Firearms licensing and Public Interest Immunity

Chief Officers bear the heavy responsibility of managing the licensing of shotgun and firearm certificate-holders within their respective force areas. A decision to refuse or revoke a shotgun or firearms certificate gives rise to a right of appeal to the Crown Court under s.44 of the Firearms Act 1968 (“the 1968 Act”). When it comes to resisting a firearms appeal, difficulties arise when a Chief Officer’s decision is based (in part or in whole) on material that attracts public interest immunity (“PII”). It is not difficult to imagine what that PII material might be: it could be information that, if disclosed, would put an individual in danger; it could be intelligence that reveals sensitive policing methods; or it could be material that, if revealed, would prejudice an ongoing criminal investigation.

When a Chief Officer has taken PII material into account when refusing or revoking a shotgun or firearms certificate, and the applicant or certificate-holder appeals that decision under s.44 of the 1968 Act, what is the Chief Officer to do? Material which is relevant to the refusal or revocation decision would ordinarily need to be disclosed to the appellant. On one hand, if the Chief Officer discloses the PII material, this would contravene the duty to keep that material confidential and could potentially engage rights under Article 2 and Article 3 ECHR (for example in the case of an informant who has provided information to the police on a confidential basis). On the other hand, not disclosing the PII material could result in the Chief Officer resisting the appeal with one hand behind his or her back. If the PII material is the sole or main reason for the refusal or revocation decision, and the Chief Officer cannot rely on that material in the appeal, the appellant is likely to succeed and be issued with a certificate, again potentially giving rise to Article 2 and Article 3 concerns.

Fortunately, there is another potential route. Following the Supreme Court decision in R (Haralambous) v St Albans Crown Court [2018] UKSC 1, it is now readily arguable that the Crown Court in a firearms appeal can take into account PII material which is not disclosed to the appellant, akin to a closed material procedure (“CMP”).

In Al Rawi v Security Service [2011] UKSC 34, the Supreme Court seemingly closed the door on non-statutory CMPs except for two “narrowly defined” exceptions:

• cases where “the whole object of the proceedings is to protect and promote the best interests of a child [and] disclosure of some of the evidence would be so detrimental to the child’s welfare as to defeat the whole object of the exercise” (at §63); and
• cases where the whole object of the proceedings is to protect a commercial interest, and where full disclosure would render the proceedings futile (i.e. cases in which a ‘confidentiality ring’ is commonplace) (at §64).

As a result of the decision in Haralambous, there has been a significant shift in the law. Haralambous concerned an ex parte application for a search warrant under s.8 of the Police and Criminal Evidence Act 1984 (“PACE”). That application was heard by a District Judge in the Magistrates’ Court and reliance was placed on material that was withheld from the subject of the warrant. One of the questions for the Supreme Court was whether, in proceedings for retention of unlawfully seized material under s.59 of the Criminal Justice and Police Act 2001 (“CJPA”), the Crown Court has jurisdiction to rely on material which – for public interest reasons – is not disclosable to the subject of the warrant. Lord Mance, delivering the Supreme Court’s unanimous judgment, held that the Crown Court could not fulfil its role without having regard to the PII material:

40.   Section 59(7) CJPA accordingly requires the Crown Court, when deciding whether to authorise retention, to put itself in the shoes of a hypothetical magistrates’ court being asked, immediately after the return of the property, to issue a fresh warrant with a view to seizure of the property. In the light of the answer given to issue (i), such a magistrates’ court would have been entitled on the hypothetical ex parte application made to it for such seizure to have regard to information placed before it by the constable which on public interest grounds could not be disclosed to others. The Crown Court could not fulfil its role without having regard to such information. But if it did so inter partes that would involve disclosing the information in a way which the public interest would preclude (and which the hypothetical magistrate would not do).

41.   The statutory scheme of PACE and the CJPA must have been intended to be coherent, and 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, to ensure that it could have regard to material which would have been put before the hypothetical magistrates’ court and withheld from disclosure there, without contravening the public interest by disclosing such material on the section 59 application.

Lord Mance concluded that it would be “self-evidently unsatisfactory, and productive potentially of injustice and absurdity, if the High Court on judicial review were bound to address the matter on a different basis from the magistrate or Crown Court…” (at §57). Ultimately, “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” (at §59).

Just a few months after the Supreme Court’s decision in Haralambous, the Court of Appeal in Competition and Markets Authority v Concordia International RX [2018] EWCA 1881 held that the same principles apply in the context of a warrant issued under the Competition Act 1998. King LJ (with whom Simon LJ and Gloster LJ agreed) held that excluding PII material which had been properly considered ex parte at first instance but withheld on public interest grounds during the inter partes challenge could lead to a validly issued warrant being quashed. This would cause an “awkward mismatch between the basis of the original and reviewing decisions” such that judicial review “must accommodate a closed material procedure” (at §26).

