Chief Constable of Sussex, R (on the application of) v Chichester Crown Court & Anor

MR JUSTICE COLLINS: Mr Stoner, who is the interested party in this application, had a firearms certificate which covered a shotgun and a .22 rifle. Mr Stoner himself is a mature 52 year old. The Chief Constable of Sussex decided that this certificate should be revoked. Notice to that effect was given on 24th July 2001. The revocation was under section 30A of the Firearms Act 1968. That permits the revocation of a firearms certificate:

So far as the shotgun certificate was concerned, revocation of that is permitted in accordance with section 30C of the Firearms Act 1968, which provides that:

By section 44 of the Act there is a right of appeal to the Crown Court against such a revocation. Mr Stoner exercised that right. His appeal came before the Crown Court at Chichester on 26th April 2002. The appeal itself took, I gather, some time. On behalf of Mr Stoner evidence was given by him and by two witnesses. The chief officer of police called the Firearms Enforcement Officer, to whom the Chief Constable had delegated the responsibility of dealing with revocation of firearms certificates.

The Circuit Judge, who was His Honour Judge Michael Baker, was sitting with two justices. The result was stated in these terms:

Mr Hamblin, who appeared for Mr Stoner before the Crown Court and who has represented him before me, then made an application for costs, because Mr Stoner had had to fund his appeal himself. He initially raised the question whether he was entitled to apply for costs out of Central Funds. The fact is that he was not. There is power, however, to award costs against the Chief Constable, and indeed power to award costs in favour of a Chief Constable if an appeal is dismissed. The power is stated in general terms. It simply confers upon the Crown Court a discretion as to whether costs should be awarded or not. There is no guidance given in the legislation as to the matters which should be taken into account in awarding costs.

In the course of the argument about costs and the submissions made, the judge made this observation to counsel for the Chief Constable at the conclusion of his submissions. What he said was this:

I certainly agree with the learned judge that his observations did not help much in making a decision, because he had had put before him by Mr Downs two authorities which indicated the approach that should be adopted by a Crown Court in deciding whether to award costs in favour of an appellant who had successfully challenged the revocation or refusal of a firearm or shotgun certificate.

Perhaps the leading case in this regard, because it deals with a firearms certificate, is an unreported decision of the Divisional Court, Chief Constable of Derbyshire v Goodman and Newton, which is a decision of 2nd April 1998, CO/707/98. The leading judgment, indeed the only reasoned judgment, was given by May LJ. That was an appeal by way of case stated by the Chief Constable against whom an order for costs had been made. One of the points there made was that the question of costs was, as so often happens, dealt with in fairly short order at the end of a long day, perhaps it was a Friday, and the discussion was quite short. This also was a Friday in the Crown Court, but the discussion was not altogether short and certainly all the relevant matters were put before the learned judge.

What May LJ said was this:

May LJ then went on to consider the particular facts, and the submission that in the particular circumstances the Chief Constable had misconceived his objection because he had misconstrued the relevant subsection of the 1968 Act, which was in play in the circumstances of that case. May LJ indicated that it might be that it was something of a borderline case and that he could see some force in the submissions, but went on:

The other case that was put before Judge Baker was R v Merthyr Tydfil Crown Court ex parte the Chief Constable of Dyfed Powys Police, another unreported case decided on 9th November 1998, CO/3484/97. That was a licensing case in respect of a public house in Brecon. As a result of some incidents it was asserted that the licensee was not a fit and proper person. So her application for a licence was objected to. The objection was not upheld and costs were awarded. The Chief Constable sought judicial review of that decision.

