Proportionate restrictions on manifestation of religious belief: Kirpans in Court buildingsR(Gulshan) v Lord Chancellor

Proportionate restrictions on manifestation of religious belief: Kirpans in Court buildings

The Court of Appeal has handed down judgment in R(Gulshan) v Lord Chancellor [2023] EWCA Civ 306 on 22 March 2023 refusing the Claimant’s application for permission to appeal against the Administrative Court’s refusal of permission for judicial review.

Mr Gulshan had sought to argue that HMCTS policy limiting the default length of Kirpans (one of the Sikh articles of faith: a small curved knife in a sheath) permitted in Court buildings. The Policy provided that Kirpans of overall length less than six inches, with a blade no more than 4 inches, carried by a member of the Sikh Community would usually be permitted, but the Policy also provided for discretion in individual cases. The Claimant’s kirpan was 8 inches long and he was denied permission to enter with it by Ealing Magistrates Court in April 2021. The Claimant sought judicial review against the Policy and in respect of what he alleged occurred on that day. The claim alleged that the Policy itself was ultra vires, breach of Article 8, 9 and 14 ECHR and breaches of the Equality Act 2010.

The Court of Appeal’s judgment dismisses the Claimant’s application for permission to appeal. The Court:

• Dismissed the claim that the Policy was precluded by section 139 of the Criminal Justice Act 1998. It was lawful under the Courts Act 2003(see para [11]).
• Dismissed the argument that the length limit was arbitrary (see paras [13]-[16] and [18]) and unsupported by evidence (see para [17]).
• Found that the Policy at the time was “prescribed by law” (see paras [24]-[25]). 
• emphasises that there may be more than one lawful and proportionate approach to the balancing of the rights of others and keeping court buildings safe with the Claimant’s rights to manifest his religious belief and “ the fact that there are differences in the approaches taken by different authorities does not mean that a more restrictive rule is necessarily disproportionate” (see para [27]). The policy was inevitably proportionate. The fact that the Policy is not identical in Scotland does not matter.
• Emphasised that the Claimant, had he had an arguable discrimination or Human Rights Act 1998 claim, would have had the right to bring a civil claim in the County Court, and that was a suitable alternative remedy to judicial review (see para [36]).

A link to the Court of Appeal’s judgment is here.

Katherine Apps KC represented the Lord Chancellor, instructed by the Government Legal Department.