Any link to terrorism or proscribed groups or organisations or organised crime may also suggest this.

3.7 Given the potential for loss of life or serious injury arising from the misuse of firearms and shotguns, the chief officer should weigh up the risks of granting or renewing a certificate or registration very carefully whenever there is evidence or a suggestion that the applicant could pose a danger to public safety or the to the peace. Similar considerations apply to revocation or to the return of seized firearms. Where there is a risk of misuse, the chief officer should be prepared to exercise their power to seize the firearms or shotguns and revoke the certificate (section 30A and 30C of the Firearms Act 1968) or RFD registration (section 38 of the Firearms Act 1968) to mitigate the risk to public safety and the peace.

B: Factors to be taken into account

3.8 The chief officer should, when assessing the grant, renewal, or revocation of a firearm or shotgun certificate or RFD registration, ensure that all the available information that may be relevant to the case is considered. The factors listed below should form the foundation for the chief officer's decision in relation to whether a danger to public safety or the peace exists. The list is not exhaustive, and the police may use their knowledge of the individual case to identify other relevant information. It is acknowledged that all the information will not be available in every case, particularly where the initial checks in Chapter 2 have not indicated any need for more detailed enquiries

3.9 The previous criminal, or allegedly criminal, behaviour of an applicant may indicate a future or ongoing risk to public safety or to the peace in the event that they were to possess a firearm. Information that may be relevant in indicating criminal or possible criminal behaviour will include, but is not limited to: (i) previous convictions, cautions and any other disposal, for any offence (including speeding but not including parking offences or fixed penalty notices); (ii) all overseas convictions and disposals; (iii) arrests, police call-outs and bind-overs; (iv) any civil orders the applicant has been subject to, for example Domestic Violence Protection Notices (DVPN) or Domestic Violence Protection Orders (DVPO) or their Scottish equivalents, and compliance with those orders; (v) evidence relating to criminal proceedings that resulted in an acquittal; (vi) evidence, including intelligence, of any criminal behaviour where no charges, conviction or other disposal resulted; and (vii) safeguarding assessments, including domestic abuse, stalking and honourbased violence (DASH) assessments or those made by multi-agency safeguarding hubs

……………..

C: Assessment

3.12 In assessing whether or not the available information indicates a danger to the public safety or to the peace, the chief officer should assess: (i) the strength of the evidence; (ii) the length of time since the incident took place (and the behaviour in the intervening period); (iii) whether it is an isolated incident or part of a pattern of behaviour; and (iv) the level of seriousness (see sections on "most serious and "other serious" factors below).

3.13 In certain circumstances (see paragraphs 3.46 - 3.47), the law requires automatic grant, refusal or revocation, without any further consideration.

Strength of evidence

3.14 More weight will always be attached to a conviction where the evidence has been tested in court. However, behaviour that has not resulted in a conviction will still be a key part of any consideration about suitability. This may be particularly important in offence types such as domestic abuse where reporting rates are low.

3.15 Where information has not resulted in a conviction, chief officers should consider the credibility of the information, recognising the potential for malicious, but unfounded, allegations being made about the applicant. The applicant should be given the opportunity to comment on information about them which has not been tested by the courts, unless doing so may compromise an ongoing investigation, give rise to a risk of retribution, disclose confidential information about an individual other than the applicant, or reveal the identity of someone who has given information in confidence.

3.16 The test to be applied to assessing information regarding any behaviour or allegation that has not resulted in a conviction is the balance of probabilities. In other words, the chief officer should consider whether it is more likely than not to be true. Information that in itself does not meet that test may still be assigned weight when considered in the context of broader information, taking into account all the circumstances of the case. Chief officers should think critically about the reliability of the source where the allegation is made against an applicant, including whether the source has any motivation to discredit the applicant. This should be balanced against the necessary assessment of risk to public safety set out in paragraph 3.8 to 3.11 above

………………..

