England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 February 2018

LORD JUSTICE DAVIS:

Introduction

1. This matter, listed before us as a preliminary issue, relates to a proposed appeal to the Court of Appeal by the claimants from an order of the Divisional Court made on 18 July 2017, [2017] EWHC 2558 (QB). The preliminary issue had been directed by Singh LJ with a view to deciding whether the Court of Appeal has jurisdiction to entertain the proposed appeal. The Divisional Court itself refused permission to appeal, one reason being that the Court of Appeal would have no jurisdiction by reason of the provisions of section 18(1)(a) of the Senior Courts Act 1981. That is the matter which now requires to be decided by this court. If this court decides that it does have jurisdiction we would then go on to hear the application for an extension of time and for permission to appeal on the merits.
2. Section 18(1)(a) of the Senior Courts Act 1981 provides as follows:

"1. No appeal shall lie to the Court of Appeal (a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter ..."

There can be no doubt that the proposed appeal is from a judgment of the High Court. The question is whether it is from a judgment of the High Court "in any criminal cause or matter." I note that "cause" and "matter" have the wide definitions provided in section 151 of the 1981 Act.

Background

3. The background facts are set out in the decision of the Divisional Court dated 18 July 2017. They need only brief restatement by me now.
4. The original judicial review claim form was issued by the claimants on 7 March 2016. It related to decisions, by reference to section 8 of the Police and Criminal Evidence Act 1984, to apply for, issue and execute search warrants in respect of the claimants' premises in Middlesex, Manchester and Rochdale. The underlying offences being investigated by the authorities involved conspiracy to assist unlawful immigration and conspiracy to rob. The actual relief sought in the claim form was as follows:

"1. A declaration that the entries, search and seizures made pursuant to the warrant were all unlawful;

2. An order quashing the warrants;

3. A mandatory order for the return of all material seized in the execution of the warrants and the destruction of all and any copies;

4. An order that no use be made of any knowledge gained from the unlawful searches and seizures;

5. Damages for trespass and wrongful interference with goods and/or under the Human Rights Act 1998;

6) Costs."

It is to be noted that it has throughout been accepted, and rightly so, that such judicial review proceedings constituted a criminal cause or matter for the purposes of section 18(1)(a) of the 1981 Act.

5. Permission to apply for judicial review was thereafter given on the basis that the warrants had failed to comply with the requirements of section 15(6)(b) of the 1984 Act in that there was non-disclosure of material matters. On 29 November 2016, at the substantive hearing, the Divisional Court quashed the search warrants. A detailed order was made on that date. Amongst other things the court, having quashed the search warrants, declared unlawful the entries and searches effected under the warrants. Further provisions of that order included, amongst other things, these as set out in paragraph 3 and 4:

"(3) The Third Defendant shall return to the Claimants all original property seized under the Warrants within 56 days of this Order unless prior to that date the Third Defendant files an application in the Manchester Crown Court for relief under s.59(5) and (6) of the Criminal Justice and Police Act 2001, in which case paragraph (4) applies.

(4) In the event that such an application is made then the obligation to return original property seized shall be subject to any decision to the contrary of the Crown Court in the s.59 proceedings, and the decision of the Crown Court shall be in substitution for (3) above."

Amongst other things, therefore, this order had the consequence that an application to the Manchester Crown Court under section 59 of the Criminal Justice and Police Act 2001 had to be filed by the third defendant by, as it was calculated, 24 January 2017. The third defendant did not do that. (Furthermore, it has been said that the third defendant also failed to return by the due date all the original property which had been seized under the search warrants). It appears that the third defendant only made its application to the Crown Court one day thereafter and moreover did so, it appears, by email and without any supporting materials or evidence. At all events, that application under section 59 having been made out of time to the Manchester Crown Court, the claimants filed grounds of opposition to that section 59 application. Amongst other things, those grounds of opposition specifically identified the point that the section 59 application had been filed out of time and contrary to the terms of the order of 29 November 2016.

