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Judicial Review in Criminal Proceedings: Part 2 by Anita Davies

Related Member(s):
Anita Davies
Related Practice Area(s):
Crime and Regulatory Law, Public Law

In part 2 of this post on judicial review in criminal proceedings I will be looking at when judicial review is used to challenge decisions of the court. In part 1 I noted that in terms of challenging decisions to prosecute and investigate, the theme of the case law was that criminal proceedings should stay in the criminal courts, and it would be relatively rare for a challenge via judicial review to a prosecutorial or investigatory decision to succeed. In terms of using judicial review to challenge a decision of a criminal court, it is more common, but still not straightforward.

Anita Davies

Anita Davies

The primary knotty issue is the relationship between case stated and judicial review, both routes end up with the case being considered in the High Court, and both are concerned with errors of law, but which route is appropriate when?

In the Magistrates’ Court appeals by way of case stated are a statutory process governed by s.111 of the Magistrates’ Courts Act 1980, which provides that “(1) Any person who was a party to any proceeding 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 for the opinion of the High Court…”

Despite s.111 reading as if a challenge by way of case stated can be made at any time, the remedy in case stated is only available after the final determination of proceedings, Streames v Copping [1985] QB 920. In Essen v DPP [2005] EWHC 1077 (Admin), Sedley LJ said that the authorities restricting appeal by way of case stated to those where there has been a final determination ‘could usefully be revisited’ however, Streames was affirmed in Downes v RSPCA [2017] EWHC 3622 (Admin). Also, the case stated procedure is somewhat cumbersome, an application has to be made to the Magistrates’ Court requesting that the court state the case, and on making an application for case stated, any rights of appeal to the Crown Court are lost.

So, if the decision to be challenged is not a final determination, then case stated is not appropriate, Highbury Poultry v CPS [2018] EWHC 3122 (Admin) [§54] “if the effect of the ruling in question is that the proceedings remain extant, irrespective of whether they are contested on the issue of guilt or finally determined on a guilty plea, the case stated procedure is inappropriate”. Downes set out a helpful summary of when judicial review is appropriate rather than case stated:

(a) Where a jurisdictional point is taken before the magistrates’ court, then if the court declines jurisdiction that decision can be challenged either by judicial review or by way of case stated.

(b) Where such a point is taken and a court accepts that it has jurisdiction, the only remedy is for the aggrieved party to seek judicial review, and the magistrates in such an event should not adjourn unless there are particularly good reasons to do so. It will very usually be better to carry on and complete the case, allowing for all matters to be raised on appeal at the conclusion of the case in the normal way.

(c) In all other cases there is no power to state a case in relation to an interlocutory ruling. A magistrate should proceed to determine the case finally and then to state a case if appropriate to do so. In a “special case” and if the defendant has obtained leave to seek judicial review then the magistrates might consider adjourning.

A challenge by way of case stated may also become a judicial review following a refusal to state the case by the Magistrates Court. According to MCA 1980, s.111 (6), the correct procedure is to apply to the high court for an order requiring the magistrates to state the case. However, the applicant may instead challenge the decision to refuse to state a case by way of judicial review. Upon the applicant doing so, the Divisional Court may quash the decision to refuse to state a case and decide to proceed to a substantive hearing of the case stated application, using the evidence provided by the parties as the ‘case stated’. In Blackfriars Crown Court, ex parte Sunworld Ltd [2000] 2 All ER 837, the Divisional Court said that if the court below has given a reasoned judgment which contains all the necessary findings of fact and identifies the points of law in question in its refusal to state a case, the single judge should grant permission for judicial review if it considers the point to be arguable. This approach was followed in the recent case of Chabloz v CPS [2019] EWHC 3094 (Admin) [§5] “…We treat the application before us as an application for judicial review in accordance with Sunworld, because there was a written ruling which we think obviated the need for the more cumbersome “case stated” mechanism.

