JUDICIAL REVIEW IN CRIMINAL AND FAMILY PROCEEDINGS
Kerry Barker
Guildhall Chambers
Bristol
Talk to the Western Circuit
February 2015
The Availability of Judicial Review in Criminal and Family Proceedings
Criminal Proceedings
1
There are two routes to the High Court for the purpose of challenging decision relating
to criminal proceedings. Applications (or claims) for Judicial Review and Appeals by
Case Stated.
CASE STATED
2
In relation to appeals from decisions of criminal courts appeals by case stated for the
opinion of the High Court provide an alternative to the more common appellate
routes.
3
There is often confusion, however, as to whether challenges made to lower courts
should proceed by way of case stated appeals or by claims for judicial review and
there have been cases in which the High Court has refused to deal with an application
for judicial review because the matter should have been dealt with under the case
stated procedure.
4
The case stated jurisdiction is quite narrow. Section 111 of the Magistrates’ Courts
Act 1980 provides:
“S. 111(1) – Any person who was a party to any proceedings before a magistrates’
court or is aggrieved by the conviction, order, determination or other proceeding of
1
the court may question the proceeding on the ground that it is wrong in law or is in
excess of jurisdiction by applying to the justices composing the court to state a case
of the opinion of the High Court on the question of law or jurisdiction involved; but a
person shall not make an application under this section in respect of a decision
against which he has a right of appeal to the High Court.”
5
In the recent case of K v CPS [2013] EWHC 1678 (Admin) Silber J stressed that “the
purpose of a Case Stated is to deal with a focussed issue in a particular case, such as
that the magistrates erred in law or acted in excess of jurisdiction.” The Case Stated
procedure cannot be used to obtain guidance on issues such as whether it was right
that criminal proceedings are about a search for truth; or whether Rule 3.2 of the
Criminal Procedure Rules required a district judge to case manage; or whether the
High Court should give guidance on the minimum detail required in an application by a
party to the court to state a case.
6
The expressions “wrong in law” or “in excess of jurisdiction” can cover a situation
where the evidence is not sufficient to justify a conviction. Only in such cases will
there be a need to recite the evidence in the stated case. Otherwise the stated case
should simply set out the findings made by the court.
7
The procedures to be followed in a case stated appeal are strict and must be complied
with. For example there is no power to extend the period for making an application
(within 21 days after the day on which the decision of the court was given – s.111(2)
Magistrates’ Courts Act 1980).
8
It must be remembered that if an appeal by case stated is pursued from the
magistrates’ court the right to appeal to the Crown Court is extinguished. But there
will also be an opportunity to ask the Crown Court to state a case for appeal should
the appeal to that court fail – s. 111(4) MCA 1980.
2
9
An appeal by case stated can only be made once the matter has been finally
determined – and not in relation to an interlocutory point1.
10
Rarely can a sentence be appealed by case stated. The appellant would have to show
that that is was so harsh as to be oppressive and far removed from the normal
sentence for the offence.2
11
The rules of procedure for stating the case are set out in rr 76-81 of the Magistrates’
Courts Rules 1981 and r 64 of the Criminal Procedure Rules.
12
Once the matter gets to the High Court the governing procedures are found in Part 52
of the Civil Procedure Rules.
13
Unlike judicial review permission to appeal by case stated is not required.
14
The magistrates may, however, refuse to state a case on the basis that the application
is frivolous. The term ‘frivolous’ means futile, misconceived, hopeless or of academic
interest only and refusals should be rare. A refusal to state a case for the opinion of
the High Court can be challenged in judicial review proceedings.
15
If the appeal is against a decision of a magistrates’ court it will be for the magistrates
(or their clerk) to set out the case stated in draft. Whereas if the appeal is against a
decision of the Crown Court then the applicant has to provide the first draft.
16
Appeals from the Crown Court (usually exercising its appellate jurisdiction because
appeals by case stated are not permitted in relation to trials on indictment3) are
governed by section 28 Senior Courts Act 1981 and rule 64 of the Criminal Procedure
Rules (as well as Part 52 of the Civil Procedure Rules).