6. Some four weeks or so then went by until eventually, on 10 March 2017, the third defendant's lawyers lodged an application (the application, as we are told, having the same title and case number as the judicial review proceedings) seeking retrospective variation of the time limit contained in paragraph 3 of the order of 29 November 2016. Notification of this application was, it seems, sent to a generic email address of the claimants' solicitors. A response was invited by 14 March 2017. However it appears that the solicitors never received that email. At all events, no response was filed; and in the absence of any such response Supperstone J, on the papers in the Administrative Court, on 27 March 2017 granted the order sought.
7. However, when the fact that the claimants' lawyers had never been informed of this then became apparent, a further oral hearing, understandably treated as a de novo hearing, was held on 18 July 2017 before a Divisional Court comprising Bean LJ and McGowan J. The Divisional Court on that occasion, by a detailed judgement of Bean LJ with whom McGowan J agreed, decided that the original order of 29 November 2016 should be varied by substituting the words "58 days" for the words in the original order "56 days". That had the consequence of making the section 59 application to the Manchester Crown Court valid and lodged in time.
8. It is that order of 18 July 2017 which the claimants now seek to challenge on appeal to this court. It is said that the Divisional Court had no justification in varying the original order, whether under Civil Procedural Rules 3.1(7) or otherwise. It is said that this court, if it has jurisdiction, should set that order aside.

Decision on Jurisdiction

9. In my view, it is clear, both from the express terms and language of section 18(1)(a) of the 1981 Act and from the exposition with regard to those terms as set out in various of the authorities as then to be applied to the facts and circumstances of this case, that this court has no jurisdiction to entertain this appeal. Any appeal, if a point of law had been certified and permission granted, would only lie to the Supreme Court.
10. As I have indicated, it has never been disputed that the claim in the judicial review proceedings constituted a criminal cause or matter. The first judgment and order of the Divisional Court of 29 November 2016 were thus themselves in a criminal cause or matter. Since then, the subsequent judgment and order of 18 July 2017 provided for a variation of the previous order of 29 November 2016. That too, at first sight and indeed at second sight, would be a judgment in a criminal cause or matter. Mr Bowers QC for the claimants, however, seeks to argue otherwise. He emphasised that the judgment of 29 November 2016 was a final judgment. That is true. But it does not necessarily follow that the subsequent judgment of 18 July 2017 was not in a criminal cause or matter. On the contrary, as I see it, it clearly was in that criminal cause or matter. No-one, for example, ever suggested that the Divisional Court had no jurisdiction at the further hearing on 18 July 2017; and that jurisdiction was, in truth, to be exercised entirely by reference to the previous judgment of 29 November 2016: albeit, it is correct to say, in the light of what had happened thereafter. Yet further, of course, the contemplated section 59 application was itself a criminal cause or matter.
11. Mr Bowers, however, sought to say that, the original order being final, the application to vary as made in March 2017, was "a free-standing" application under CPR 3.1(7), which he said was essentially civil in character. He said that the whole focus of that application was on what the solicitors acting for the third defendant had failed to do since the original order. That the original order itself was criminal in nature did not, he said, necessitate a conclusion that the present order was itself criminal in nature. Indeed he baldly and boldly asserted that the underlying context of the original claim being a criminal cause or matter was "irrelevant" in determining the character of the subsequent proceedings to vary the order of 29 November 2016, as determined in July 2017. He said that all that mattered in reality was the conduct of the solicitors since the original order. He further said that it would be "anomalous" to preclude an appeal to the Civil Court of Appeal in such circumstances.
12. In my view, given the circumstances of this case, this argument is untenable. Reference may be made to the authority of Carr v Atkins [1987] 1QB 963. In that case the Court of Appeal held that judicial review proceeding challenging a production order under section 9 of the Police and Criminal Evidence Act 1984 constituted a criminal cause or matter. In so deciding, and as part of the decision and after a consideration of the relevant authorities, Sir John Donaldson MR, with whom the other members of the court agreed, said this at page 970H:

"Looking at it afresh, I have no doubt whatsoever that an order or a refusal of an order under the Act of 1984 and all subsequent proceedings relating to such an order or refusal are properly to be characterised as orders in a criminal cause or matter, and it would follow from that we have no jurisdiction."