Can the same reasoning be applied in the context of a firearms appeal under s.44 of the 1968 Act? At first instance, the Chief Officer is exercising a quasi–administrative function. The Statutory Guidance for Chief Officers of Police on Firearms Licensing (“the Statutory Guidance”), which came into effect on 1 November 2021, sets out the factors to be taken into account when assessing the suitability of potential or existing certificate-holders. These factors include – unsurprisingly – previous convictions, cautions, arrests, evidence of threatening or abusive behaviour, domestic turmoil, association with criminals and non-compliance with firearms licensing conditions. Chief Officers are entitled to consider a very wide range of sources, including national and local intelligence systems, and counter terrorism data. If the applicant or certificate-holder wishes to challenge the Chief Officer’s decision, they may do so under s.44 of the 1968 Act, which provides that: (i) a firearms appeal in England and Wales is heard in the Crown Court; (ii) the appeal “shall be determined on the merits (and not by way of review)”; and (iii) 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.”

The reference to “any evidence or other matter” in s.44(3) implies a wide remit. On hearing a firearms appeal, the Crown Court Judge and the two lay Justices, in effect, sit in the shoes of the Chief Officer. They are not bound by the Chief Officer’s decision but – in the words of Denning MR in Kavanagh v Chief Constable of Devon and Cornwall [1974] QB 624 – “the Crown Court should have before it all the material which was before the chief officer of police.” Lord Denning recognised that “[i]f the Crown Court had to conduct its investigation on an entirely different basis from the basis upon which the chief constable proceeded, then there would really be two standards applying as to whether or not a certificate should be issued…”.

The recently issued Statutory Guidance supports the view that PII material can be deployed in an appeal before the Crown Court. Under the heading “reasons for refusal and revocation”, paragraph 3.50 of the Statutory Guidance states that:

“[i]n 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.” Further, under the heading “continuous assessment”, paragraph 4.5 of the Statutory Guidance states that “[r]eports 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.”

If the Crown Court can take into account PII material without this being disclosed to the appellant, it invariably gives rise to questions about fairness. An appellant may well ask how they can be expected to challenge a Chief Officer’s decision without knowing the basis upon which that decision was taken. However, such arguments of unfairness must be balanced against: (i) the overarching purpose of the licensing regime, which the Home Office Guidance on Firearms Licensing 2016 describes as “firearms are dangerous weapons and the State has a duty to protect the public from their misuse”; and (ii) the duty to keep PII material confidential.

In R (Mason) v Winchester Crown Court [2018] EWHC 1182 (Admin), Irwin LJ and Baker J reviewed the firearms appeal regime but did not come to a definitive view on whether an appeal under s.44 of the 1968 Act engages the right to a fair hearing under Article 6 ECHR (at §45 the Divisional Court went no further than finding that Article 6(1) “may well” be engaged). It is incumbent on the court to seek to mitigate the disadvantage which results from non-disclosure of PII material by considering whether relevant extracts of a document can be disclosed or a summary/gist made of the relevant effect of the material.

How would this process work in practice? The firearms appeal would initially proceed in the usual way. The appellant files a notice of appeal and the Crown Court lists the matter for mention. At that stage, the Chief Officer would inform the Court of his/her intention to make a PII application. This would require a second hearing at which the Crown Court will need to determine (i) whether, as a matter of legal principle, it can consider PII material which is not disclosed to the appellant; (ii) whether any measures should be taken to safeguard the appellant’s rights, such as the appointment of a Special Advocate; and (iii) whether the material in question does indeed attract PII. Provided the Crown Court is satisfied that the material in question does attract PII and that it can consider such material without it being disclosed to the appellant, the appeal can then be listed for final hearing. Both the appellant and Chief Officer would make disclosure (save that the Chief Officer’s PII material would only be disclosed to the Court). At the final hearing, the court will hear evidence from witnesses and legal submissions from counsel. Ideally, the “closed” part of the hearing during which the Court hears submissions and/or evidence on the PII material should be as short as possible. The court would then deliver its decision on the appeal, but without revealing the PII material. If it deems necessary, the court could hand down a separate closed judgment specifically addressing the PII material.

Such a procedure is by no means straightforward. As there is no express mechanism under the 1968 Act, and without direct authority on this point in the context of firearms appeals, it will be necessary – in every appeal where a Chief Officer seeks to rely on PII material – for the Crown Court to determine as a matter legal principle whether it can hold a procedure akin to a CMP. This gives rise to the real danger that different Crown Court benches will come to differing conclusions, resulting in uncertainty. It can only be hoped that, at some stage, the High Court will be asked to rule on this question, paving the way for clear guidance and more certainty for Chief Officers and appellants.