1
R v Greater Manchester Justices ex p Aldi GmbH [1994] 159 JP 717
R v St Albans Crown Court ex parte Cinnamond [1981] QB 480 where it was said that the sentence had to be
“by any acceptable standard, truly astonishing”.
3
S. 28(2)(a) Senior Courts Act 1981)
2
3
17
Appeals by case stated are covered by s. 12(2)(b) Access to Justice Act 1999. They are
not prescribed as incidental to the magistrates’ court proceedings and must be
covered by a separate application to the High Court for a representation order. The
original Magistrates’ Court representation order covers advice on appeal (both written
and oral). It also covers the making of an application to the High Court for a
representation order (e.g. completing the legal aid form).
18
The powers of the High Court upon hearing an appeal by case stated are:
(a) to reverse, affirm or amend the determination in respect of which the case has
been stated; or
(b) remit the matter to the lower court with the opinion of the High Court.
and make such other order as the court thinks fit.
19
Costs follow the event (subject to usual discretion of the High Court). The proceedings
are criminal proceedings for the purposes of prosecution costs and costs from central
funds.
20
An appeal from the High Court in a criminal matter lies to the Supreme Court. Leave
of either the High Court or the Supreme Court is needed and shall not be granted
unless the High Court certifies that a point of law of general public importance is
involved and ought to be considered by the Supreme Court.
4
Judicial Review in Criminal Proceedings
21
Judicial review is the preferable route for circumstances where (for example) –
 a party has not been afforded the opportunity to give evidence or call
witnesses;
 the proper procedures have not been followed;
 there has been bias (or the appearance of bias) on the part of the court;
 the decision to be challenged is an interlocutory decision (e.g. bail)
 the decision was irrational (Wednesbury unreasonable); and
 there is a need for speedy access to the High Court.
22
Applications for permission to apply for judicial review (the starting procedure) are
made to the Administrative Court, whose Bristol office is in Cardiff.
23
There is a very serious limitation on the use of judicial review in criminal proceedings
in the Crown Court. Judicial review is not available “in matters relating to trial on
indictment” (s. 29(3) Senior Courts Act 1981). The statutory wording is far from
precise. In R v Manchester Crown Court ex p Director of Public Prosecutions [1993] 1
WLR 1524 the court suggested asking: “Is the decision sought to be reviewed one
arising in the issue between the Crown and the defendant formulated by the
indictment (including the costs of such issue).”
5
24
S. 29(3) Senior Courts Act 1981 has been held to be compatible with the European
Convention on Human Rights because the defendant can appeal to the Court of
Appeal if the trial is unfair4.
25
Examples of reviewable cases and non-reviewable cases are set out below.
Reviewable
(a) Bail decisions5
(b) Sham arraignment6
(c) Orders for costs after prosecution offered no evidence7
(d) Extension of custody time limit8
(e) Decision to lift reporting restrictions9
(f) Dismissal of charges under s. 6 CJA 198710
(g) Local practice direction requiring defendants to sign defence statements 11
Non-Reviewable
(h) Refusal of representation order for confiscation proceedings12
(i) sentence13
(j) failure to make compensation order14
(k) remanding hostile witness in custody15
(l) non-dismissal of charge16
4
R (Shields) v Crown Court at Liverpool [2001] EWHC 90(Admin)
R (O) v Harrow Crown Court [2003] EWHC 868 (Admin); [2003] 1WLR 2756
6
R v Maidstone Crown court ex p Clark [1995] 1 WLR 831
7
R v Wood Green Crown Court ex p DPP [1993] 1 WLR 723
8
R (Eliot) v Crown Court at Reading [2001] EWHC 464 (Admin) and Delton Campbell-Brown V Central Criminal
Court [2015] EWHC 202 (Admin)
9
R v Crown Court at Manchester ex p H [2000] 1 WLR 760
10
R (Commissioners of Inland Revenue) v Kingston Crown Court [2001] EWHC 581 (Admin)
11
R (Sullivan) v Maidstone Crown Court [2002] EWHC 967 (Admin); [2002] 1 WLR 2747
12
R (Ludlam) v Leicester Crown Court [2008] EWHC 2884 (Admin)
13
R (CPS) v Guildford Crown Court [2007] EWHC 1798 (Admin); [2007] 1 WLR 2886
14
R (Faithful) v Crown Court at Ipswich [2007] EWHC 2763 (Admin); [2008] 1 WLR 1636
15
R (H) v Wood Green Crown Court [2006] EWHVC 2683 (Admin); [2007] 1 WLR 1670
16
R (O) v Central Criminal Court [2006] EWHC 256 (Admin)
5
6
(m) Order that counts lie on file17
(n) Decision as to disclosure18
(o) Refusal to stay indictment19
(p) Refusal of legal aid
26
There have been authorities in which it appears to have been accepted that a
jurisdictional error by the Crown Court is reviewable.20
27
Of particular importance are cases dealing with the grant and execution of search
warrants.