Most serious factors

3.25 There are some factors which, if the chief officer, having considered all the available information, reasonably believes to be present in an application, pose such a serious risk that the possession of firearms should only be allowed in exceptional circumstances.

3.26 Each application will be assessed on a case-by-case basis. Evidence (on balance of probabilities – see paragraph 3.16) of behaviour or offences in any of the following categories, while not an exhaustive list, will usually mean that the certificate is refused or revoked unless exceptional circumstances can be demonstrated: (i) affiliation or involvement in terrorism or proscribed groups or organisations; or aggressive, abusive or anti-social behaviour or incitement to hatred against particular groups categorised by, for example, race, gender, disability, sexual orientation, age or religion; (ii) affiliation with a serious organised crime group, or other involvement in serious organised crime; (iii) affiliation with a gang, or other involvement in gang activities; (iv) domestic abuse; (v) any other violence or credible threats of violence; (vi) robbery or burglary; (vii) criminal use of firearms or other offensive weapons; (viii) sexual offences; and (ix) any of the above in relation to a family member or associate who lives at the address or has unsupervised access to the address.

3.27 Where evidence falls short of the balance of probabilities, it may still be taken into account, alongside other factors as part of the general assessment

…………………

3.29 There may be cases where a certificate is not refused or revoked despite the presence of one of the factors in paragraph 3.26 because an ongoing investigation could be compromised as a result. These decisions are a matter for the chief officer.

…………………….

Outcome of assessment and final decision

3.45 Decisions should be authorised at an appropriate level of seniority (see paragraphs 3.50 – 3.51) and in all cases the applicant must be notified of the reasons in the case of a refusal or revocation with as much detail given of the reasons for the decision as is possible to reasonably provide.

…………………….

Reasons for refusal or revocation

3.52 Chief officers should inform applicants, including RFDs, of each of the contributing factors in their decision to refuse or revoke a certificate, setting out the reasons clearly with reference to the evidence involved. It may be justified for the police to withhold some or all of the factors if they can demonstrate that disclosure would present a genuine risk, for example, to an ongoing investigation, if there is a risk of retribution, if the reason involves confidential information about an individual other than the applicant, or if disclosing the reason may reveal the identity of someone who has given information in confidence.

3.53 In the event of an appeal, the chief officer might consider an application for public interest immunity in these circumstances to avoid compromising an investigation or intelligence source.

4. Continuous assessment

4.1 In addition to the checks at grant and renewal set out in Chapter 2 and, in relation to RFDs, in the Annex to this guidance, chief officers should ensure that processes are in place to allow continuous assessment of suitability to possess firearms or to be an RFD between grant and renewal.

4.2 These processes may consist of either:

(i) ensuring other parts of the force, including command and control and domestic violence (or public protection) units, systematically notify the firearms licensing department as soon as possible of any new intelligence or incidents involving certificate holders or RFDs, whether by automated processes or manually; or

(ii) the firearms licensing department completing cross-checks of certificate holders and RFDs against all relevant local and national databases and intelligence systems on a regular basis

4.3 As described in Chapter 2, any new information, including intelligence or medical concerns, that could increase the level of risk associated with a certificate holder or RFD should trigger a review of suitability, following the principles set out in Chapter 3.

4.4 If any new information or intelligence is received relating to domestic abuse, other violent conduct, or any of the other most serious matters, as described in Chapter 3, or any incident that results in the surrender or seizure of firearms, a full review of the certificate holder's or RFD's suitability (and not merely the most recent incident) should immediately take place. New information or intelligence about other serious matters may also result in immediate review at the chief officer's discretion.

4.5 Information about a certificate holder's or RFD's suitability may also be provided by members of the public known to the certificate holder or RFD, either directly to the force or its firearms licensing unit. All such reports should be investigated and recorded on the case file. If substantiated, a review of the continued suitability of the certificate holder or RFD should then take place. Reports made confidentially should be treated as intelligence and steps taken to ensure any inquiries or subsequent court proceedings do not reveal the source of the information.

