Introduction

Sections 52-55A of the Courts Act 2003 allow court security officers to exclude persons from court buildings and to require the surrender of various articles, including knives. Section 4(e) of the Security and Safety Operating Procedures Guidance issued by HM Courts & Tribunals Service provides that:

“Where a member of the Sikh community wishes to enter a court building, they can bring in a Kirpan that meets the following requirements:

• • Overall length is no more than six inches,
  • Blade is no more than four inches in length.

If the Kirpan exceeds these lengths, permission to enter may be refused but the senior person on site must be consulted before any decision is taken.”

The operation of the Guidance in relation to kirpans was challenged in Gulshan v Lord Chancellor [2023] EWCA Civ 306.

Background and arguments

In April 2021, Mr Gulshan, a barrister working for a firm of solicitors as an immigration and family lawyer, attended Ealing Magistrates Court in a personal capacity to support a relative who was appearing there. As an observant Sikh, he was wearing his kirpan – but it was eight inches long and, because of that, he was denied access [2]. He issued judicial review proceedings challenging the lawfulness of the Guidance and of his treatment by the security officers at the Magistrates Court, but permission to apply for judicial review was refused [3 & 4].

He appealed on the following grounds:

• that because under s.139(5)(b) Criminal Justice Act 1988 it was not an offence for a Sikh to wear a kirpan in a public place, he had a legal right to wear it in a court building and it was therefore unlawful for HMCTS to adopt a different rule [10];
• that the length restriction in the Guidance contravened the Human Rights Act 1998 and was arbitrary [12 & 13];
• that the length restriction (albeit subject to a discretion) was in breach of Articles 9 and 14 ECHR and accordingly unlawful under s.6(1) of the 1998 Act [21];
• that the length restriction affected his right to earn his living as a legal representative because he would wish to wear an eight-inch kirpan when attending court in a professional capacity, in contravention of Article 8 ECHR [30]; and
• that even if the Kirpan Guidance was lawful, the security officers had not followed it because they failed to appreciate that they had a discretion to permit his entry even if his kirpan was longer than six inches or to consult with the Senior Person On Site (SPOS) [33].

Judgment

Underhill LJ, with whom the Lord Chief Justice agreed, rejected his arguments [37].

The first ground was based on a fundamental misunderstanding: the 1988 Act was concerned with criminal liability and s.139(5)(b) could not confer a positive right that overrode the entitlement of those responsible for a public building to impose conditions of access [11]. As to the issue of length, he agreed with the argument of the Lord Chancellor’s Department that while HMCTS did not believe that a devout, practising Sikh would use the kirpan as a weapon, there was “a risk of it being forcibly removed and used a weapon by a hostile third party” – and one measuring 6 inches or less would be more discreet and the risk of its being deployed in that way were “much reduced. The consequences of an assault with a larger bladed article are, in any event, likely to be more serious” [17]. On the Article 8 and Article 9 points, he agreed with Cavanagh J’s conclusion in the lower court that there was no evidence that Mr Gulshan had ever been prevented from attending a court or tribunal for work because of the length of his kirpan [31].

As to the complaint about the behaviour of the security officers on the day, he agreed with Cavanagh J that

“the real remedy that the claimant seeks is damages and this is not a suitable matter to be dealt with by way of judicial review, as it relates to an incident in respect of which the facts are substantially in dispute and the procedures for judicial review are not suited to the resolution of disputes of fact. Put another way, there is a more appropriate alternative remedy, which is a claim for damages in the county court …” [33: emphasis added].

In his Lordship’s view:

“The conduct on the part of the security officers of which the Claimant complained, if established, could unquestionably have been the subject of private law proceedings under the Equality Act 2010 and/or for breach of section 6 of the Human Rights Act 1998, and both declaratory relief under those heads and damages are claimed in the Amended Statement of Facts and Grounds. Such relief is available in the County Court, and in the absence of any arguable challenge to the lawfulness of the Guidance that was plainly a suitable alternative remedy” [36].

Permission to appeal refused [37].