England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/07/2016

Judgment (as amended on 21 September 2016)

Mr Justice Leggatt :

1. The claimant applied in this action for judicial review of a decision of Willesden Magistrates Court dated 15 September 2015 to convict her of driving with excess alcohol. The grounds of the claim were that the district judge acted unlawfully in proceeding with the trial without disclosure by the prosecution of CCTV film of the custody suite. By an order dated 11 March 2016, I refused permission to proceed with this claim after consideration of the papers and recorded it as being totally without merit. CPR 54.12(7) provides that in these circumstances the claimant may not request the decision to be reconsidered at an oral hearing. The claimant has nevertheless issued an application asking the court to order an oral hearing to reconsider its decision, alternatively to consider whether the court has jurisdiction to make such an order.
2. The claimant's application raises two issues:

i) Is it arguable that the court has jurisdiction to permit its decision to be reconsidered at an oral hearing, notwithstanding the terms of CPR 54.12(7); and

ii) Was the claim totally without merit?

3. The claimant's argument has been persuasively presented by Mr Rich in his skeleton argument, and I consider that in the circumstances it was entirely proper to make this application. I am, however, satisfied for the reasons which follow that the answers to the questions raised are, respectively, "no" and "yes" and that the application should therefore be refused.

Jurisdiction

4. As a general rule, when permission to apply for judicial review has been refused and recorded as totally without merit, that decision is not the end of the road for the claimant. That is because CPR 52.15(1A) entitles the claimant to apply to the Court of Appeal for permission to appeal (with that application to be determined on the papers without an oral hearing). However, there is no such right where the decision of which judicial review is sought was made in criminal proceedings because section 18(1)(a) of the Senior Courts Act 1981 provides that (subject to an exception not relevant here) no appeal shall lie to the Court of Appeal from any judgment of the High Court in any criminal cause or matter. Mr Rich has submitted that this leaves judicial review claimants in criminal cases in a uniquely weak position and is inconsistent with the overriding objective set out in CPR 1.1(1) of enabling the court to deal with cases justly and at proportionate cost.
5. In R (Grace) v Secretary of State for the Home Department [2014] 1 WLR 3432, the Court of Appeal held that the phrase "totally without merit" used in CPR 54.17(1) means "bound to fail" and is not confined to claims which are abusive or vexatious. The court considered that this approach contained two important and sufficient safeguards – one of them being that the application would be carefully considered and the other that "the claimant still has access to a judge of the Court of Appeal" (para 15). Maurice Kay LJ (with whom the other members of the court agreed) said that CPR 54.12(7) so applied does not detract from the vital constitutional importance of the judicial review jurisdiction and is consistent with the overriding objective of the CPR.
6. CPR 1.2 requires the court to seek to give effect to the overriding objective when it interprets any rule. In support of the claimant's application, Mr Rich has argued that, in order to give effect to the overriding objective, CPR 54.12(7) must be interpreted as not applying to a criminal cause or matter, since one of the two important safeguards highlighted by the Court of Appeal in Grace is not available in such a case.
7. I cannot accept this argument. If the intention had been that CPR 54.12(7) should not apply to claims for judicial review in any criminal cause or matter, the rule would have been bound to say so. The unequivocal and unqualified language used is simply not capable, in my view, of being interpreted as impliedly excluding from its scope criminal cases (or any other category of claims for judicial review). Nor do I think it clear that the application of CPR 54.17(7) to criminal cases is contrary to the overriding objective. When the High Court is itself exercising an essentially appellate function, as it does on an application for judicial review of a decision of a magistrates' court, the decision of Parliament not to allow a further avenue of appeal to the Court of Appeal is readily understandable.
8. It is true that claimants applying for judicial review in criminal cases are disadvantaged in this respect in comparison with claimants in civil cases. But the disadvantage applies equally to every stage of the judicial review process. It seems to me that it would be hard to justify giving claimants an automatic right to an oral hearing in criminal cases which they do not have in civil cases in order to make up for the fact that Parliament has decided not to allow appeals to the Court of Appeal in criminal matters. Put another way, what Mr Rich describes as the uniquely weak position in which claimants in criminal judicial review cases are placed is a consequence of section 18(1)(a) of the 1981 Act, and not CPR 54.12(7).
9. Mr Rich has made a further submission that CPR 54.12(7) would infringe the right to a fair trial protected by Article 6 of the European Convention on Human Rights unless it is read down so as not to apply to judicial review in criminal cases. No authority has been cited, however, nor any argument of principle developed to support the suggestion that Article 6 requires either a right to an oral hearing or a right to apply for permission to appeal in a case where a judge of the High Court following consideration of the papers considers that a challenge to a decision of a lower court is bound to fail.
10. For those reasons, I do not think it arguable that the court has jurisdiction in this case to reconsider its decision at an oral hearing.