The point was taken that different principles applied to the Crown Court than to the justices. That is not material in a case such as this because the court of first instance to which the appeal goes is not the justices but the Crown Court. So clearly the Crown Court is in precisely the same position as would be the justices in connection with the approach to costs. Lightman J in that case held that there was no difference in any event, even though the matter went first to the justices. The relevant part of what he said is at the bottom of page 4 of the transcript:

Mr Hamblin, as the transcript shows, started by relying on the concept of equality of arms under the Human Rights Act. It seems that what he was saying was that it was unfair that the Chief Constable should effectively automatically have his costs if he won and the appellant should not if he won, and that this was contrary to the Human Rights Act. That submission has not been pursued before me, understandably, because it is a submission that clearly lacks merit. The court has a discretion. It is proper to have regard to the duties placed upon the Chief Constable in the exercise of his functions in this respect.

He went on to submit that, as he put it, it may well be right that one could say it would be unreasonable to have formed the view or to have taken the action that the Chief Constable had taken in this case. He then went on to raise the point that it really was unfair on the appellant, who had little money, that he should be put in the position of having to pay a substantial sum in order to pursue what turned out to be a successful appeal. He really did not, beyond that, submit that this case fell within the principles in the cases to which I have already referred and which, as I say, were before the judge.

After retiring, the court came back and the judge dealt with the matter of costs in these words:

The Chief Constable was aggrieved at that order and wished to do something about it. The first step that he took was to apply to the justices to state a case. That he did on 16th May 2002 within the time permitted by the rules. That request was declined. On 21st May a letter was sent to the Chief Constable by the court stating:

However, that is what was done and so the Chief Constable had to decide what course to take. He had two options. One was to pursue the application to state a case by seeking a mandatory order requiring the Crown Court to state a case. The other was the possibility of seeking a judicial review of the decision itself. As the case of Goodman makes plain, there is a considerable advantage, on the face of it, in having a case stated. That advantage is that on an appeal by way of case stated it certainly would have appeared to the Chief Constable and those advising him from the report of that case that the court on appeal would be entitled to exercise the discretion in relation to costs afresh, and to decide for itself whether costs should be awarded. Whereas on an application for judicial review against the costs order, the court would be limited to deciding whether that decision was bad in law and would not be entitled to substitute its own view, unless persuaded that the decision was one which was perverse within the meaning of that term in the administrative law context.

What the Chief Constable decided to do was to seek a mandatory order that a case be stated. Unfortunately he delayed very substantially before making his application. In fact he delayed until 8th August 2002. That, of course, was just within the three-month period. It is perhaps pertinent to note that by then the three-month time limit had expired, so that an application for judicial review of the decision itself would have been out of time. But of course the application in relation to the refusal to state a case was just in time, in the sense that it was within the three months, although it was arguable that it was not made promptly.

However, on 23rd September Pitchford J granted permission to apply for judicial review. The result of that was that the grant of permission could not be revisited on the ground of delay, absent an application which could have been made to strike out the permission on the ground of delay. That does not mean that the question of delay is no longer in the least relevant, because section 31(6) of the Supreme Court Act 1981 still applies. That provides:

Permission having been obtained, on 15th October the Crown Court wrote to the solicitor for the claimant a letter in which it was said that when leave was granted to challenge a refusal to state a case, the court would usually advise the judge and justices to state a case. But it went on:

In fact, as I have said, the Crown Court indicated, very sensibly, in that letter that there would at least be a danger, no reasons having been given, that any given subsequently might be regarded as ex post facto reasoning.

In the light of that, the Chief Constable sought counsel's advice. Again, unfortunately, it perhaps was not dealt with as speedily as it ought to have been, but the net result was that on 12th December the claimant indicated that he proposed to seek an amendment of the claim to seek judicial review of the decision itself. That application was made before me because it was resisted by Mr Stoner, although agreed to, indeed it had been suggested by the Crown Court at the outset of these proceedings.

Mr Stoner's main ground of objection was that this application was way out of time; that it would have been out of time on 8th August; and that, effectively, the Chief Constable is being enabled to pursue a claim that he otherwise would not have been able to pursue. If it had been a case of simply seeking judicial review of the decision out of time, that argument would have been a powerful one. But the problem that Mr Hamblin faced was that permission had already been granted to seek a mandatory order to state a case, and to substitute a judicial review of the decision itself could not be contrary to his client's interests because it would result: (a) in a speedier and less costly decision on the issue; and (b), would mean that the court was approaching the question on a narrower basis on judicial review than it would have been if it had been case stated. Accordingly, there could be, in these special circumstances of this case, no objection, in my view, on the grounds that any injustice was occasioned to Mr Stoner in permitting the amendment.