Annex 2 to Judgment

RECOMMENDED PROCEDURE IN APPEALS PURSUANT TO S44 OF THE FIREARMS ACT 1968, WHERE APPLICATION IS MADE FOR CLOSED MATERIAL PROCEEDINGS

1. At the first available opportunity (and ordinarily within 28 days of service of the appellant's notice of appeal) the respondent must give notification to the appellant and/or the Court of its intention to make a PII application and to seek a CMP, disclosing in as much detail as possible the nature/category of the sensitive material in issue.^[1]

2. Thereafter, the parties should seek to agree directions in correspondence (alternatively, directions may be made at an initial "mention and fix" hearing), making provision for:

a. Service (ordinarily within 28 days) by the respondent on the appellant of any non-sensitive evidence upon which the respondent proposes to rely in the appeal ("the OPEN evidence"). [Note: it is incumbent on the respondent to include as much material as possible within the OPEN evidence. Thus, redaction of sensitive material (as opposed to the withholding of an entire document) should be considered and any OPEN gist of the sensitive material should be disclosed if it is possible to do so.]

b. Filing (ordinarily at the same time as service of the OPEN evidence) by the respondent of the sensitive material over which PII is claimed (subject to the Court putting satisfactory security arrangements in place for the handling and storage of such material).

c. Service (ordinarily within 21 days of service of the respondent's OPEN evidence) by the appellant on the respondent of any evidence upon which the appellant intends to rely in the appeal. [Note: the appellant's evidence should be served at this stage because it may be relevant to the Court's decision on PII.]

d. The listing of the PII application (with an appropriate time estimate) before a full-time Judge (High Court or Circuit Judge) and two lay magistrates.^[2]

e. Exchange and filing of OPEN skeleton arguments on the PII application and filing of an authorities bundle (ordinarily 14 days before the PII hearing).

f. Filing by the respondent of a CLOSED skeleton argument and CLOSED authorities bundle (ordinarily 14 days before the PII hearing), subject to satisfactory security arrangements. [Note: the Court will additionally need to consider its own arrangements for provision of the OPEN evidence to the lay members of the Court in advance of the PII hearing. Any CLOSED material will only be provided to the lay members at Court pursuant to appropriate handling conditions.]

If either party considers that a Special Advocate is required to represent the interests of the appellant at the PII hearing, written submissions in support of the appointment of a Special Advocate must be filed to enable the Court to determine the issue (probably at the first Mention hearing and in any event before the above directions are made). If a Special Advocate is to be appointed for the PII hearing, further directions will be required including service of the CLOSED evidence on the Special Advocate and exchange of CLOSED skeleton arguments prior to the PII hearing.

3. At the hearing of the respondent's PII application:

a. The Court should first hear the respondent's oral representations followed by those of the appellant in open court, before hearing the respondent's further CLOSED representations (and those of the Special Advocate, if applicable) in the appellant's absence (see Commissioner of Police of the Metropolis v Bangs [2014] EWHC 546 (Admin) at [30]-[33]).

b. The Court, if satisfied that (i) the sensitive material is relevant and material and (ii) its disclosure would cause harm to the public interest, must (iii) decide whether, balancing the public interest in the administration of justice against the harm to the public interest that would be occasioned by disclosure, an order for disclosure should be made (see R v Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274 at 280G and 281E).

c. No variation falls to be made to the application of the Wiley balance on the basis that the sensitive material might be considered by the court in a CMP (see R (Jordan) v Chief Constable of Merseyside [2020] EWHC 2274 (Admin); [2020] A.C.D. 125 and R (AIG) v HM Courts and Tribunal Service [2021] EWHC 584 (Admin); [2021] A.C.D. 71).

d. Any derogation from open justice "must always be the minimum derogation necessary", meaning it is incumbent on the Court and the respondent's legal advisers to consider whether relevant extracts and/or gists can be disclosed (see Bangs at [42]).

e. It may be useful to canvas at the hearing, in OPEN and/or CLOSED session as applicable, the anticipated procedure/sequencing of the substantive appeal hearing, subject to the outcome of the PII application.