Was the claim totally without merit?

11. The reason that I gave in the order dated 11 March 2016 for recording the claim as being totally without merit was that there was clearly an adequate alternative remedy available to the claimant in the form of an appeal to the Crown Court against her conviction in the magistrates' court for driving with excess alcohol. Having read the submissions made in Mr Rich's skeleton argument and the authorities to which he has referred, in particular the decision of the Divisional Court in R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110, I accept his submission that this reason was inadequate and that the reasons given for refusing permission to proceed as well as recording the claim to be totally without merit should have addressed the substance of the claim.
12. Nevertheless, I think it clear from the material which was before the court when the order was made that the claim was indeed bound to fail.
13. The claimant's case as set out in her grounds for judicial review was that the decision of the magistrates' court to refuse to allow her trial to go ahead on 15 September 2015 was procedurally unfair and/or an irrational exercise of discretion in circumstances where an item identified as disclosable in the schedule of unused material served by the prosecution had not been disclosed. The item in question was "custody suite CCTV", which was said in the schedule to be "available to view at Colindale Police Station as per letter dated 19 June 2015". It is common ground that that letter was not received by the claimant and that at the time of her trial the CCTV had not been viewed either by the defence or by the prosecution. It is also apparent and accepted on behalf of the claimant that at the hearing on 15 September 2015 the fact that the CCTV was identified in the schedule as disclosable was not relied on by counsel for the defence nor drawn to the attention of the court.
14. An application for an adjournment made by the defence at the start of the trial on other grounds was refused by the district judge. After the police officer who had administered the breath test to the claimant had given evidence in chief, a defence statement was served raising a defence that the breath testing machine was at fault and that a statutory warning was not given before the test was taken. The defence then applied for disclosure of certain items, which included (at this stage) the custody suite CCTV. The district judge refused the application on the ground that it was speculative and that there was no reason to expect that the CCTV would undermine the prosecution case or assist the defence. The trial then continued and the claimant was convicted.
15. In their summary grounds of opposition to the claim for judicial review, the Crown Prosecution Service submitted that the claim was misconceived and also noted that the CCTV had now been reviewed in the light of these proceedings and contained nothing which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the defence.
16. On these facts the decisions of the district judge to refuse an adjournment and to refuse to order disclosure of the custody suite CCTV were unassailable. It cannot be said that the district judge ought to have granted an adjournment for a reason – namely, the fact that the CCTV was identified as disclosable in the schedule of unused material – which was not relied on by the defence as a reason for seeking an adjournment at the time. Furthermore, the district judge was not merely entitled but plainly right to regard the suggestion that the CCTV footage might undermine the prosecution case or assist the case for the defence as wholly speculative. Indeed, if the district judge had decided that the trial should not go ahead in the absence of the CCTV, his decision would have been unlawful: see DPP v Petrie [2015] EWHC 48 (Admin). In addition, it is clear that the decision to proceed with the trial in fact caused no injustice, as the CCTV would not have assisted the defence case in any event. It is therefore plain that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred.
17. For these much fuller reasons than those given in the order dated 11 March 2016, it remains my opinion that the claim was misconceived and totally without merit.

Conclusion

18. In my view, the answers to the questions raised by the claimant's application are plain and do not themselves require consideration at an oral hearing. The application will accordingly be dismissed.