The words "and all subsequent proceedings relating to such an order or refusal" are to be noted.

13. Similarly, in the case of Tan v Cameron [1992] 2 AC 205, (a case on the Hong Kong Supreme Court Ordinance) to which Mr Bird, on behalf of the respondent, made reference in his written argument, this was said at page 221 A to B:

"The language of the Ordinance directs attention, not to the proceedings which led to the order from which the appeal is brought, but to the nature of the cause or matter 'in' which the appeal is brought. If the cause or matter is properly characterised as criminal, it cannot lose that character simply because at one stage it is carried forward by techniques which closely resemble those employed in civil matters, or which lead to relief often granted in civil matters, or which are available in civil or criminal matters alike; any more than, having gained this new character by the employment of such techniques, it would revert to its former status when the deployment of the techniques came to an end."

Likewise in the case of R (Panesar) v Central Criminal Court [2015] 1 WLR 2577 the focus of the court was on the "underlying proceedings". In that case it was confirmed, applying the reasoning in Carr v Atkins, that proceedings under section 59 of the 2001 Act, just as much as proceedings under section 8 or section 9 of the 1984 Act, were, even where the underlying warrants had been quashed, a "criminal cause or matter". Yet further illustration of the general position taken by the courts can be found in the recent case of Darroch v Football Association Premier League [2017] 4 WLR 6.

14. It is certainly the case, as I would accept, that there can be instances where, even though the underlying or original proceedings are criminal in nature, the particular further proceeding in question may not be. One example can be found in the case of Government of the USA v Montgomery [2001] 1 WLR 196. Mr Bowers hopefully has submitted that that case was on all fours with the present case. One only has to look at the facts and circumstances of the Montgomery case, however, to see that it is 100 miles, if not further, away from the facts of the present case. Another such case is the case of R (Guardian News and Media) Limited v Westminster Magistrates Court [2011] 1 WLR 3253. In that particular case the relevant authorities were fully reviewed by Lord Neuberger MR. In that particular case, the underlying extradition proceedings related to alleged bribery and were a criminal cause or matter. However, so far as the application before the court was concerned, that related to an application by a non-party newspaper seeking to challenge the refusal of the magistrate to permit disclosure to the newspaper of documents used in the proceedings in the Magistrates' Courts. That application was thus understandably described as "wholly collateral" to the criminal extradition proceedings. Accordingly, the order of non-disclosure neither involved the exercise of the criminal jurisdiction nor had "any bearing" on the criminal proceedings themselves. But, again, that sort of scenario is not the present case.
15. It is, to my mind, plain on which side of the line this present case falls. Here the application made to the Divisional Court in 2017 was in the same cause or matter: that is to say, the judicial review proceedings. It cannot, in my view, be said that the judgment of 18 July 2017 was "wholly collateral" to the judgment of 29 November 2016 made in the judicial review proceedings. In my view, it cannot be said that this whole application, and judgment of 18 July 2017, was a "free-standing" matter. On the contrary, it was wholly and inextricably linked to the original judgment of 29 November 2016. It involved specific reference to it and specific variation of its terms as to timing. Moreover, it also had the consequence of permitting the section 59 application to proceed in the Manchester Crown Court; and, on the authority of Panesar, that section 59 application was, in itself, notwithstanding the quashing of the warrants, a criminal cause or matter. In all these circumstances, the judgment and order of the Divisional Court of 18 July 2017 did, in my opinion, unquestionably comprise a criminal cause or matter.

Conclusion

16. That being so, my view is that this court has no jurisdiction to entertain the proposed appeal. I would, for my part, therefore refuse this application. In such circumstances it is neither necessary nor appropriate to comment on the prospective merits (or, as Mr Bird would have it, lack of merits) of the underlying grounds of appeal.

LADY JUSTICE SHARP:

17. I agree.

Order: Application refused. Permission granted to cite this decision.