Clarification of Approach to Public Interest Immunity/ Closed Material Proceedings

This article forms part of a short series considering recent developments in firearms explosives licensing law

In R. (on the application of Chief Constable of Cambridgeshire) v Peterborough Crown Court and Adrian Kimber (Interested party) [2025] EWHC 1452 (Admin), the Divisional Court issued a ruling on two issues:

• The correct composition of the Crown Court when hearing firearms licensing appeals; and
• The approach which ought to be taken when determining an application for Public Interest Immunity (“PII”) and Closed Material Proceedings (“CMPs”) in a firearms licensing context.

The case develops the Divisional Court’s earlier decision in R. (on the application of Commissioner of Police of the Metropolis) v Kingston-upon-Thames Crown Court [2023] EWHC 1938 (Admin) (“Kingston”). In that case the Divisional Court held the Crown Court had the power to conduct CMPs in firearms licensing appeals. It also issued guidance on how PII/ CMP applications should be dealt with.

The Facts

Mr Kimber had applied to renew his shotgun certificate. The Chief Constable refused that application. Mr Kimber appealed to the Crown Court, whereupon the Chief Constable made an application for PII as a precursor to a CMP.

The lower court granted the PII application but declined to conduct a CMP. The Chief Constable brought a judicial review against the lower court’s decision.

Ground 1: Absence of Wing Members

The lower court had decided to determine the Chief Constable’s application for PII/ a CMP in the absence of lay wing members. The Divisional Court accepted that this decision was unlawful.

Section 74 of the Senior Courts Act 1981 (“SCA”) states that:

“On any hearing by the Crown Court —”

(a) of any appeal;

the Crown Court shall consist of a judge of the High Court or a Circuit judge or a Recorder or a qualifying judge advocate who, subject to the following provisions of this section, shall sit with not less than two nor more than four justices of the peace”

The Divisional Court agreed that compliance with these provisions was a precondition for the Crown Court having jurisdiction. It follows that when hearing firearms/ shotgun licensing appeals the Crown Court must sit with at least two JPs (and that failure to do so, assuming an objection is made at the time, will render the decision liable to be quashed for want of jurisdiction).

Incorrect approach to PII/ a CMP

The court held that the lower court had adopted an incorrect approach to the Chief Constable’s application. It reasoned:

• The nature of the underlying decision is important when the court determines the three-stage test in R v Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274 (i.e. weighing up the harm to the public interest that would be caused by disclosing the sensitive material against the harm caused by limiting open justice).
• Kingston should not be read as importing a different test for the grant of PII vis a vis a CMP. Once a PII application is granted the next step is usually to conduct a CMP. As stated by the Divisional Court, “in a case […] where the CLOSED material is critical to the Chief Constable’s opposition to the appeal, a CMP would almost always be appropriate once the PII claim has been upheld” (at [37]).
• Where a CMP is conducted there are a number of safeguards available to protect the excluded parties’ Article 6 ECHR rights.
• It was important that the procedural road-map outlined in Annex 2 to Kingston is followed when dealing with applications for Public Interest Immunity (“PII”) in firearms appeals.

Conclusion

In summary, then:

• The Crown Court should sit with at least two JPs when deciding firearms licensing appeals.
• When determining an application for Public Interest Immunity / Closed Material Proceedings the court should follow the guidance provided in Kingston.
• There is no separate test for granting PII as opposed to a CMP.
• Applications for PII/ CMPs should be exceptional.

Charlotte Ventham KC is a leading specialist police practitioner who has considerable experience of cases involving PII and CMPs, having acted in many significant cases for the police and government involving issues of the utmost sensitivity. She contributed towards ‘National Security Law’ (OUP, 2024).

Conor Monighan regularly advises and represents Forces on PII/ CMP cases, both in a firearms context and more broadly. In Peterborough the Divisional Court described his “well founded” submissions as being presented with “clarity and economy”.