What Is a Judicial Review in a Criminal Case
Back in Apr I wrote a piece on the CCRC, and noted that in the confront of a CCRC refusal, the just remedy is judicial review. In this 2-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 constabulary and criminal law meet.
Anita Davies
In the context of criminal proceedings, judicial review near frequently arises in iii areas – challenges to investigatory decisions, prosecutorial decisions, and decisions of the court (when, for whatsoever reason, a straightforward appeal is not an option). This post volition bargain with the offset two areas.
Challenging a determination to investigate or prosecute via judicial review faces the aforementioned 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 culling 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 consequence no subsequently than 3 months after the decision being challenged, and (crucially) is not a mechanism to claiming decisions that a claimant may simply disagree with; a legal error needs to be identified.
In the context of criminal matters, every bit a general dominion, the high courtroom heavily discourage judicial review applications, on the basis that it wishes to discourage satellite or parallel litigation to matters that can exist dealt with by the criminal courts in the form of the substantive hearing or trial, see R (Kebilene) v Director of Public Prosecutions [2000] two AC 326. In terms of prosecutorial and investigatory decisions, the courts have as well repeatedly emphasised that the DPP and Director the SFO take a broad discretion in terms of ability, which while not unfettered, should exist treated with due regard past the court, bearing in mind the polycentric nature of official decision making, run into Lord Bingham R (Corner House Enquiry) v Serious Fraud Office [2008] UKHL 60; [2009] one AC 756 [30-32].
Decisions to prosecute are generally only open to challenge on specific narrow grounds, equally set out in R(L) v DPP [2013] EWHC 1752; [2013] 177 JP 502, [§§four – 7]:
"4. …. the grounds upon which challenge tin be made are very narrow:
(1) considering in that location has been some unlawful policy;
(two) because the Director has failed to human action in accord with his own set policy; or
(three) considering the decision was perverse; that is to say information technology is a decision that no reasonable prosecutor could take reached.
- In subsequent decisions…the courts have indicated that these applications volition succeed only in very rare cases.
- That is for the good and sound ramble reason that decisions to prosecute are entrusted under our constitution to the prosecuting government ……
- Information technology is very of import that the constitutional position of the Crown Prosecution Service as an independent decision-maker is respected and recognised. The courts take therefore adopted this very strict self-denying ordinance. They volition, of course, put correct cases where an unlawful policy has been adopted or where there has been a failure to follow policy, or where the decisions are perverse. Just each of those is probable to arise only in uncommonly rare circumstances and that must exist borne in listen."
Torpey – 5- DPP [2019] EWHC 1804 (Admin) antiseptic that a significant margin of discretion is given to prosecutors. An overall evaluation of the strength of a instance falls to exist made on the evidence as a whole, applying prosecutorial experience and expert judgment. The courts recognise that dissimilar prosecutors may accomplish different conclusions when reviewing the same material in a case.
When it comes to challenging decisions to investigate, it is more hard 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) five Director of SFO [2006] EWHC 2000 (Admin):
" 63. ….There is much authority to the upshot that the jurisdiction to conduct a judicial review of a public authority's determination to launch or not to launch a prosecution, though information technology undoubtedly exists, is to be exercised sparingly. Where the decision is to prosecute, this admonition of restraint arises in part at to the lowest degree out of the imperative that criminal proceedings should not exist the subject of satellite proceedings which take the consequence of delaying the trial….Where the decision is non to prosecute, at that place cannot I recall be a unlike rule; in any issue there will have been expert assessments of weight and rest which are and so conspicuously inside the professional person judgment of the statutory decision-maker that at that place will very rarely be legal infinite for a reviewing courtroom to interfere.
- Hither, of form, 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 conclusion whether to prosecute. The authority'due south (hither, the Managing director's) discretion is even more open-concluded. It volition involve consideration of the manner in which available resources should be deployed and whether particular lines of inquiry should or should non be followed … information technology will accept 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 full general challenges to decisions non to investigate or prosecute have been more successful than vice versa. In R v DPP, ex p. Jones (Timothy) [2000] Crim LR 858, a decision of the CPS non to prosecute was overturned. The deceased was employed every bit a labourer by a company. On his first twenty-four hour period at work he was engaged in an operation to unload bags of cobblestones from the agree of a ship using a crane possessing a grab bucket adjusted for the purpose. He was decapitated when the grab saucepan under which he was standing closed unexpectedly. The Court considered the Crown Prosecutor'southward review decision and decided there was no adequate explanation for the determination that the catch bucket procedure had not posed an obvious danger. In Torpey the claimant applied for judicial review of the DPP's determination not to prosecute the Interested Party (a constabulary officer) for causing death by dangerous driving and/or causing expiry by devil-may-care driving. The Courtroom considered the review determination of the Crown Prosecutor and decided that the law on upshot of causation had been misunderstood and misapplied.
Challenges to individual steps inside an investigation (for example search warrants) where an investigating potency is obliged to satisfy a statutory examination in order to practice a ability take oft been more successful. Tchenguiz ([2012] EWHC 2254 (Admin), [2013] i Due west.L.R. 1634) involved a successful judicial review of the upshot of search warrants on the ground that the SFO had not complied with its duty of disclosure in setting the instance 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". Even so, in R (AL) v Serious Fraud Office [2018] EWHC 856, the High Court ruled that while it was not the advisable forum in which to litigate a disclosure dispute relating to a DPA, if it transpired that the Crown Court did non have the ability to determine the matter fairly, and then information technology was possible that the High Court could permit a judicial review to proceed in order to fill a procedural lacuna in the organisation 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.
Read Role 2 here.
Source: https://www.matrixlaw.co.uk/resource/judicial-review-in-criminal-proceedings-part-1-by-anita-davies/
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