The Divisional Court in R (Mason) v (1) Winchester Crown Court (2) Chief Constable of Hampshire [2018] EWHC 1182 (Admin) has set out proper procedures to follow in appeals heard in the Crown Court concerning the refusal or revocation of firearm and shotgun certificates. This brings some structure to what has sometimes appeared to be the Wild West of shotgun hearings.
The court repeated that it was of the utmost importance that the tightest control was exercised over those who possessed firearms. Chief constables had to scrutinise applications for the grant and renewal of firearm and shotgun certificates, and also the possible revocation of such certificates, with particular care. The Crown Court, in turn, had to give careful and detailed consideration to any appeals arising from those decisions [44].
The rules of natural justice applied to such hearings. The rules of natural justice were likely to require that an individual was given reasonable notice both of the reasons for the decision, and the material upon which the Chief Constable reached any decision, together with any other material which the Chief Constable sought to provide to support the decision on appeal. This material was not be circumscribed by strict rules of evidence. Hearsay was, therefore, admissible, with issues going to its weight [45].
At the hearing of an appeal, the appellant had to be given the opportunity of correcting or contradicting such material. This did not give the right to cross-examine the witnesses providing the underlying evidence, rather than having the opportunity of providing contradictory or explanatory evidence [48].
The court went on to give guidance as to the procedure for an appeal. It was clearly appropriate for the evidence on behalf of the Chief Constable to be provided first, followed by the evidence on behalf of the appellant, with submissions to follow in the same order. As to the steps to be taken pre-hearing, the court stated that the appropriate course would be:
i. Service by the respondent upon the appellant and the Crown Court of a bundle containing the evidence and material relied upon to support the original decision within 28 days of the service of the appellant’s notice of appeal;
ii. Service by the appellant upon the respondent and the Crown Court of a bundle containing the evidence and material relied upon to support the appeal within 21 days of the service of the respondent’s bundle;
iii. The parties to serve upon the Crown Court a joint time estimate to be agreed between the parties, or in the absence of agreement, individual time estimates together with an explanation for the same, within 7 days of service of the appellant’s bundle;
iv. Skeleton arguments together with copies of any authorities relied upon to be exchanged and served upon the Crown Court at least 7 days before the hearing of the appeal;
v. The Crown Court to provide copies of the parties’ bundles, skeleton arguments and authorities to the members of the court at least 24 hours prior to the hearing of the appeal.
vi. At the hearing of the appeal, unless for good reason the court directs otherwise, the evidence for the respondent to be followed by the evidence for the appellant, and thereafter submissions made in the same order.
Commentary
All this is sensible stuff – although it does raise a few issues.
The most obvious is that there was only one party to the proceedings before the Divisional Court – the Claimant. Neither the Crown Court (as is to be expected) nor the Chief Constable (which is surprising) were represented. There being only one party attending the judicial review application, it falls outwith the category of case that can permissibly be cited pursuant to Practice Direction (Citation of Authorities) [2001] 1 WLR 1001. Paragraphs 6.1 and 6.2 states that applications attended by one party only may not be cited before any court unless it clearly indicates that it purports to establish a new principle or to extend the present law, taking the form of an express statement to that effect. There is no such statement in the judgment.
To be fair, the Practice Direction expressly does not apply to “the criminal courts” – but presumably does apply to the High Court (Administrative Division) and/or the Divisional Court. There seems to be no prohibition on its being cited in the Crown Court pursuant to Criminal Practice Direction XII D: Citation of Authority. Nevertheless, it is not as desirable for detailed guidance to be handed down in cases where only one party attends as opposed to where counsel appear on both sides.
The second issue is why the Court still finds itself in the position where it is necessary for it to state that hearsay evidence is admissible. Shotgun and firearms appeals are called civil proceedings but they are better termed administrative proceedings. The Crown Court’s civil jurisdiction traces back to the old quarter sessions. Most of their administrative functions were handed to county councils by Local Government Act 1888 section 3 and Courts Act 1971 sch 8 para 1. What was left, which included firearms certificate matters heard as part of the appellate jurisdiction of the quarter sessions, was transferred to the Crown Court by Courts Act 1971 section 8 and sch 1. In any event, the point on hearsay was stated over forty years ago in Kavanagh v Chief Constable of Devon and Cornwall [1974] QB 624, 631.
Finally, the pre-hearing steps are welcome – although, again, it is a bit surprising that the Divisional Court finds itself in the position of having to state them, there being no rules set out in regulations, a practice direction or statutory guidance. The only point potentially to take with the procedure is the part concerning closing speeches. In civil proceedings, unlike criminal proceedings, the party who bears the burden of proof goes last. It might be said that the Chief Constable bears no burden of proof in shotgun and firearm appeals hearings – such that this rule does not apply. One could, however, counter that the party who opens a civil case usually has the right to end it by having the last word.
Lest it be thought that this does not apply to civil matters in the criminal courts – it does. The Magistrates’ Courts Rules 1981 rule 14(6) provides that where a defendant and a complainant both address the court after the close of the evidence on the hearing of a civil complaint, the address of the defendant shall be made before the address of the complainant. No reason is given by the court here for reversing the order that would otherwise seem to be appropriate.
All in all, however, the judgment will be very helpful both to police solicitors and shotgun/firearm certificate appellants in setting out what is required from each in terms of pre-hearing procedure and in the manner in which the hearing is to be conducted. For the same reasons, it will also be helpful for Circuit Judges who come to hear such appeals, which fall outside the main business of Crown Court work and, therefore, most judges’ regular experience. If nothing else, it confirms at the very least that the Chief Constable ought to have the right to address the court at the conclusion (as opposed only to at the opening) of such proceedings.