The relevant procedures, for example under the Police and Criminal
Evidence Act 1984, have to be complied with absolutely strictly21. The Crown Court
does not have jurisdiction to examine the circumstances of the issue of a warrant by a
magistrates’ court22. There is an important trilogy of cases – R (Anandi) v Revenue &
Customs Commissioners and Crawley Magistrates’ Court [2012] EWHC 2989 (Admin);
R (Cummins) v Manchester Crown Court [2010] EWHC 2111 (Admin) and R (Cook and
Cook) v Serious Organised Crime Agency [2010] EWHC 2119 (Admin, [2011] 1 WLR 144
dealing with the consequences of unlawful seizures.
Judicial Review in Family Proceedings
28
The scope for judicial review in family proceedings is much more limited. Whilst the
High Court exercised a supervisory jurisdiction over inferior courts (and, indeed,
appeals from Magistrates’ Courts in family proceedings used to lie to the High Court)
the availability of a comprehensive appellate structure meant that applications for
judicial review in family proceedings were rare.
17
R v Central Criminal Court ex p Raymond [1986] 1 WLR 710
R v Chelmsford Crown Court ex p Chief Constable of Essex Police [1994] 1 WLR 359
19
R v Maidstone Crown Court ex pa Shanks & McEwan (Southern) Ltd [1993] Env LR 340
20
R v Maidstone Crown Court ex p Harrow London Borough Council [2000] QB 1169
21
R (S, F and L) v Chief Constable of British Transport Police and Southwark Crown Court [2013] EWHC 2189
Admin.
22
R (Goode) v Crown Court at Nottingham and Chief Constable of Nottinghamshire [2013] EWHC 1726 (Admin)
18
7
29
There are a few cases where the statutory appeal by case stated can still apply in
relation to family proceedings and, in particular, to matters relating to the
enforcement of ancillary relief payments.
30
There is clear authority for the proposition that trials in criminal proceedings in
magistrates’ courts must be lawful, rational and fair so much so that the availability of
an appeal does not exclude the remedy of judicial review.
31
To a certain extent that philosophy is replicated by the fact that permission is not
required in family proceedings for an appeal from a decision of justices. But following
the formation of the single family court questions will be asked about the availability
of judicial review of proceedings in the lower courts.
32
Up to that time examples could be found of judicial reviews of proceedings in the
family or domestic courts of the magistrates’ courts23 and it was possible for appeal
and judicial review proceedings to co-exist24.
33
However, the use of judicial review proceedings to challenge decision to take a child
into care25 and human rights proceedings to challenge care plans or child placements26
were criticised with the courts holding that such matters should be dealt with in care
proceedings or in the Family Division.
34
Judicial review proceedings were held to be inapt where the object of the proceedings
was to prevent a local authority commencing emergency protection or care
proceedings27. Similarly, in cases involving people without capacity to make decision
applications to the Family Division have been held to be more appropriate than
judicial review challenges to the public body involved in their care28.
