Jaskeerat Singh Gulshan v The Lord Chancellor

A statutory defence to criminal liability for carrying a kirpan does not create a positive right of access to a court building. Court security authorities may impose access conditions under the Courts Act 2003, including maximum lengths, where the policy rationally addresses public safety and preserves a discretion for exceptional cases. A restriction on religious manifestation can be prescribed by law even when contained in guidance, provided it has a basis in domestic law and is accessible, foreseeable and sufficiently precise. The six-inch overall and four-inch blade thresholds were capable of satisfying proportionality under article 9(2). Article 14 therefore added nothing. Challenges to individual treatment should ordinarily proceed through an available private-law remedy under the Equality Act 2010 or Human Rights Act 1998, rather than judicial review.

The Claimant, an observant Sikh and barrister, was refused entry to Ealing Magistrates Court while wearing an eight-inch kirpan. The 2018 HMCTS Kirpan Guidance allowed a kirpan up to six inches overall and four inches in blade length, subject to a discretion for longer kirpans after consultation with the senior person onsite. He sought judicial review of the Guidance and of the security officers’ conduct. May J refused permission on the papers. Cavanagh J refused the renewed application on 10 March 2022. The Claimant sought permission to appeal, challenging the policy under the Criminal Justice Act 1988, public-law rationality, articles 8, 9 and 14, and the handling of the incident. The central issues were whether the criminal-law religious defence displaced building-access controls, whether the Guidance was lawful and proportionate, and whether the individual complaints had an adequate alternative remedy.

1. Permission refused. Underhill LJ, with Lord Burnett LCJ agreeing, refused permission to appeal against Cavanagh J’s refusal of permission to apply for judicial review. Evidence of revised Kirpan Guidance was admitted only to establish that new guidance existed; its lawfulness was not considered.
2. Criminal law and vires. Section 139(5)(b) of the Criminal Justice Act 1988 concerns criminal liability. It does not confer a positive right overriding the entitlement of those responsible for a public building to impose conditions of access. The vires for the Guidance came from the court-security powers in the Courts Act 2003. Sections 52 and 53 also authorised security staff to search persons entering court buildings and articles carried by them, including asking to see the kirpan.
3. Rationality and safety. The length restrictions were not arbitrary or irrational. A larger blade is potentially more dangerous, including because it may be seized and used by a third party. The absence of previous incidents did not remove the risk. Different policies adopted by other authorities, absence of consultation, and later review arrangements did not establish unlawfulness. The Guidance permitted shorter kirpans automatically and left longer kirpans to an exceptional discretion.
4. Convention rights. The interference with manifestation of religion was assumed. The requirement that a restriction be prescribed by law was satisfied because the policy had a basis in domestic law and was accessible, foreseeable and sufficiently precise. The residual discretion did not need to specify every possible exceptional circumstance: see Munjaz v United Kingdom (app. no. 2913/06), para 88, and R (Catt) v Commissioner of Police of the Metropolis [2015] UKSC 9, [2015] 1 AC 1065, para 11. The restriction pursued public safety and was proportionate under article 9(2). The article 14 claim therefore had no real prospect. The article 8 claim likewise failed because the same justification applied and there was no evidence that the Claimant had been prevented from attending court professionally.
5. Alternative remedy. Complaints about the officers’ conduct could be pursued in private-law proceedings under the Equality Act 2010 and/or section 6 of the Human Rights Act 1998, with declaratory relief and damages available in the County Court. That was an appropriate alternative remedy. It was unnecessary to determine the challenge under section 31(3C) of the Senior Courts Act 1981.

• Court of Appeal (Civil Division): Permission to appeal refused on 22 March 2023: [2023] EWCA Civ 306.
• High Court, Administrative Court: Cavanagh J refused the renewed application for permission to apply for judicial review on 10 March 2022.
• High Court, Administrative Court: May J refused permission to apply for judicial review on the papers. The date was not stated in the judgment.