Gulshan v Lord Chancellor

Factual and Procedural Background

The Claimant attended a Magistrates Court to support a relative, not in his professional capacity as a barrister. The Claimant, an observant Sikh, wore a kirpan, a small curved knife, in accordance with his religious beliefs. Court security officers, empowered by sections 52-55A of the Courts Act 2003 and guided by the 2018 HMCTS Security and Safety Operating Procedures Guidance ("the Kirpan Guidance"), regulate the carrying of knives into court buildings. The Kirpan Guidance permitted kirpans up to six inches in length overall, with a blade no longer than four inches, allowing discretion for longer kirpans after consultation with a senior person onsite ("SPOS"). The Claimant wore an eight-inch kirpan and was denied entry to the court. He alleged unreasonable and disrespectful treatment by officers, which the Defendant disputed.

The Claimant initiated judicial review proceedings challenging the lawfulness of the Kirpan Guidance and the treatment he received. Permission for judicial review was initially refused by May J and subsequently by Cavanagh J. The Claimant sought permission to appeal that refusal. An oral hearing was directed due to issues concerning whether the claim was academic and the application of section 31(3C) of the Senior Courts Act 1981. The court reserved its decision following submissions.

Legal Issues Presented

1. Whether the Kirpan Guidance's restriction on the length of kirpans permissible in court buildings is ultra vires the Criminal Justice Act 1988.
2. Whether the length restriction in the Kirpan Guidance is irrational or arbitrary.
3. Whether the Kirpan Guidance violates the Claimant's rights under articles 9 and 14 of the European Convention on Human Rights, as incorporated by the Human Rights Act 1998.
4. Whether the Claimant suffered discrimination on grounds of religious belief or race in relation to the Kirpan Guidance.
5. Whether the restriction interferes with the Claimant's right to earn a living under article 8 of the Convention.
6. Whether the security officers unlawfully applied the Kirpan Guidance on 8 April 2021, including failure to exercise discretion or consult the SPOS.
7. Whether the security officers were empowered to require the Claimant to remove his kirpan in the manner requested.

Arguments of the Parties

Claimant's Arguments

• The Kirpan Guidance's length restriction is inconsistent with section 139 of the Criminal Justice Act 1988, which provides a defence for carrying a kirpan for religious reasons in public places.
• The length restriction is arbitrary and irrational, particularly given differing guidance in Scotland which places no length restriction.
• The restriction violates the Claimant's rights under articles 9 and 14 of the European Convention on Human Rights.
• The restriction affects the Claimant's right to earn a living as a legal representative under article 8 of the Convention.
• The security officers failed to apply the Kirpan Guidance correctly on 8 April 2021 by not exercising discretion or consulting the SPOS.
• The security officers lacked power to require removal of the kirpan in a manner involving removal of trousers in public.
• Opposed the admission of evidence about new Kirpan Guidance and challenged the adequacy of consultation with the Sikh community.

Defendant's Arguments

• The Criminal Justice Act 1988 concerns criminal liability and does not confer a right to carry a kirpan overriding conditions of access to court buildings set under the Courts Act 2003.
• The length restriction is rational, justified by public safety concerns, and supported by the discretion afforded to security officers.
• The Kirpan Guidance is lawful and proportionate under the Human Rights Act 1998.
• The Claimant's article 8 claim lacks evidence and is unjustified given the proportionality of the restriction.
• The challenge to the officers' conduct on 8 April 2021 is unsuitable for judicial review and an alternative remedy exists via private law claims in the County Court.
• Adduced evidence showing new Kirpan Guidance has been promulgated following consultation with Sikh representatives, rendering the claim academic.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first clarified that the Criminal Justice Act 1988 provides a criminal defence for carrying a kirpan for religious reasons but does not confer a positive right overriding access conditions to court buildings, which are regulated under the Courts Act 2003. The Kirpan Guidance's length restriction was therefore lawful and within the powers conferred by statute.

The court rejected the argument that the Kirpan Guidance was irrational or arbitrary, noting that differing practices in Scotland do not render the English policy disproportionate. The court emphasized the obvious safety rationale that longer blades present greater potential danger, including the risk of a kirpan being seized and used by a third party.

Regarding human rights, the court found the restriction to be "prescribed by law" as it is grounded in statutory powers and sufficiently precise for individuals to regulate their conduct. The discretion allowed for exceptions was appropriate and did not require exhaustive codification. The court agreed with the lower court that the policy was a proportionate means of achieving public safety and that the limited interference with religious freedom was justified.

The court dismissed claims of discrimination under article 14 on the basis that the restriction was justified and proportionate.

Claims that the restriction interfered with the Claimant's article 8 rights were rejected due to lack of evidence and because the justification for the article 9 interference applied equally.

In relation to the events of 8 April 2021, the court accepted the lower court's view that even if officers had exercised discretion, the Claimant likely would not have been permitted entry due to magistrates' views. The court further held that the Claimant had an alternative remedy in private law proceedings for any alleged mistreatment, making judicial review unsuitable.

The court admitted evidence of new Kirpan Guidance promulgated after the events but chose not to consider its contents as the appeal concerned the prior policy.

Holding and Implications

The court refused the Claimant permission to appeal against the refusal of permission to apply for judicial review.

This decision means the Kirpan Guidance's length restriction on kirpans in court buildings, as it stood at the time, is lawful, rational, and proportionate. The Claimant's challenge to the guidance and to the conduct of security officers on 8 April 2021 does not meet the threshold for judicial review, particularly given the availability of alternative remedies. The ruling does not set new precedent beyond affirming established principles of statutory interpretation, proportionality in human rights law, and the suitability of judicial review as a remedy.