23
R v Plymouth Justices ex parte W [1993] 2 FLR 777
Southwark London Borough v H [1985] FLR 989
25
Re S (habeas Corpus) [2003] EWHC 2734 (Admin)
26
C v Bury Metropolitan Borough Council [2002] EWHC 1438, [2002] 2 FLR 868
27
Re M (Care Proceedings; Judicial Review) [2003] EWHC 850 (Admin), [2003] 2 FLR 171
28
R v Portsmouth Hospitals NHS Trust ex p Glass [1992] 2 FLR 905
24
8
35
In practice most judicial review applications in “family” cases will concern ancillary or
related decisions made by local authorities and other public bodies and then the main
issue will often be whether or not there is available an alternative remedy.
36
So, for example, the following types of decisions have been subject to judicial review:
(a) the rate of payments made to special guardians;
(b) payments made to family carers compared with foster carers;
(c) provision for children with special needs29;
(d) support for children leaving care;
(e) the availability of CAFCASS guardians;
(f) refusal of legal aid to parents involved in exceptional family proceedings;
(g) use of secure accommodation30
(h) interim relief in Special Educational Needs proceedings31
37
Examples of situations were judicial review has been refused are:
(i) placing child on child protection register32;
(j) care proceedings33
Nature of Judicial Review
38
The basis of judicial review proceedings is to provide a legal challenge to
administrative or executive decisions which affect a person’s public law rights. It is
not concerned with the merits of a decision but rather the way in which the decision
was reached. In Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, in
the House of Lords, Lord Brightman said:
29
R (CD) v Isle of Anglesey County Council [2004] EWHC 1635 (Admin); [2005] 1 FLR 59
S v Knowsley Borough Council [2004] EWHC 491 (Fam), [2004] 2 FLR 716
31
R (G) v Barnet London Borough Council [2005] EWHC 1946 (Admin)
32
R (M) v London Borough of Bromley [2002] EWCA Civ 1113, [2002] 2 FCR 193
33
Re C (Care Proceedings: Disclosure of Local Authority’s Decision Making Process) [2002] EWHC 1379 (Fam),
[2002] FCR 673
30
9
“Judicial Review, as the words imply, is not an appeal from a decision, but a review of
the manner in which the decision was made.”
And
“Judicial review is concerned not with the decision but with the decision-making
process. Unless that restriction on the power of the court is observed, the court will,
in my view, under the guise of preventing the abuse of power, be itself guilty of
usurping power.”
39
To the three traditional grounds – illegality, irrationality and procedural impropriety –
can now be added breach of human rights and, perhaps, disproportionality.
Procedure
40
There is a pre-action protocol in place for judicial review claims. For criminal court
proceedings, however, the protocol is most unlikely to apply because the court will
not be in a position to change its decision.
41
If the claim relates to a criminal case but not to a court decision then the protocol will
apply and will require the prospective claimant to give the decision maker the
opportunity to reconsider its decision by writing a pre-action letter setting out the
grounds for challenge.
42
A claim is made on form N461 (downloadable from the Ministry of Justice website). It
often makes sense to append the grounds for review on a separate document. If
there is a need for an urgent hearing there is an additional form (N463) to be
completed setting out the need for urgency and the interim remedy sought.
43
A claim form must be served on the defendant (decision-maker) and any interested
party (e.g. the prosecution) within 7 days of filing.
10
44
The defendant and any interested party who wishes to take part in the proceedings
must file an acknowledgement of service within 21 days of service.
An
acknowledgment of service form is intended to provide a defendant/interested party
with the opportunity to set out any grounds for refusing the claim. It is not intended
for full argument but to set out in short the response of the party filing it. There may
be circumstances, however, where a detailed response is necessary.
45
Once the acknowledgement has been filed the papers will go before a judge of the
Administrative Court for a decision as to whether or not the claimant should get
permission to proceed. If permission is refused the claimant has 7 days from service
of the decision (with brief reasons) to renew the application for permission. A
renewed application will normally result in an oral hearing at which the other parties
are not expected to attend (and will not be able to recover their costs for attending).
46
Only after permission is granted will the defendant/interested party need to file any
witness statements and/or other documents in preparation for a full hearing.
Skeleton arguments must be filed not later than 21 days before a fixed hearing.
47
It is unusual for a court to appear or be represented in a judicial review claim although
it is customary for the magistrates or judge to file affidavits or witness statements to
assist the court. On that basis it is very unusual for the High Court to award costs
against justices or the Crown Court.
