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. igh H
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 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.
9 An appeal by case stated can only be made once the matter has been finally determined – and not in relation to an interlocutory point[1].
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 indictment[3]) 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).
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.
Judicial Review in Criminal Proceedings
21 Judicial review is the preferable route for circumstances where (for example) –
Ø a party has not been afforded the opportunity to give evidence or call witnesses;
Ø the proper procedures have not been followed;
Ø there has been bias (or the appearance of bias) on the part of the court;
Ø the decision to be challenged is an interlocutory decision (e.g. bail)
Ø the decision was irrational (Wednesbury unreasonable); and
Ø 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).”
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 unfair[4].
25 Examples of reviewable cases and non-reviewable cases are set out below.
Reviewable
(a) Bail decisions[5]
(b) Sham arraignment[6]
(c) Orders for costs after prosecution offered no evidence[7]
(d) Extension of custody time limit[8]
(e) Decision to lift reporting restrictions[9]
(f) Dismissal of charges under s. 6 CJA 1987[10]
(g) Local practice direction requiring defendants to sign defence statements[11]
Non-Reviewable
(h) Refusal of representation order for confiscation proceedings[12]
(i) sentence[13]
(j) failure to make compensation order[14]
(k) remanding hostile witness in custody[15]
(l) non-dismissal of charge[16]
(m) Order that counts lie on file[17]
(n) Decision as to disclosure[18]
(o) Refusal to stay indictment[19]
(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 strictly[21]. The Crown Court does not have jurisdiction to examine the circumstances of the issue of a warrant by a magistrates’ court[22]. 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.
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’ courts[23] and it was possible for appeal and judicial review proceedings to co-exist[24].
33 However, the use of judicial review proceedings to challenge decision to take a child into care[25] and human rights proceedings to challenge care plans or child placements[26] 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 proceedings[27]. 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 care[28].
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 needs[29];
(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 accommodation[30]
(h) interim relief in Special Educational Needs proceedings[31]
37 Examples of situations were judicial review has been refused are:
(i) placing child on child protection register[32];
(j) care proceedings[33]
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:
“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.