Important new case regarding Closed Material Procedures in Firearms Licensing
Important New Case for firearms licensing
Nick Doherty appeared for the Appellant where the Metropolitan Police were applying to present evidence to the Crown Court in a firearms appeal without having to disclose it to the Appellant. The Divisional Court decided that this can now be done, but with strict rules and procedures to be followed, and only where it is absolutely necessary for the fair hearing of the appeal:
In the Crown Court, the police wanted to put material before the court which they did not wish to disclose to the Appellant. In criminal cases this is often referred to as public interest immunity, or PII. The difference from that to a firearms appeal is that in a criminal case the court ruled that the material does attract PII, the prosecution cannot put it before the jury, and in some cases have to drop the case. I argued in the Crown Court that there was no provision for this to be done, these appeals are a ‘statutory regime’ under the Firearms Acts. The Crown Court ruled in my favour. The police then appealed the Crown Court’s ruling to the Divisional Court of the Administrative Court. This is a ‘Judicial Review’.
Finding in favour of the Respondents, the Administrative Court quashed the Crown Court’s ruling and held that the police may apply for a closed procedure in a firearms appeal. This decision is based on the Statutory Guidance which chief officers and the Crown Court have to take into account when making licensing decisions. The Statutory Guidance has been in force since February 2021.
The court made it clear that “a CMP should only be considered where it is critical for the fair disposal of a firearms appeal” (§52). This is a significant ruling. Those who become involved in a firearms appeal where the police request a closed procedure need to study carefully the Annex to the judgement which sets out how the Crown Court should deal with such matters and gives guidance to the parties.
I had submitted to the Divisional Court there is a “qualified” or “partial” right to hold a shotgun certificate (§47). This is based on the fact that the 1968 Act uses the words the certificate ‘shall be granted unless ..’. This was rejected. They rules there is a balancing exercise to be carried out in a firearms appeal, the certificate holders have rights under Article 8 ECHR “to pursue a legitimate pastime, and sometimes an occupation”. Whereas Article 6 rights may “potentially” be engaged, these would “add little or nothing to the rights at common law” set out by Baker J in R (Mason) v Winchester Crown Court  1 WLR 3850. This is the first time the English courts have given guidance on the effects of the Human Rights Act in the context of firearms licensing.
For those involved in an appeal where a closed procedure is applied for by the police this case is essential reading.