Applications for judicial review are a comparatively rare, but constitutionally and publicly essential, method of seeking a remedy to an injustice that has been made by a public body (including certain courts).
Whilst it is more usual for judicial review applications to be brought in matters of public affairs, it can also be pursued in the criminal courts.
If you need advice on pursuing a judicial review speak with one of our defence solicitors today.
What is Judicial Review?
In English law, judicial review is the process by which the court assesses and evaluates any decision, action, or omission made by any public body or authority (including a lower court); the purpose of the judicial review is then to determine whether the decision made falls under one or more of three categories of wrong:
Illegality – where the court has acted beyond its jurisdiction or powers (known as ultra vires);
Irrationality – where the decision of the court was “Wednesbury unreasonable” (see below); and
Unfairness – where the court has acted in breach of “natural justice” (see below).
Judicial review applications are made to the High Court (specifically, the Administrative Court of the King’s Bench Division), for which leave (or permission) is first required.
There is then a potential route of appeal to the Supreme Court, but such appeals are comparatively rare and require permission to be granted by either the High Court or Supreme Court.
The principles behind judicial review lie at common law, although the current jurisdiction and powers of the High Court in respect of an application for judicial review flow from the Senior Courts Act 1981.
Judicial Review in Criminal Law : The Courts
Magistrates’ Courts
Judicial review is available to defendants to allow them to challenge the legitimacy of a decision made by a district judge or lay bench in the magistrates’ court provided that there are relevant grounds (see below).
Crown Court
Judicial review is also available in the Crown Court, however the jurisdiction of the High Court to question any decision of a judge in the Crown Court is very limited.
In short, the High Court may judicially review any decision of the Crown Court provided that the said decision does not relate to any matter directly arising from, or in consequence to, charges laid on an indictment.
For example, an application would be available in respect of an issue regarding an early application for bail (i.e. before there is an indictment). Conversely, an application would not be available to review the decision of a judge to discharge a jury. One informal test of establishing whether a decision may be the subject of a judicial review is to ask whether such an application, if it were heard, would cause a significant delay to the trial starting.
The only exception to the indictment rule is where the proposed judicial review relates purely to the jurisdiction of the Crown Court to have made the decision in question.
Judicial Review in Criminal Law: Public Bodies
Decisions of certain public bodies which are related to the criminal justice system are also susceptible to judicial review.
For example, there are some police decisions which may be judicially reviewed; however, it can be very difficult for such decisions to be overturned as the police have a wide scope to exercise their powers to ensure that prosecutions can be brought promptly and effectively.
Equally, certain decisions made by the Crown Prosecution Service may be judicially reviewed, but here again the circumstances under which an application may be brought are very limited and are judged on a case-by-case basis.
Remedies
Where an application for judicial review has been successful in the High Court, there are three main remedies which will be available to the Court:
Mandatory order – this is an order made by the Court for the relevant public body to undertake a particular action or fulfil a particular obligation required of it by law (formerly known as a writ of mandamus);
Prohibiting order – this order has the effect of preventing a public body from taking a particular action. As such, it is a prospective, preventative measure to stop a public body from acting unlawfully (this was previously know as a prohibition order); and
Quashing order – this is the most common remedy used by the High Court, and it has the effect of completely overturning the original decision. After such an order, the High Court can then direct that the decision be made again or, in exceptional circumstances, it can make the decision itself (this was formerly known as a writ of certiorari).
In criminal cases, the most common remedy is a quashing order to undo a decision of a lower court or criminal-related public body.
Additionally, upon an application for judicial review, the High Court (if satisfied that the application has merit) may quash (i.e. overturn) a sentence passed following a conviction in the magistrates’ court. They would then substitute in its place their own sentence if it is satisfied that the lower court had no jurisdiction to pass the sentence in question or that the sentence was wrong in law; this includes any sentence passed by the Crown Court following an appeal against sentence from the magistrates’ court, or any committal for sentence to the Crown Court.
Finally, the High Court also has the power to award damages in certain cases where there has been a proved loss to the applicant; however, an application for judicial review will likely be refused by the Court where the application is brought predominantly with a claim for damages in mind.
Grounds to Apply for Judicial Review
Upon an application for judicial review, the High Court will only grant one of the above three remedies (usually a quashing order) where one of the following grounds is satisfied, namely that:
The lower court has, in making its decision, exceeded its jurisdiction (illegality); This is where a court has made a decision which it did not have the power or authority, under its legal remit, to make;
There has been an error of law (illegality); This is determined “on the face of the record”, which means upon considering the official decision of the lower court and the reasons provided for it;
The lower court has acted in breach of the rules of “natural justice” (unfairness); This is a broad term incorporating the principles that there must be due process of law and procedural fairness in our justice system; or
The decision of the lower court was “Wednesbury” unreasonable (irrationality); Wednesbury unreasonableness is defined in case law and is, in brief, where a judge has come to decision where either he has placed too much weight on irrelevant facts, or placed too much weight on relevant facts, and that the decision, in any case, is so absurd that no reasonable person could ever have made such a decision.
The case law surrounding the above grounds is very complex, and the Courts will also be wary when allowing applications; as such, it is always advisable to seek legal advice before pursuing an application for judicial review, even where one of the above grounds appears to have been met.
Funding for Judicial Review
In certain cases, funding for an application for judicial review may be available from the Legal Aid Agency.
The provisions surrounding making an application for costs in a judicial review case to be covered by the Legal Aid Agency are complex. In short, however, the Agency will consider:
The merits of any application being pursued (i.e. the likelihood of whether the application will be successful in the High Court);
Whether there exist any routes of appeal through which the applicant may seek appropriate relief instead;
The financial circumstances (means-testing) of the applicant (including whether there are other financial sources available to the applicant); and
Whether there is a need, taking into consideration all the circumstances, for the applicant to be represented.
What Happens During a Judicial Review?
In order for an application for judicial review to be considered by the High Court, permission must first be granted by the said Court. Such an application must be made “promptly”, and in any event no later than three months from the date on which the grounds for the application first arose (i.e. usually the date on which the decision was made).
The effect of the word “promptly” means that even where an application is lodged within the three-month deadline, the High Court may still refuse permission if it is of the opinion that the applicant waited too long to pursue the application (known as undue delay); this will be determined on a case-by-case basis and will depend on the potential consequences or effect of allowing the application in the circumstances (including its effect on any other person involved on who may be involved).
In deciding whether to grant permission, the High Court may take into consideration, amongst other matters, whether:
The outcome for the applicant would have been substantially different if the decision in question had not been made; and
There are reasons of exceptional public interest which make it nevertheless appropriate to give permission.
It is also necessary that the applicant “has sufficient interest in the matter” to which the judicial review relates. In criminal cases, this requirement is usually satisfied where the application is in respect of criminal proceedings where the applicant is also the Defendant.
The Difference Between Judicial Review and Appeals
Before bringing an application for judicial review, it is important to consider whether any appropriate remedy or relief can be granted by a court through an appeal against the relevant decision. Legal advice should always be sought, but some appeals which may afford relief (and may overlap with any application for judicial review) are:
Please see our dedicated articles in respect of each of the above appeals, based on which court is hearing the case or has jurisdiction over the relevant criminal proceedings.
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Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.