Commissioner of the Police of the Metropolis, R (on the application of) v Crown Court at Kingston-Upon-Thames

A Crown Court hearing an appeal under section 44 of the Firearms Act 1968 may infer jurisdiction to use a closed material procedure where the statutory scheme and statutory guidance make that procedure necessary to give effect to Parliament’s intention. A mere mismatch between material considered by an executive decision-maker and material available to the reviewing court is insufficient. The jurisdiction is exceptional and should be used only where critical to the fair disposal of the appeal. The ordinary starting point remains the procedurally fair approach identified in R (Mason) v Winchester Crown Court. Public interest immunity, disclosure, open and closed judgments, and any special advocate appointment must be addressed separately and proportionately.

The Commissioner challenged a preliminary ruling of Kingston-upon-Thames Crown Court dated 14 February 2022. The Crown Court had held that it lacked power to permit a closed material procedure in an appeal against revocation of a shotgun certificate under section 44 of the Firearms Act 1968.

The revocation had relied significantly on sensitive material which could not safely be disclosed to the certificate holder. The statutory scheme required the chief officer and the Crown Court hearing the appeal to have regard to statutory guidance directing the consideration of wide-ranging intelligence and other information. The central issue was whether that scheme permitted the Crown Court to consider such material in a closed procedure.

1. The claim was allowed. The Crown Court’s preliminary ruling was quashed and the matter was remitted for the firearms appeal to be heard.
2. The starting point was Al Rawi and others v Security Service and others. The ordinary common-law rule is that a court cannot deny a party access to material relied on against that party without proper statutory or exceptional justification. But the categories in which a closed procedure may be permissible are not exhaustive.
3. Bank Mellat, HM Treasury (No 2), R (Haralambous) v Crown Court at St Albans and Competition and Markets Authority v Concordia International RX showed that jurisdiction may be inferred where necessary to make sense of a statutory scheme. In particular, the relevant scheme may require a court to review or determine a decision made on a materially different evidential basis.
4. Ramoon v Governor of the Cayman Islands and another established an important limit. It is not enough that an executive decision-maker was entitled to consider undisclosable material. A simple mismatch does not itself justify judicial creation of a closed procedure. The present case was materially different because Parliament had required the Crown Court to have regard to statutory guidance which directed the consideration of a wide range of intelligence and other information.
5. The combined effect of sections 44 and 55A of the Firearms Act 1968, together with the guidance, meant that the Crown Court had jurisdiction to use a closed material procedure where necessary. Otherwise the court could be unable to give effect to Parliament’s clear intention that it have regard to relevant guidance and to material central to the licensing decision.
6. The jurisdiction did not make closed proceedings routine. The approach in R (Mason) v Winchester Crown Court remained the starting point. A closed procedure should be considered only where critical to the fair disposal of the appeal, and the respondent must first consider whether the appeal can properly be resisted without relying on sensitive material.
7. Any public interest immunity application must be determined separately. Open material, redactions and gists should be maximised. A special advocate may be appointed where clearly justified, but the court should not impose a rigid label that appointment must be exceptional. The recommended procedure in Annex 2 was endorsed.

The judicial review challenged a preliminary ruling of Kingston-upon-Thames Crown Court dated 14 February 2022. The Divisional Court quashed that ruling and remitted the firearms appeal for hearing.