#14774 - Criminal Law And Judicial Review - BPC Judicial Review

INTRODUCTION 1

Appealing/challenging Magistrates’ Courts decisions 1

Error of fact or fact and law 1

Error of law or excess of jurisdiction 1

Unfairness, bias or procedural irregularity 1

‘Case stated’ – preferred method of challenge to legal error 2

MAGISTRATES’ COURT 3

CROWN COURT 4

REMEDIES 5

There are three routes of appeals or challenges of decisions made by the Magistrates Court. Choosing the correct route depends on the type of error which has been made.

An appeal to the Crown Court against conviction and/or sentence results in a complete re-hearing of the case. This is appropriate where the Magistrates have made an error of facts or a combined error of facts and law. Where they have made a decision not justified on the evidence they heard

The appropriate route of appeal is to the High Court by way of case stated (s.111 Magistrates’ Courts Act 1980).

Judicial Review – As JR is also a matter where errors of law are challenged, there is a fine line between the JR route or the ‘case stated’ route. The basic rule is the presence of unfairness. Where unfairness is present, JR may be more appropriate. In errors of law, Case Stated may be more appropriate.

The purpose of the Case Stated procedure is to get the High Court answer to a question of law posed by the Magistrates Court. The parties seeking to challenge the Magistrates Court decision applies to the Court for it to state a case for the opinion of the High Court – Magistrates Court will set out its reasoning and frame a question of law for the High Court to decide. If necessary, the parties would agree the wording of the application – the Magistrates Court may amend it, if necessary.

Section 111 MCA 1980:

“(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 on the question of law or jurisdiction involved;”

s111 (4): Right of appeal to the Crown Court ceases

s111 (5): Justices may refuse to state a case on the ground that it is “frivolous”

s111 (6): Applicant may then apply to the High Court for a mandatory order (in practice will be heard together with the ‘case stated’ review)

NB: 21 day time limit

• Use JR if ‘case stated’ appeal is for some reason “clearly inappropriate” [R v Morpeth Justices ex p Ward (1992) Cr App R 215] – Where there has been a procedural error e.g. where defendant prevented from being heard, or denied the opportunity of cross-examining a witness

• Appeal to the Crown Court is not precluded (unlike case stated)

Best practice: lodge an appeal to the CC with an application to adjourn pending the HC decision.

• R v Brent JJ ex p Liles [1992] COD 269 – Where an appeal is begun by way of case stated, but for some reason this becomes impractical, the High Court retains the discretion to consider the application as if it were an application for JR.

• R (Paul Rackham Ltd) v Swaffham Magistrates’ Court [2005] JPL 224 – Case stated is not available as a means of challenging committal proceedings. Judicial Review is the appropriate remedy.

• Judicial review is appropriate to challenge an unlawful (as opposed to excessive) sentence e.g. R v Highbury Corner JJ ex p Uchendu, The Times, 28^th January 1994, the High Court was prepared to intervene at the behest of the defence where a maximum sentence had been imposed without regard to the principle of proportionality.

There are two procedural issues to be considered:

1. JR should not be used as a way to avoid the strict 21 days time limit for Case-Stated appeals;

2. Where it is thought that a Case-Stated appeal exists, but it is extremely urgent in nature – the Case-Stated process cant be expedited.

• Best course of action: Apply for an urgent JR permission hearing.

• High Court may allow application for JR in cases of exceptional urgency

• The Crown Court is not an ‘inferior court’ unlike the Magistrates and County Court. Thus the scope of the High Court Power is more limited.

• The High Court cannot intervene on “matters relating to trial on indictment” [s.29(3) Senior Courts Act 1981]

• Very wide category of decision i.e. any decision affecting the conduct of the trial, including pre-trial directions [Re Smalley [1985] AC 622 HL]

• Order relating to composition of a jury

• Staying a trial as an abuse of process

• Decision not to hold a trial on fitness to plead

• Orders concerning costs

• Potentially subject to JR:

• Error of jurisdiction

In R v Maidstone CC ex parte LB Harrow [2000] QB 719, the Judge made a supervision order under the Mental Health Act to a D who has pleaded not guilty by reason of insanity. The Judge had no jurisdiction to make such order under the Act and the D had no right of appeal as there was no conviction. Although D had been arraigned, on a strict...