The question of case stated or judicial review also applies to matters in the Crown Court. However, there is the added complication that, by virtue of s. 28(1)(a) and s.29 (3) of the Senior Courts Act 1981, no appeal by way of case stated or judicial review is possible in respect of matters relating to trial on indictment. So case stated or judicial review is available for any decision of the Crown Court relating to an appeal against conviction or sentence from the Magistrates’ Court, but will not be available with regard to any decision relating to the conduct of a Crown Court trial on indictment, Re Smalley [1985] AC 622.

A second knotty issue related to judicial review and decisions of the criminal courts only arises in the Magistrates Courts, and arises from the operation of the “two limb” abuse of process test set out in R (Bennett) v Horseferry Road Magistrates’ Court [1994] 1 AC 42 [1993] 3 W.L.R. 90Bennett states that Magistrates’ Courts have jurisdiction to decide “first limb” abuse of process applications (that a fair trial is not possible) but not “second limb” applications (that it would undermine the integrity of the criminal justice system to allow the case to be tried).

Therefore, in a summary trial, if an abuse of process argument arises under the second limb, then according to Bennett the Magistrates Court do not have jurisdiction, and the correct approach is to proceed via a judicial review, effectively against the decision to prosecute (alternatively to proceed with the trial and if convicted appeal by way of case stated, however this has the serious disadvantage that by this point the defendant will have been convicted). This appears counter-intuitive, given the case law explored in the part 1 of this post, which makes clear that decisions to prosecute  should be dealt with in the criminal context barring exceptional circumstances. The most frequently cited two cases that set out this approach, Nembhard v The Director of Public Prosecutions [2009] EWHC 194 (Admin) and Smith, R (on the application of) v Crown Prosecution Service [2010] EWHC 3593 (Admin) (24 November 2010) do not cite the cases regarding the caution with which prosecution decisions should be dealt with by the High Court.

Alternatively, there is another line of case law that can be used to argue that Magistrates’ Court do have jurisdiction to rule on the abuse of process argument in the context of the prosecution being unfair because it undermines the integrity of the justice system. R (on the application of Barons Pub Co Ltd) (Claimant) v Staines Magistrates’ Court & Runnymede Borough Council & Director of Public Prosecutions [2013] EWHC 898 (Admin) [§33] stated that in principle to a prosecutorial decision in the Magistrates’ Court should be bought by way of an abuse of process application (Barons did not refer to the court’s statement in Bennett that Magistrates Courts only have jurisdiction over the first limb). In Kay & Anor, R (on the application of) v Leeds Magistrates’ Court & Anor [2018] EWHC 1233 the court found that while Magistrates’ Courts do not have jurisdiction over “a limited category of cases, identified in R v Horseferry Road Magistrates’ Court ex parte Bennett [1994] AC 42 HL, involving infractions of the rule of law outside the narrow confines of the actual trial or court process”, they do have jurisdiction over “the wide category of cases over which the Magistrates’ court has jurisdiction includes investigation of the bona fides of the prosecution or of whether the prosecution has been instituted oppressively or 
unfairly” [§30]. In James v DPP [2015] EWHC 3296 (Admin) [§29] Ouseley J made the following finding “There may be debate whether the abuse of process jurisdiction before a Magistrates’ Court extends to dealing with the abuse of process argument that no trial should be held at all because of prosecutorial misconduct, rather than that no fair trial can be held; R v Horseferry Road Magistrates Court ex Parte Bennett[1993] UKHC 10, [1994] 1 AC 42. There are later authorities which suggest that it can.” (Ouseley J, however, does not refer to what those later authorities are)

Therefore, when it comes to abuse of process applications and judicial review in the Magistrates Court, there is a tension in the case law, which should ideally be resolved. However, as a result of that tension, for the moment, there remain a number of opportunities in the Magistrates’ Court to challenge a decision for a abuse of process, via a pre-trial judicial review, an abuse of process application during proceedings, or via case stated following conviction. Each approach is currently possible under the case law as it stands.