Remi Reichhold successful in judicial review concerning the availability of closed material proceedings in firearms appeals


The Divisional Court (Sharp PKBD & Sir Stephen Irwin) has handed down judgment in a judicial review challenge concerning the availability of non-statutory closed material proceedings (“CMP”) in firearms appeals: Commissioner of Police of the Metropolis v Crown Court at Kingston-upon-Thames [2023] EWHC 1938 (Admin).

The Metropolitan Police Commissioner is responsible for the grant, renewal, variation and revocation of all firearm and shotgun certificates within Greater London (excluding the City of London). If the Commissioner refuses to grant or renew a certificate, or revokes a certificate, the applicant/certificate-holder may appeal that decision to the Crown Court. In this case, the appellant’s shotgun certificate was revoked. At the appeal in the Crown Court, the Commissioner sought to rely on sensitive material which was withheld from the appellant on grounds of public interest immunity. The Crown Court ruled that the Commissioner could not have recourse to a CMP in relation to evidence that may be held to attract public interest immunity. The Commissioner challenged the Crown Court’s ruling by way of judicial review.

Finding in favour of the Commissioner, the Divisional Court quashed the Crown Court’s ruling and held that a chief officer of police may have recourse to a CMP in a firearms appeal. Parliamentary authority for a CMP stems from the recently issued Statutory Guidance on Firearms Licensing, which chief officers and the Crown Court have both been directed to “have regard to” (s.44(3A) & s.55A of the Firearms Act 1968).However, the Divisional Court cautioned that “a CMP should only be considered where it is critical for the fair disposal of a firearms appeal” (§52). Appended to the judgment is a schedule of procedural steps to be adopted in the event that a CMP is required, proposed by the parties and endorsed by the Divisional Court.

Of particular significance to firearm licensing more generally, the Divisional Court rejected the contention that there can be construed a “qualified” or “partial” right to hold a shotgun certificate (§47). As to the balancing exercise to be carried out at a firearms appeal, the Divisional Court held that 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” articulated by Baker J in R (Mason) v Winchester Crown Court [2018] 1 WLR 3850. Noting that the firearms licensing regime is “intended to protect the public from serious harm or death: rights under Art 2 and 3”, the Divisional Court held that the balance of rights in a firearms appeal places the rights of individual certificate holders “even farther down any hierarchy of rights” (§49). This is the first time the High Court has provided guidance on the balancing of ECHR rights applicable to the firearms licensing regime in England and Wales.    

Remi Reichhold of 11KBW acted for the Commissioner of Police of the Metropolis, led by Charlotte Ventham of 5 Essex Court.