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Judicial Review in Criminal Proceedings: Part 1 by Anita Davies
Back in April I wrote a piece on the CCRC, and noted that in the face of a CCRC refusal, the only remedy is judicial review. In this two-part post I will be looking at the role of judicial review more widely in criminal proceedings, and some of the specific challenges that arise when public law and criminal law meet.
In the context of criminal proceedings, judicial review most frequently arises in three areas – challenges to investigatory decisions, prosecutorial decisions, and decisions of the court (when, for whatever reason, a straightforward appeal is not an option). This post will deal with the first two areas.
Challenging a decision to investigate or prosecute via judicial review faces the same hurdles that apply to any judicial review application – judicial review is a remedy of last resort, and a court will not grant permission if there is an alternative remedy available or where the matter is more appropriately raised in the on-going criminal proceedings rather than by reference to the High Court. Judicial review must be sought promptly and in any event no later than three months after the decision being challenged, and (crucially) is not a mechanism to challenge decisions that a claimant may simply disagree with; a legal error needs to be identified.
In the context of criminal matters, as a general rule, the high court heavily discourage judicial review applications, on the basis that it wishes to discourage satellite or parallel litigation to matters that can be dealt with by the criminal courts in the course of the substantive hearing or trial, see R (Kebilene) v Director of Public Prosecutions  2 AC 326. In terms of prosecutorial and investigatory decisions, the courts have also repeatedly emphasised that the DPP and Director the SFO have a wide discretion in terms of power, which while not unfettered, should be treated with due regard by the court, bearing in mind the polycentric nature of official decision making, see Lord Bingham R (Corner House Research) v Serious Fraud Office  UKHL 60;  1 AC 756 [30-32].
Decisions to prosecute are generally only open to challenge on specific narrow grounds, as set out in R(L) v DPP  EWHC 1752;  177 JP 502, [§§4 – 7]:
“4. …. the grounds upon which challenge can be made are very narrow:
(1) because there has been some unlawful policy;
(2) because the Director has failed to act in accordance with his own set policy; or
(3) because the decision was perverse; that is to say it is a decision that no reasonable prosecutor could have reached.
- In subsequent decisions…the courts have indicated that these applications will succeed only in very rare cases.
- That is for the good and sound constitutional reason that decisions to prosecute are entrusted under our constitution to the prosecuting authorities ……
- It is very important that the constitutional position of the Crown Prosecution Service as an independent decision-maker is respected and recognised. The courts have therefore adopted this very strict self-denying ordinance. They will, of course, put right cases where an unlawful policy has been adopted or where there has been a failure to follow policy, or where the decisions are perverse. But each of those is likely to arise only in exceptionally rare circumstances and that must be borne in mind.”
Torpey –v- DPP  EWHC 1804 (Admin) clarified that a significant margin of discretion is given to prosecutors. An overall evaluation of the strength of a case falls to be made on the evidence as a whole, applying prosecutorial experience and expert judgment. The courts recognise that different prosecutors may reach different conclusions when reviewing the same material in a case.
When it comes to challenging decisions to investigate, it is more difficult than challenging decisions to prosecute, as the case law suggests that the decision to investigate and the nature of an investigation is subject to an even wider discretion than in decisions to prosecute. The late Lord Laws summarised the position clearly with regard to decisions to investigate and prosecute in R (Bermingham) v Director of SFO  EWHC 2000 (Admin):
“ 63. ….There is much authority to the effect that the jurisdiction to conduct a judicial review of a public authority’s decision to launch or not to launch a prosecution, though it undoubtedly exists, is to be exercised sparingly. Where the decision is to prosecute, this admonition of restraint arises in part at least out of the imperative that criminal proceedings should not be the subject of satellite proceedings which have the effect of delaying the trial….Where the decision is not to prosecute, there cannot I think be a different rule; in any event there will have been expert assessments of weight and balance which are so conspicuously within the professional judgment of the statutory decision-maker that there will very rarely be legal space for a reviewing court to interfere.
- Here, of course, the decision sought to be reviewed is a decision not to investigate. The position as regards the judicial review jurisdiction is in my judgment a fortiori a decision whether to prosecute. The authority’s (here, the Director’s) discretion is even more open-ended. It will involve consideration of the manner in which available resources should be deployed and whether particular lines of inquiry should or should not be followed … it will take a wholly exceptional case on its legal merits to justify a judicial review of a discretionary decision by the Director to investigate or not.”
So, the question may well arise, does judicial review of investigatory or prosecutorial decisions ever work? The answer is yes, although in general challenges to decisions not to investigate or prosecute have been more successful than vice versa. In R v DPP, ex p. Jones (Timothy)  Crim LR 858, a decision of the CPS not to prosecute was overturned. The deceased was employed as a labourer by a company. On his first day at work he was engaged in an operation to unload bags of cobblestones from the hold of a ship using a crane possessing a grab bucket adapted for the purpose. He was decapitated when the grab bucket under which he was standing closed unexpectedly. The Court considered the Crown Prosecutor’s review decision and decided there was no adequate explanation for the decision that the grab bucket procedure had not posed an obvious danger. In Torpey the claimant applied for judicial review of the DPP’s decision not to prosecute the Interested Party (a police officer) for causing death by dangerous driving and/or causing death by careless driving. The Court considered the review decision of the Crown Prosecutor and decided that the law on issue of causation had been misunderstood and misapplied.
Challenges to individual steps within an investigation (for example search warrants) where an investigating authority is obliged to satisfy a statutory test in order to exercise a power have often been more successful. Tchenguiz ( EWHC 2254 (Admin),  1 W.L.R. 1634) involved a successful judicial review of the issue of search warrants on the basis that the SFO had not complied with its duty of disclosure in setting the case before the judge who issued the warrants.
Judicial review within a criminal context is challenging, the common thread in the case law is that public law and criminal law are separate and “never the twain shall meet”. However, in R (AL) v Serious Fraud Office  EWHC 856, the High Court ruled that while it was not the appropriate forum in which to litigate a disclosure dispute relating to a DPA, if it transpired that the Crown Court did not have the power to determine the matter fairly, then it was possible that the High Court could permit a judicial review to proceed in order to fill a procedural lacuna in the system that otherwise risked giving rise to injustice. AL does demonstrate that the courts are likely to listen if a client has identified a serious problem which cannot obviously be addressed in a criminal context, but such cases remain relatively rare.