Jaskeerat Singh Gulshan v The Lord Chancellor

The Court of Appeal refused permission to appeal against the Administrative Court's refusal to grant permission to apply for judicial review of HMCTS's Kirpan Guidance (version 11, 2018) and of the Claimant's treatment at Ealing Magistrates' Court on 8 April 2021. The court held that the power to exclude persons or require surrender of articles in court buildings derives from the Courts Act 2003 (sections 52–55A) and not from the Criminal Justice Act 1988 section 139; section 139 creates a criminal law defence but does not confer a positive right to entry to public buildings.

The court accepted that the Kirpan Guidance, which permits kirpans of up to six inches overall and blades up to four inches but allows a discretion to permit larger kirpans after consultation with the senior person on site, engages article 9 of the European Convention on Human Rights. However, the limitation was held to be "prescribed by law" and to pursue the legitimate aim of public safety; it was proportionate because it permits small kirpans as of right and leaves a residual discretion for exceptional cases. Discrimination and article 8 arguments had no real prospect of success. The court also upheld the Administrative Court's conclusion that, as regards the events of 8 April 2021, there was an alternative, more appropriate remedy in private law (including a county court claim for damages or declaratory relief) and that section 31(3C) Senior Courts Act 1981 considerations supported refusal of permission to apply for judicial review.

Background and parties

• The claimant, an observant Sikh and practising barrister for immigration and family work, attended Ealing Magistrates' Court on 8 April 2021 wearing a kirpan of eight inches and was refused entry by court security officers.
• The defendant was the Lord Chancellor, responsible for HMCTS and the issuer of the Security and Safety Operating Procedures Guidance (version 11, 2018) containing the Kirpan Guidance (permitting kirpans up to six inches overall and blades up to four inches, with a discretion for larger kirpans after consultation with the senior person on site).

Procedural posture

• The claimant sought judicial review challenging the lawfulness of the Kirpan Guidance and the manner in which security officers treated him on 8 April 2021.
• Permission to apply for judicial review was refused on the papers by May J; a renewed application was refused by Cavanagh J at a hearing on 10 March 2022.
• The claimant applied for permission to appeal to the Court of Appeal. An oral hearing was directed and was heard before the Court of Appeal on 9 February 2023; judgment was handed down on 22 March 2023 ([2023] EWCA Civ 306).

Issues framed

1. Whether the Kirpan Guidance was ultra vires or inconsistent with the Criminal Justice Act 1988 section 139.
2. Whether the Guidance violated Convention rights (article 9 and article 14), and, separately, article 8 rights relating to professional life.
3. Whether the Guidance was irrational or arbitrary.
4. Whether the conduct of security officers on 8 April 2021 breached rights and whether judicial review was an appropriate remedy for those events, given alternative remedies and the impact of Senior Courts Act 1981 section 31(3C).

Court’s reasoning and conclusions

• The court held that section 139 Criminal Justice Act 1988 deals with criminal liability and defences (including religious reasons for carrying a blade) but does not confer a right of access to public buildings; vires for exclusion and searches derive from the Courts Act 2003 (sections 52–55A).
• Differences between other jurisdictions (for example Scottish guidance) or the absence of a reported security incident involving a kirpan do not render the HMCTS restriction irrational. The court accepted that, as a matter of common sense, larger blades pose greater risk; the 2018 Guidance creating a bright-line limit with a residual discretion was a proportionate means to protect public safety and operational efficiency.
• The requirement that any interference with article 9 be "prescribed by law" was met: the Guidance has a lawful basis in the Courts Act 2003 and is sufficiently accessible and foreseeable for affected persons to regulate their conduct.
• Given the limited prospects of success on the public law challenges, and because the claimant’s complaints about the events of 8 April 2021 were suitable for determination by an alternative private law remedy (for example a county court claim for damages or declaratory relief), permission to appeal against the refusal to apply for judicial review was refused. The court admitted limited fresh evidence solely to establish that a new version of the Guidance had been promulgated but did not decide on the lawfulness of the new version.

The Court of Appeal refused permission to appeal (the application for permission to appeal is dismissed). The court held that the Kirpan Guidance is lawful: the power to exclude and search in court buildings derives from the Courts Act 2003, the Criminal Justice Act 1988 section 139 does not create a right to entry, the Guidance is "prescribed by law" for article 9 purposes and the six-inch rule with a residual discretion is a proportionate means to protect public safety. The claimant's complaints about the specific events of 8 April 2021 were more appropriately pursued by private law remedies and did not justify judicial review.

Permission to apply for judicial review was refused on the papers by May J. A renewed application was refused by Cavanagh J in the Administrative Court (King's Bench Division) at a hearing on 10 March 2022. The claimant sought permission to appeal to the Court of Appeal; an oral hearing was directed and took place before the Court of Appeal, which delivered judgment on 22 March 2023 ([2023] EWCA Civ 306) refusing permission to appeal.