48
The orders that the High Court can make are
(i)
To quash the decision challenged
(ii)
To direct the decision maker to act in accordance with the decision/judgment
of the court (a mandatory order)
(iii)
To prohibit an action or course of action (a prohibitory order)
(iv)
To grant a declaration
(v)
To award damages (where claimed)
(vi)
To award costs.
11
49
The issue of costs in judicial review proceedings is complicated, especially where local
authorities and courts are concerned.
The judgment that is most important in
providing guidance in the issue of costs, especially where cases are settled, is M v
Croydon London Borough Council [2012] EWCA Civ 595.[2012] 1 WLR 2807. In cases
involving appeals to a court against a regulatory or licensing decision the leading
authority is R (Perinpanathan) v City of Westminster Magistrates’ Court and
Commissioner of Police for the Metropolis [2010] EWCA Civ 40’ [2010] 1 WLR 1508.
50
Claims for judicial review are subject to time limits and must be made promptly. The
statutory time limit of 3 months may be too late in certain cases. It has to be
remembered that relief in judicial review cases is discretionary. Where there is an
alternative remedy or appeal route available the Administrative Court is unlikely to
exercise its discretion in favour of a claimant.
CHALLENGES TO DECISIONS TO PROSECUTE
51
Rather than trying to succeed in the criminal proceedings there has grown in the past
few years a practice of trying to defeat a prosecution by challenging the decision to
prosecute. Recently the whole subject of challenges to decisions to prosecute has
been considered by the Court of Appeal and the Divisional Court and authoritative
guidance given in three cases:
52
In R v A(RJ) [2012] EWCA Crim 434 ([2012] 2 Cr App R 8 Lord Judge, the Lord Chief
Justice, made clear that provided that the exercise of a prosecutorial discretion had
been conscientiously undertaken the only question for the court is whether the
offence had been committed or not.
53
Lord Judge CJ went on to say (at paragraph 84) that where an argument was advanced
by reference to a policy or guidance issued by the Director of Public Prosecutions,
there were three matters to emphasise:
12
“First that the decision whether to prosecute or not must always be made by the
Crown Prosecution service and not the court. The court does not make prosecutorial
decision.
Second, provided there is evidence from which the jury may properly convict, it can
only be in the rarest circumstances that the prosecution may be required to justify
the decision to prosecute.
Third, the decision whether or not to prosecute in most cases requires a judgment to
be made about a multiplicity of interlocking circumstances. Therefore even if it can
be shown that in one respect or another, part or parts of the relevant guidance of
policy have not been adhered to, it does not follow that there was an abuse of
process. Indeed it remains open to the prosecution in an individual case, for good
reason, to disapply its own policy or guidance.”
54
The Court in Moss & Son Ltd v Crown Prosecution Service [2012] EWHC 3056 (the first
case heard in the Administrative Court in Bristol) referred to R v A(RJ) [2012] EWCA
Crim 434 ([2012] 2 Cr App R 8) in which, as set out above, the Lord Chief Justice made
clear that provided that the exercise of a prosecutorial discretion had been
conscientiously undertaken the only question for the court is whether the offence had
been committed or not.
55
Where a breach of policy was alleged (as was the case in Moss & Son Ltd) even if
proved that would not be enough to justify a stay. In Moss & Son Ltd the President of
the Queen’s Bench Division said (at paragraph 25):
“It is clear therefore that in an application to stay for abuse where a breach of policy
is established, the applicant must go on and establish misconduct or oppression of
the type explained in ex parte Bennett [1994] 1 AC 42.”
56
In R (on the application of Baron Pub Co Ltd) v Staines Magistrates’ Court and
Runnymede Borough Council (DPP as Intervener) [2013] EWHC 898 (Admin) again Sir
13
John Thomas (President of the Queen’s Bench Division) presided over a case involving
a challenge to the decision of a local authority to prosecute. In that case the district
judge had found that there was a failure on the part of the decision maker to apply the
local authority’s policies but nevertheless refused a stay because there would be no
oppression.
