JUDICIAL REVIEW IN CRIMINAL AND FAMILY PROCEEDINGS

Kerry BarkerGuildhall ChambersBristol

Talk to the Western CircuitFebruary 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

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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.

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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 7172 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)

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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.

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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).”

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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 statements11

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)5 R (O) v Harrow Crown Court [2003] EWHC 868 (Admin); [2003] 1WLR 27566 R v Maidstone Crown court ex p Clark [1995] 1 WLR 8317 R v Wood Green Crown Court ex p DPP [1993] 1 WLR 7238 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 76010 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 274712 R (Ludlam) v Leicester Crown Court [2008] EWHC 2884 (Admin)13 R (CPS) v Guildford Crown Court [2007] EWHC 1798 (Admin); [2007] 1 WLR 288614 R (Faithful) v Crown Court at Ipswich [2007] EWHC 2763 (Admin); [2008] 1 WLR 163615 R (H) v Wood Green Crown Court [2006] EWHVC 2683 (Admin); [2007] 1 WLR 167016 R (O) v Central Criminal Court [2006] EWHC 256 (Admin)

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(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 71018 R v Chelmsford Crown Court ex p Chief Constable of Essex Police [1994] 1 WLR 35919 R v Maidstone Crown Court ex pa Shanks & McEwan (Southern) Ltd [1993] Env LR 34020 R v Maidstone Crown Court ex p Harrow London Borough Council [2000] QB 116921 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)

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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 77724 Southwark London Borough v H [1985] FLR 98925 Re S (habeas Corpus) [2003] EWHC 2734 (Admin)26 C v Bury Metropolitan Borough Council [2002] EWHC 1438, [2002] 2 FLR 86827 Re M (Care Proceedings; Judicial Review) [2003] EWHC 850 (Admin), [2003] 2 FLR 17128 R v Portsmouth Hospitals NHS Trust ex p Glass [1992] 2 FLR 905

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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 5930 S v Knowsley Borough Council [2004] EWHC 491 (Fam), [2004] 2 FLR 71631 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 19333 Re C (Care Proceedings: Disclosure of Local Authority’s Decision Making Process) [2002] EWHC 1379 (Fam), [2002] FCR 673

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“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.

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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.

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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:

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“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

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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.”

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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

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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

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