Mr Hamblin was still able to argue his delay point in the context of section 31(6) on the basis that the original application on 8th August was made far too late in the day. He has put before me a case which is, no doubt, seared into his soul, R v Brighton and Hove Magistrates ex parte Clarke, a decision of the Divisional Court (consisting of Rose LJ and Laws J) of 6th March 1997, CO/1542/96. In that case the applicant was seeking judicial review of the court's decision to refuse him costs out of Central Funds when the prosecution had decided not to proceed with charges before the magistrate. Permission had been granted by Tucker J. So the court was dealing with a substantive application. But the court was concerned about the question of delay. The application in that case had been made just within the three-month period. The court had before it an affidavit from the justices, the effect of which was that because of the lapse of time they simply could not remember anything about the case, and therefore were not in a position to explain what had happened. The court went on to emphasise that Order 53 had to be observed and that applications had to be made promptly. This one had not and therefore on that ground they dismissed the application.

Mr Hamblin was indeed unlucky, because that decision is clearly wrongly reasoned and falls to be regarded as overruled by the decision of the House of Lords in ex parte A. But it may have been correct if section 31(6) had been applied. Once permission was granted, Order 53 dropped out of the picture and the only ground upon which delay became relevant was in the terms of section 31(6).

Mr Hamblin was asked to identify any substantial hardship, or substantial prejudice to his client's or any other person's rights, or any way in which to grant relief would be detrimental to good administration. He was, I am bound to say, hard pressed to provide any answer. Of course one recognises that there is a hardship to Mr Stoner in having to wait for his costs if he succeeds and in losing them if he fails. But that is not the sort of hardship which is material for the purpose of section 31(6). Material hardship is hardship occasioned as a result of the undue delay in making the application. Delay since September is not a matter which comes within section 31(6), since that is unfortunately the time that it has taken for the matter to be reached in the court lists. It is impossible to see that there is any detriment to good administration in the circumstances of this case. Nor, for the same reasons that I have already indicated in relation to hardship, can it possibly be said that there is substantial prejudice to the rights of any person.

In those circumstances, I regret to say that, although I accept that the matter could and should have been pursued more expeditiously, the delay is not, within the terms of section 31(6), delay which should be relevant in preventing relief being granted.

I come back then to the actual decision of the judge. He clearly should have given reasons. Indeed, the problem that arose in the Brighton case would have been avoided if reasons had been given. It seems to me that the time has now come, in the light of the development of the law, that reasons ought to be given by courts in relation to contested applications for costs. The reasons need not of course be in the least elaborate, but to state simply that "in the exercise of discretion we have decided to grant costs" is no reason at all. Here it was incumbent upon the judge to explain, at least in a sentence or two, why he had decided that the conduct of the Chief Constable was such as to trigger one of the grounds which the courts have stated are necessary before costs can be awarded. That he totally failed to do.

The absence of reasons might in itself, in an appropriate case, be a good ground for quashing a decision. But it seems to me that in the context of this case it would be wrong for me to quash purely on that ground, unless I were also persuaded that the decision was one which could not reasonably have been reached. The effect of quashing on the basis of a lack of reasons would be to send the matter back to be reconsidered by the Crown Court. If the Crown Court in reality could not have reached a decision other than that costs should not be awarded, that would be a pointless exercise. If, on the other hand, it would have been open to the Crown Court to have decided on the facts that costs should be awarded, it is common sense that that is what they would be likely to decide. Thus, again, it would be a pointless exercise and would simply add to costs if the matter were to be sent back.

