R (Mason) v Crown Court at Winchester & Anor [2018] EWHC 1182 (Admin)

R (on the application of Antony Crispin Mason) v The Crown Court at Winchester & Chief Constable of Hampshire [2018] EWHC 1182 (Admin) was a decision of the Divisional Court (Lord Justice Irwin and Mr Justice Jeremy Baker) which quashed the decision of His Honour Douglas Field sitting with two Magistrates at Winchester Crown Court on 19 May 2017 dismissing Mr Mason’s appeal against the revocation of his Firearm and Shotgun Certificates. The appeal was re-heard before a differently constituted court on the ground that the procedure adopted at the original hearing infringed the rules of natural justice and had prevented the appellant from properly challenging the case against him.

Mr Antony Crispin Mason had held both a firearm and a shotgun certificate for many years. On 2 October 2007 police attended his matrimonial home after Mrs Mason complained that the claimant had struck her to the face and grabbed her around the throat. Photographs were taken of swelling to Mrs Mason’s right cheek and she provided a witness statement detailing the alleged assault, together with details of two previous alleged assaults, the first being an incident when the claimant dragged Mrs Mason from a motor car and threw her into some nettles, and the second when he threw her down the stairs and struck her in the face. Mrs Mason declined to support a prosecution. The Crown Prosecution Service took no further action and the Chief Constable of Hampshire decided not to revoke the claimant’s certificates but issued a written warning on 2 November 2007.

Between 2 November 2012 and 8 July 2015 the police received four complaints concerning a dispute over dog walking which had arisen between the claimant and one of his neighbours, Judy Venables. Initially this had involved two complaints by Mrs Venables that the claimant had been verbally aggressive towards her, whilst latterly there were counter-allegations that they had barged into one another. In the absence of independent evidence the police took no further action against either of them. Divorce proceedings were commenced in February 2016 and a decree absolute was granted on 28 March 2017. On 7 December 2016 the police were called to the matrimonial home by Mrs Mason who complained that the claimant had turned up without notice and was verbally aggressive towards her, as a result of which she had locked herself in one of the bedrooms. She also complained that over the course of the previous year the claimant had deliberately barged into her on about four occasions and told PC Wardell that, although she had not previously disclosed this matter to the police, in about 2003 the claimant had pinned her down and rubbed his boot in her face. PC Wardell requested that the claimant voluntarily surrender his certificates, which he declined to do. On 8 December 2016 the Chief Constable revoked the claimant’s firearm and shotgun certificates, stating after careful consideration of all the information available including the alleged violent behaviour that the claimant could no longer be permitted to possess the firearms, shotguns and ammunition without danger to public safety and the peace. The claimant served notice of appeal on 13 December 2016 and provided a bundle of documentation in support. This included a witness statement denying having previously assaulted his ex-wife, providing innocent explanations for the incidents on both 2 October 2007 and 7 December 2016, and explaining that on 22 November 2016 he had removed two of his weapons from the matrimonial home and secured them with a registered firearms dealer.

At the hearing of the appeal the claimant was represented by Mr Onslow of counsel, who had prepared written submissions dated 18 May 2017 reiterating much of what was contained in the previously served bundle and laying emphasis on the fact that the claimant had held both certificates for many years, was a respected member of the shooting community, and had always sought to act responsibly. At the outset of the hearing, HH Douglas Field explained to the parties that the court was not there to conduct a case concerning assault in a domestic context or to determine the dispute with Mrs Venables but to take a general view of the history of the matter and to find whether or not the appeal should be allowed and the order of revocation should be set aside. Neither counsel objected to this approach. Mr Moores of counsel appeared for the interested party and called James Laws, PC Wardell, and Anthony Hill. In the course of the claimant’s examination in chief, HH Douglas Field told Mr Onslow that he needn’t ask about the history of events with Mrs Venables and that he should instead conclude by asking the claimant a compendium question summing up what his case was. As a result of this invitation Mr Onslow asked a short series of leading questions, which included asking whether the claimant had ever struck Aundrea Mason or deliberately barged into any other person, to which the claimant replied in the negative. After the claimant had finished giving evidence, HH Douglas Field stated that the makers of the statements would not be cross-examined, in particular about Mrs Venables, and that their evidence was going to be considered by the court, adding that the court fully understood the appellant’s case. Mr Moores made submissions to the court, in which he acknowledged that the situation on the ground had altered since the revocation decision had been made but stressed that the claimant had been warned about his conduct in 2007, and that there was evidence of violence having occurred since then.

