The Chief Constable of Cambridgeshire Police, R (on the application of) v The Crown Court at Peterborough

A Crown Court hearing a firearms-licensing appeal must ordinarily be constituted with a judge and at least two justices of the peace. Where a timely objection is made, and the statutory exceptions do not apply, that requirement is a precondition to jurisdiction. A public interest immunity application must be determined using the three-stage Wiley test. The court must decide relevance, possible harm from disclosure, and then balance the competing public interests without treating a possible closed material procedure as altering that balance. Where the sensitive material is critical to resisting the appeal and PII is upheld, a closed material procedure will ordinarily be appropriate, subject to safeguards, gisting, special advocacy where necessary, continuous review, and open and closed judgments.

The Chief Constable sought judicial review of the refusal by HHJ Enright, sitting at Peterborough Crown Court on 18 March 2024, to uphold public interest immunity over closed evidence relied upon to resist Adrian Kimber’s appeal against refusal to renew his shotgun certificate under section 44 of the Firearms Act 1968. The Crown Court judge sat alone after discharging two justices of the peace, accepted the first two stages of the Wiley test, and considered that the balance favoured non-disclosure, but refused to permit reliance on a closed material procedure. The issues were whether the Crown Court was properly constituted, whether adequate reasons were given, whether the PII balancing exercise was properly conducted, and whether the procedure in Kingston had been followed.

1. Disposition. The application for judicial review succeeded on Grounds 1, 2 and 4. The decision was quashed and the PII application was remitted to the Crown Court for determination by a different judge sitting with two lay magistrates. The matter was to be expedited.
2. Constitution of the Crown Court. Sections 73 and 74 of the Senior Courts Act 1981, read with rule 4 of the Crown Court Rules 1982, require the Crown Court hearing an appeal to sit with the prescribed number of justices unless the statutory or procedural exceptions apply. Where objection is properly taken, section 74 constitutes the requirement as a precondition to jurisdiction. The judge should therefore not have sat alone. There was also a real possibility that the outcome would have differed if the application had been determined by a three-member tribunal.
3. PII and the Wiley balance. The court must determine whether the material is relevant, whether disclosure would harm the public interest, and, if so, whether disclosure should nevertheless be ordered after balancing the public interest in the administration of justice against that harm. The balance must be undertaken without reference to the subsequent possibility of a closed material procedure. The weight accorded to the competing interests depends on context. Firearms control engages a strong public interest, although the individual rights at stake must still be considered.
4. Closed material procedure. The procedure identified in Kingston was not followed. Once the Wiley balance favoured non-disclosure, the judge was required to give adequate reasons and address the next procedural stage. Where closed material is critical to the Chief Constable’s opposition, a closed material procedure would almost always be appropriate after the PII claim is upheld. Safeguards include consideration of disclosure by gist, full disclosure to the court, the public authority’s duty to identify points assisting the appellant, judicial testing of the closed case, independent review of PII, continuous review, possible appointment of special advocates, and open and closed judgments.

• Peterborough Crown Court: On 18 March 2024, HHJ Enright refused the Chief Constable’s PII application in the firearms appeal and declined to permit a closed material procedure.
• High Court (King’s Bench Division), Divisional Court: The judicial review claim succeeded on Grounds 1, 2 and 4. The Crown Court decision was quashed and the PII application remitted for redetermination by a differently constituted Crown Court.