The reality is that, in particular in firearm cases, the Chief Constable has a very responsible job. It is vital that careful watch is kept upon the granting and possessing of firearms certificates. We are all only too well aware of the problems which have arisen in relation to misuse of firearms in recent times. Thus, as I say, the Chief Constable's responsibility is an onerous one. He has, of course, to act in good faith and he has to act reasonably and he must not misconceive the relevant provisions. But provided he acts in that way, it would be quite wrong for him to have to consider whether, if he did act in what he regarded as a proper fashion, costs might be awarded against him. That would be to inhibit his actions, which are there in the public interest. If he receives credible information which reasonably leads him to believe that within the meaning of the relevant sections of the Firearms Act the revocation should be made, then he should be able to do that. It is wholly correct, in my view, that he should not fail to exercise his powers if there are good grounds in his view for him to do so. He had certain information in the circumstances of this case. I have not had put before me in any detail the material which was before the Chief Constable and was before the court. It perhaps would have been better if I had. Certainly Mr Hamblin is entitled to make the point that since the claimant is asserting that the decision of the Crown Court was one which should be quashed, then it is up to him to put all the relevant material before the court.

However, what I do have is some indication given in a document which is described as a chronology as to what broadly was relied on. It was said that in August 1997 an air gun, I think it was, was found to be kept insecurely and there is reference to a shotgun apparently being in the corner of a room. That is a matter that was referred to by the judge in his observations on allowing the appeal.

There was an allegation which was denied that in July 1998 he had had a shotgun to threaten his children. There was a visit by an installation engineer for some double glazing, it would seem, in September 2000. He was seen to have been abusive and aggressive and concern was expressed by the housing association manager, presumably of the premises in which he lived, that there seemed to be an attitude that he was unwilling to accept the visits of strangers. That again was denied.

In February 2001 there was a visit to the home by a detective constable, who reported that he found the home to be in a 'state' and that the appellant was unpredictable and aggressive.

There was then an interview by the Firearms Enforcement Officer on 17th April 2001. The inference that I drew, and I understand that this is correct, is that essentially it was that last incident -- that is to say the visit of DC Oliver -- that triggered the decision to think in terms of revocation of the certificates. The appellant at interview essentially denied any of the specific matters that were laid against him, and disputed that he was in any way unfitted to continue to have the certificates.

On that material, as it seems to me, it could not conceivably be suggested that the Chief Constable was acting unreasonably, let alone wholly unreasonably, in deciding that revocation was the right course of action. It was on that that the appeal was to be resisted.

Unfortunately, Detective Constable Oliver sustained an injury very shortly before the hearing, I gather in fact on the day before. Although it had been anticipated that he would be called to give evidence of primary fact in relation to what he observed, he could not attend court because of his injury. The decision was made that notwithstanding his absence, an adjournment would not be sought and the appeal should continue. It is right to say by then there had been a considerable delay since the revocation in September 2001. It is perfectly understandable that it should have been considered that it would not be right to seek any further delay, because of course in the meantime the appellant was without his certificate.

However, that meant that the only evidence that could be given was given by the Firearms Enforcement Officer. His evidence was all hearsay, other than the interview. That did not make it inadmissible, because the strict rules of evidence do not apply to these proceedings. The Crown Court is entitled to have put before it all the material that was before the Chief Constable or his deputy in deciding whether or not to revoke the certificate.

The appellant's side had called two witnesses. It is clear from what the judge said that those were impressive witnesses. Indeed, the judge made it clear that the court relied upon them. Their evidence, which went largely to the character of the appellant -- although in the case of his wife, who was one of them, no doubt went to the allegation that he had threatened his children with the shotgun -- was obviously highly relevant evidence in relation to the decision whether Mr Stoner should be permitted to continue to have his certificates. It would have been open to Mr Stoner, or those advising him, to have served statements of those witnesses upon the Chief Constable and to have invited the Enforcement Officer to make enquiries and to investigate. It may well be that had the enforcement officer had that information and been able to investigate it, he might have reached a different conclusion. I know not. It might be that in those circumstances it would have been possible to have indicated well in advance that the appeal would not be contested.