57
Having disagreed with the district judge’s decision on the policy issue (that there had
been a failure to comply with or apply the relevant policy) the Divisional Court went
on to consider whether oppression has to be proved. Counsel had argued that the
prosecution and its usual consequences was itself oppressive. That argument was
rejected by the court. At paragraph 47 the President said:
“We cannot accept the broad terms of that submission. It is clear from the decisions
in R v DPP ex parte Kebilene [2000] 2 AC 326, ex parte Bennett [1994] 1 AC 42, R v
A(AJ) and Moss, that proof of oppression in the sense described in Bennett and other
cases is essential if an abuse of process application is to succeed. In a case where a
policy has been considered but wrongly applied, we consider that oppression above
and beyond the ordinary consequences of initiating a prosecution would have to be
shown...”
“48. However, there may be cases ... where the decision to prosecute has been made
in circumstances that could be described as entirely arbitrary. The court could
conclude in such a case that, having regard to all the circumstances, it would be
oppressive to continue the prosecution. In argument an example was put forward of
a prosecution being initiated by a prosecutor on the direction of a member of the
Executive (such as a Minister or Chief Executive of a Council) without any
consideration having been given by the person entrusted with the prosecutorial
discretion to the merits of the case, but acting solely and in complete breach of his
duty on the direction of the member of the Executive. It is difficult to conceive of such
a case ever arising, but if it did, such arbitrary behaviour might possibly give rise on
its own to conduct that would make it oppressive for the prosecution to continue.”
14
58
In paragraph 51, the Court made the following observations about the process
followed in that case:
i)
As was made clear by the court in R v A(RJ) save in an exceptional case,
decisions to prosecute are for the prosecutor. The task of the criminal court
is, save in an exceptional case, to determine whether the prosecution has
proved its case on the merits.
ii)
... such matters as (the defendant) might establish about the way in which
they conducted their premises and the attempts they made to clean them
are matters of mitigation.
iii)
It was far from helpful to (the defendant) that their solicitor, instead of
defending the case on the merits and taking points in mitigation, engaged in
lengthy correspondence aimed at finding fault with the decision to
prosecute...
iv)
A report recommending and recording the decision to prosecute is generally
a confidential document. As we are reminded .. it is very rare indeed for the
Crown, for obvious reasons, to make such a document available to the
defence. It is the Crown’s own analysis of why a decision to prosecute has
been made and will often contain information which it would be contrary to
the public interest to disclose. Save in an exceptional case, there is no reason
for the prosecutor to disclose such a document, as it would generally be
contrary to the public interest for it to do so. If reasons for a decision to
prosecute are exceptionally to be given, those reasons should ordinarily be
set out in a separately drafted reply to the request for reasons.
v)
In the light of the issues that arose in Moss and the formulation of the
Secretary of State’s Code of Practice dealing with prosecution policy, it is
highly desirable that such policies ore reviewed by or on behalf of the
15
Director so they are part of the same coherent and logical approach to
prosecution by all prosecutors.
vi)
The alleged offences occurred nearly two years ago.
The judgment
dismissing the claim for a stay was over one year after the offences had been
committed.
Justice in the Magistrates’ Court is meant to follow a fair
summary procedure which should be swift.
Diversions such as those
achieved by the (defendant’s) solicitors in the present case are strongly to be
discouraged an inimical to the proper administration of justice. We very
much hope that such challenges will be very rare indeed.”
59
There is no requirement for an enforcement agency to give an explanation for
rejecting the other options open to it or for not prosecuting the owners of the
property. As Cranston J said in Wandsworth London Borough Council v Rashid [2009]
EWHC 1844 (Admin):
“That would have been unnecessarily onerous.”
60
In the case of R v Brentford Justices, ex parte Wong [1980] 73 Cr App R 67 it was
accepted as a fact by the prosecutor that on the day that the information was laid, the
last day of the statutory six months time limit,
“... there had been no irrevocable decision to prosecute” (page 68)
and that the prosecutor then retained the summonses he had obtained and
deliberately did not serve them. In that case the prosecutor’s actions were held to be
an abuse of process.
Kerry Barker
Guildhall Chambers
Bristol
16