After retiring to consider their decision HH Douglas Field and the two Magistrates dismissed the appeal. HH Douglas Field stated that a number of criticisms made of the claimant would be put to one side, including the claimant’s interaction with Mrs Venables, but described the evidence relating to the incident on 2 October 2007 as compelling, as was the evidence of the previous alleged violence related by Mrs Mason to PC Wardell on 7 December 2016. He noted that Mrs Mason’s witness statement dated 2 October 2007 mentioned previous incidents of violence by the claimant, and her most recent account to PC Wardell included mention of a previous act of violence relating to the use of one of the claimant’s boots. HH Douglas Field concluded that rather than receiving a warning letter in 2007 the claimant’s certificates should have been revoked then. Although the court took into account the fact that the former wife resided in the matrimonial home and the appellant rented separate premises and had contact with his children, the court concluded that the claimant was a danger to the public safety and the peace and dismissed the appeal.

Permission to apply for judicial review was granted on renewal by Stuart-Smith J on the following grounds: the judge, having expressed at the outset of the hearing the aim of taking a general view of whether revocation should be set aside, curtailed and encouraged the curtailment of the evidence in such a way that evidence which would have been relevant to the decision-making process was not given, leaving Mr Mason to complain afterwards that he had not been able to give his account of matters upon which the court determined the appeal; the judge did not invite any submissions on behalf of the appellant at the close of the evidence saying simply that the court fully understood his case, but did invite and hear submissions on behalf of the respondent; and on returning to court to give reasons and the decision, and before doing so, the judge did not invite any submissions on behalf of the appellant about matters which, as it transpired, were crucial to the decision against him.

Mr Justice Jeremy Baker reviewed the statutory framework governing the grant, renewal and revocation of firearm and shotgun certificates under sections 27, 28, 30A and 30C of the Firearms Act 1968. He considered the relevant case law, including Ackers & others v Taylor [1974] 1 WLR 405, in which the Divisional Court held that the term “danger … to the peace” in section 30A(2)(b) of the Firearms Act 1968 was not limited to a risk of violence emanating from the possession of the firearm being established against the holder of the certificate but was of much wider scope. Ashworth J stated that the best approach was to regard the subsection as forming part of the equipment given to police officers for the preservation of good order in public. Mr Justice Jeremy Baker also considered Spencer-Stewart v Chief Constable of Kent (1989) 89 Cr App R 307, in which the court stated that the danger to the peace which must be considered must be a danger to the peace involving the use of a shotgun. Bingham LJ stated that there was no artificial or chronological restriction to be read into the subsection as to the facts which are properly to be considered. Mr Justice Jeremy Baker further referred to Germain [1991] 156 JP 109, in which Stuart-Smith LJ explained that what is necessary is that the conduct of the holder of the shotgun certificate should be such that the chief constable has grounds for believing that when the holder is using or in possession of his shotgun he may behave in such a way as to present a danger to the public or a danger to the peace. Mr Justice Jeremy Baker noted the decision in The Chief Constable of the Essex Police v Donald Campbell [2012] EWHC 2331 (Admin), in which The President of the Queen’s Bench Division stated that it is in the overwhelming public interest that the tightest control is exercised over those who possess firearms and that it is of the greatest importance that when a Chief Officer of Police decides that a Firearm Certificate should be revoked on the basis that the person is not fit to hold that licence any appeal requires the most careful and detailed consideration.

In relation to the nature of the evidence which may be taken into account by the chief officer and the court and the procedure to be adopted by the court on appeal, Mr Justice Jeremy Baker considered Kavanagh v Chief Constable of Devon and Cornwall [1974] 2 WLR 762, in which the Court of Appeal held that neither the chief officer nor the court was bound by the strict rules of evidence but was able to take into account hearsay and other relevant material. Denning MR explained that the Crown Court may receive any material which is logically probative even though it is not evidence in a court of law, and that hearsay can be permitted where it can fairly be regarded as reliable, but that the party concerned must be given an opportunity of correcting or contradicting what is put against him. Mr Justice Jeremy Baker also referred to the Home Office Guide on Firearms Licensing Law, which was last updated on 1 April 2016 and provides particular guidance on the potential relevance of violence within the domestic context.