I am not seeking to criticise Mr Stoner or those representing him for not having submitted that evidence in advance. But the fact is they did not, and the result was that it was not until the day of the hearing that that material was brought to light.

In all the circumstances, Mr Stoner submits that it was wrong and unreasonable to continue to resist in the knowledge that Detective Constable Oliver was not going to be able to give evidence. But as I pointed out in the course of argument, that would have made no substantial difference to the costs which had already been incurred in preparing for the case and in briefing counsel and in the requirement to attend court in order to have the matter disposed of. So the question is whether there was any unreasonableness in the decision to revoke and in the decision to seek to contest the appeal. The answer, in my view, is that there was no possible or conceivable unreasonableness found in that decision.

Judge Baker, as I have said, indicated in terms that it was his view, and he thought of his colleagues, that the Chief Constable could not be criticised for the approach that had been taken. At no stage was it put to Mr Downs by the judge that he was concerned that there was some unreasonableness. The judge in reaching his conclusion, although he had undoubtedly the authorities, made no reference to them and made no reference to the correct approach to the exercise of his discretion. It seems to me, in all the circumstances, that in the light of what the judge said, and in the light of what I know about the material that was available to the Chief Constable, it would be quite impossible to say that his conduct fell within the criteria which govern the exercise of discretion in cases such as this.

It seems to me that in principle, too, there is no injustice in a system that means that unless there has been some what I will broadly call misconduct on the part of the Chief Constable, an applicant should not be entitled to his costs.

Only those who are fit and proper persons to be able to hold such a certificate can hold one. If the Chief Constable receives information which persuades him that the relevant sections dealing with revocation apply, then it must be right, in the public interest, that he should act. It is in the public interest to ensure that there is a proper control.

The matter then goes to the court, and it is for the court to decide, on the evidence put before it, whether the Chief Constable's view was one which was correct or not. If the Chief Constable reasonably comes to the conclusion that there are grounds to revoke a certificate and he can maintain that view before the court, then, as it seems to me, there can be no conceivable injustice in the appellant not being able to recover his costs, even though he succeeds in persuading a court that the Chief Constable's view was not correct, provided the Chief Constable is acting in a way which is not to be regarded as amounting to misconduct within the meaning of the cases to which I have referred.

In all those circumstances, I am satisfied that this decision by Judge Baker cannot stand and therefore it must be quashed. The result of that will be that the order made is set aside and the Chief Constable succeeds in this application.

MR DOWNS: My Lord, I do not propose to make an application for costs.

MR JUSTICE COLLINS: No, I rather assumed that.

MR DOWNS: The remedy was the clarification. I am very grateful, my Lord.

MR JUSTICE COLLINS: When it comes to the transcript, I will tidy up particularly that last bit, because I am well aware of course that the burden is on the Chief Constable to show on the balance of probabilities that the revocation is justified. Nothing I have said, I think, did gainsay that or certainly was not intended to. But I will tidy that up when I am correcting the transcript.

MR HAMBLIN: My Lord, may I just raise one issue?

MR JUSTICE COLLINS: Yes.

MR HAMBLIN: As you know, Mr Stoner has the benefit of a public --

MR JUSTICE COLLINS: Yes, you can have the necessary order if that is what you want.

MR HAMBLIN: I believe it is now for legal aid taxation.

MR JUSTICE COLLINS: No, it used to be "legal aid taxation". It is all much longer now.

MR HAMBLIN: I have just revealed my age.

On that final point, not to deal with costs, my Lord used the phrase "fit and proper". I am just wondering whether in fact the phrase is "unfitted".

MR JUSTICE COLLINS: That is why I said I wanted to tidy that up.

MR HAMBLIN: I often wonder whether the word really exists, but there it is. It should be "not fit", but unfitted --

MR JUSTICE COLLINS: You are quite right, Mr Hamblin. I pray in aid the lateness of the hour.

MR HAMBLIN: But it is not Friday, say the Bar together.

MR JUSTICE COLLINS: But fortunately one can correct transcripts. Thank you.