If either party considers (subject to the outcome of the PII application) that a Special Advocate is required to represent the interests of the appellant at the substantive appeal hearing, written submissions in support of the appointment of a Special Advocate must be filed in advance of the PII hearing to enable the Court to determine the issue at the PII hearing.

4. The Court should hand down OPEN and CLOSED judgments on the PII application (making suitable arrangements for the secure transmission of the CLOSED judgment). The OPEN judgment should seek to identify every conclusion in that judgment which has been reached in whole or in part in the light of points made in evidence referred to in the CLOSED judgment and state that this is what has been done; and the OPEN judgment should say as much as can properly be said about the CLOSED material (see Bangs at [34]-[35]).

5. Upon hand down of the PII judgment, the Court should make further directions making provision for:

a. Service (within a suitable timeframe) by the respondent of any further evidence/gist ordered to be disclosed by the Court.

b. Service (within a suitable timeframe) of any further evidence by the appellant in response thereto.

c. Service of all OPEN and CLOSED evidence on any Special Advocate appointed (if applicable).

d. The listing of the substantive appeal hearing before the same constitution of the Court^[3] (the sequencing and timing of which will depend on a variety of factors including the nature and extent of the OPEN and CLOSED evidence and when it is to be served). [Note: the timing of any CLOSED hearing may need to be withheld from the appellant, for example if non-police witnesses are to be called.]

e. Filing by the respondent of a composite OPEN hearing bundle (ordinarily 7 days in advance of the hearing).

f. Exchange and filing of OPEN skeleton arguments for the substantive appeal and filing of an OPEN authorities bundle (ordinarily 7 days in advance of the hearing).

g. Filing of any CLOSED skeleton argument and CLOSED authorities bundle (including by the Special Advocate, if applicable) (ordinarily 7 days in advance of the hearing), subject to satisfactory security arrangements. [Note: the Court will additionally need to consider its own arrangements for provision of the composite OPEN hearing bundle to the lay members of the Court in advance of the appeal hearing. Any CLOSED material will only be provided to the lay members at Court pursuant to appropriate handling conditions.]

60. At the hearing of the substantive appeal, unless for good reason the court directs otherwise, the evidence for the chief officer is to be followed by the evidence for the appellant, and thereafter submissions made in the same order, subject to the arrangements required to be made for the holding of OPEN and CLOSED hearings. The Court should hand down OPEN and CLOSED judgments observing the same principles that apply to its PII ruling.

Note 1   The authorities recognise three classes of case: (i) cases in which a party seeking PII must give notice of its intention to do so and of the category of sensitive material in issue; (ii) cases in which disclosure of even the category of sensitive material would in effect be to reveal that which the party contends should not in the public interest be revealed (in which case the category need not be specified unless and until the court has heard the applicationex parte; (iii) highly exceptional cases in which revelation of even the fact that an ex parte application is being made would damage the public interest: see for example R v Davis (1993) 1 WLR 613 at 617E-H; R v H [2004] 2 AC 134 at [20].     [Back]

Note 2   Section 74(1) Senior Courts Act 1981 makes provision for the constitution of the Court on an appeal. While the judge may sit with up to four justices of the peace, it is suggested that two would be sufficient (and more pragmatic) in a firearms appeal. In Chief Constable of Essex Police v Campbell [2012] EWHC 2331 (Admin), the Court held at [36] that firearms appeals should only be heard by full-time judges.    [Back]

Note 3   Retaining the same constitution is highly desirable, if not strictly essential, having regard to the need to keep the relationship between the respective public interests under constant review as the case proceeds (see Wiley at 306E).    [Back]