Mr Onslow submitted on behalf of the claimant that because of the understandably restrictive nature of the Chief Constable’s discretion to permit individuals to hold firearm and shotgun certificates, and in view of the fact that the decision will be made administratively, this makes the hearing of any appeal all the more important, as it will usually be the first time that an individual will have an opportunity to be heard in person. He acknowledged that the type of evidence and other material which the Chief Constable and the court is entitled to take into account is not circumscribed by the strict rules of evidence, but submitted that the rules of natural justice apply, and that at the appeal hearing this includes the appellant knowing the evidence he must meet and being given the opportunity to do so. He submitted that the conduct of the hearing was unfair. He pointed out that at the beginning of the case HH Douglas Field stated in terms that the court was not there to conduct a case concerning assault in a domestic context, but then at the conclusion of the appeal the reasons which he provided for the court’s determination were based upon the allegations of domestic violence. He pointed out that in the meantime, the court had indicated to him that all that was required was a compendious question to be put to the claimant summarising his case, and that at the conclusion of the claimant’s evidence, and in contrast to what was said to Mr Moores, he was told that no submissions would be required from him. Mr Onslow informed the court that the clear impression which he gained from the procedure adopted by the court during the hearing was that the court had determined the appeal in the claimant’s favour.

Mr Justice Jeremy Baker held that the rules of natural justice will apply in the Crown Court and are likely to require that an individual is given reasonable notice both of the reasons for the decision sought to be impugned, and the material upon which the chief constable reached the decision, together with any other material which the chief constable may seek to provide to support the decision on appeal. This material will not be circumscribed by strict rules of evidence, provided the chief constable, and likewise the court, gives due allowance to the fact that hearsay evidence and other material may attract less weight. Thereafter, as was pointed out by Denning MR in Kavanagh, at the hearing of the appeal the individual must be given the opportunity of correcting or contradicting this material. Although this does not mean that the individual has to be given the chance to cross-examine the witnesses providing the underlying evidence, it does require that the individual is given the opportunity of providing contradictory or explanatory evidence. Mr Justice Jeremy Baker accepted Mr Onslow’s submission that this is a particularly important aspect of the appellate procedure, as it may be the first time that the individual will have had the opportunity of being heard in person. He held that an objectively fair hearing is unlikely to be achieved if a party against whom an appeal is determined has not been given the prior opportunity of making submissions to the court.

Mr Justice Jeremy Baker held that the court was properly concerned from the outset that valuable time and resources were not unnecessarily wasted upon matters which it considered were likely to be extraneous to the central issues in the appeal, and may well have been entitled to have limited the exploration of the full circumstances surrounding the claimant’s interaction with Mrs Venables. However, the difficulty was that this limitation was also sought to be applied to the allegations of domestic abuse which not only appear to have been of central importance to the interested party’s decision to revoke the claimant’s certificates, but as it transpired were central to the court’s own determination of the appeal. Although the court had before it the claimant’s witness statement, the court’s further intervention during the course of his evidence in chief, effectively precluded the claimant from providing details both of the former of these two incidents, and of the other allegations of domestic violence which had been made by his ex-wife, beyond a bare denial in reply to the compendious question which had been recommended by the court. Mr Justice Jeremy Baker held that it was understandable that the claimant may have felt aggrieved by the fact that the court considered these allegations to be of central importance to its determination, a matter which was compounded by the fact that his counsel had not been called upon to make submissions at the conclusion of the evidence. He held that these feelings and beliefs were justified by the procedure adopted by the court in this case, in that the procedure did have the effect of preventing the claimant from having the opportunity of correcting and contradicting the issues which were central both to the original decision made by the interested party and the subsequent determination of the appeal. This resulted in insufficient adherence being given to the requirements of a fair hearing of the appeal and would require the Crown Court’s determination to be quashed and for a further hearing of the appeal to take place before a differently constituted court. Mr Justice Jeremy Baker added that the court had not considered the underlying merits of the claimant’s appeal, beyond the fair trial issues raised before it, and that the claimant should be under no illusion that on the re-hearing of

Spencer-Stewart v Chief Constable of Kent [1989] 89 Cr App R 307
Dabek v Chief Constable of Devon and Cornwall [1991] 155 JP 55
Chief Constable of Essex v Germain [1991] 156 JP 109
T. A. Miller Ltd. v. Minister of Housing and Local Government [1968] 1 W.L.R. 992
Ackers & others v Taylor [1974] 1 WLR 405
The Chief Constable of the Essex Police v Donald Campbell [2012] EWHC 2331(Admin)
Kavanagh v Chief Constable of Devon and Cornwall [1974] 2 WLR 762

R (Commissioner of the Police of the Metropolis) v Crown Court At Kingston-Upon-Thames [2023] EWHC 1938 (Admin)