Appeals to the Administrative Court

Updated: 15/5/2019|Legal Guidance

Introduction

This guidance explains the procedure for the lodging of an application to the Administrative Court for a judicial review or appeal by way of case stated, and the procedure to be followed when such application is made by a defendant.

The law, practice and procedure in question derive from:

  • sections 111 - 114 Magistrates' Courts Act 1980;
  • Criminal Procedure Rules 2015, Part 35;
  • sections 28 - 31 Senior Courts Act 1981 (formerly Supreme Court Act 1981);
  • and Civil Procedure Rules, Part 54.

Principles

A defendant or prosecutor may challenge decisions by the magistrates' court or Crown Court by way of judicial review. This is a challenge to the way in which a decision has been made rather than the correctness of the decision.

There is an overlap between the quashing order available through judicial review and the case stated procedure. They can both be used in situations where the court is wrong in law or has acted in excess of jurisdiction. The effect of both remedies is to set aside the decision of the court below.

When both remedies are available the case stated procedure should be used because it enables the facts as found by the court to be placed before the Administrative Court: R v Ipswich Crown Court ex parte Baldwin [1981] 1 All ER 596.

Responsibility for Proceedings

Areas: Judicial Review

In judicial reviews instigated by the CPS, the Area is responsible for identifying those cases that are suitable for appeal and for the initial decision as to whether to seek judicial review. Areas must seek assistance and advice from the Appeals and Review Unit (ARU) in the Special Crime and Counter Terrorism Division.

Areas are responsible for dealing with the pre-action stages of all potential judicial review proceedings in accordance with the Pre-Action Protocol for Judicial Review but must seek assistance with this from the ARU. Areas should note that the court will generally have regard to any failure to follow the Protocol when determining costs. The Protocol need not be followed when the challenged decision is that of a court.

It is essential that where the Area seeks assistance to initiate or respond to judicial review proceedings, any such consultation is carried out with regard to the time limits specified in the Civil Procedure Rules and should always be dealt with expeditiously. See the section on timeliness below for details of the detailed timescale to be followed.

Areas are responsible for initial correspondence with the relevant first instance court and the defence; the ARU shall conduct all appeals to the Administrative Court or Divisional Court by judicial review in relation to interlocutory decisions, whether initiated by the CPS or any other party.

The ARU, in its discretion, may permit particular judicial reviews to be conducted by Areas: each must be notified to the ARU for information and central monitoring.  See Central Monitoring: Notification to Appeals and Review Unit - for details of the information that needs to be supplied to the ARU in such circumstances.

Areas: Case Stated

In all case stated appeals instigated by the CPS, the Area is responsible for identifying those cases that are suitable for appeal and for the initial request made to the magistrates or Crown Court to state a case.

The Area is also responsible for making representations on any draft before the stated case is finalised. Those representations must be made after consultation with the ARU as the Case is the sole document that the Administrative Court shall consider and it is important that all necessary information is contained within it.

Central Casework Divisions

All Central Casework Divisions will deal with their own cases in the Administrative Court, subject to the requirement to notify the ARU of all such cases.

Appeals and Review Unit

After the pre-action stages the ARU will conduct all appeals by judicial review to the Administrative Court and all case stated appeals.

Judicial Review

Scope

A defendant or prosecutor may challenge decisions by the magistrates' court or Crown Court by way of judicial review (sections 29 and 31 Senior Courts Act 1981). It is a challenge to the way in which a decision has been made rather than the correctness of the decision.

The court has no jurisdiction to hear judicial review in respect of matters relating to trial on indictment (section 29(3) Senior Courts Act 1981).

Where the court makes a quashing order in respect of the decision to which the claim relates, the court may:

  • Remit the matter to the decision maker and direct it to reconsider the matter in accordance with the judgment; or
  • Substitute its own decision (section 31 Supreme Court Act 1981).

If the Administrative Court decides that the magistrates' court or Crown Court had no power to impose a particular sentence, then it may substitute any sentence that the court below had the power to impose.

Timeliness

In order to comply with Civil Procedure Rule 54.5 the claim form to commence judicial review must be filed 'promptly'. The outer limit of three months referred to in the Rule should be seen only as a 'long-stop' in exceptional cases.

The decision in Crown Prosecution Service v Newcastle-upon-Tyne Youth Court [2010] EWHC 2773 (Admin) emphasises that an application for judicial review always demands speed. This is all the more so where the application for judicial review relates to an interlocutory decision in the proceedings.

In the Newcastle-upon-Tyne case, the Administrative Court accepted the merits in the application by the CPS to review a decision by a District Judge in the youth court to retain jurisdiction in a rape case involving a 17 year old defendant. However, relief was not granted because of the perceived prejudice arising from the period of 5 weeks or so between the decision of the District Judge and the institution of judicial review proceedings.

Timescale for decisions

Accordingly, other than in exceptional circumstances, the timescale for the lodging by the CPS of an application for judicial review should be a maximum of 10 working days:

  • if the CCP/DCCP/Head of Division wishes to commence an appeal it should be notified to the ARU within a maximum of 5 working days after the decision in question, with sufficient information, including a detailed chronology, a statement of the facts and proposed grounds, any application for directions and copies of all other relevant documentation to enable the ARU to consider and conduct the appeal;
  • The ARU will review the documentation and, decide in agreement with the CCP/DCCP/Head of Division whether to make the application; if so, then the ARU will prepare the formal application and serve it on all parties within a further 5 working days.

Judicial Review Procedure

Director/CPS as Claimant - applying for permission

The application for permission to move for judicial review is made by completing Form N461 with supporting statement of truth verifying the facts relied on and lodging the application together with the appropriate fee.

If an urgent decision is required, particularly in interlocutory appeals, an application for urgent consideration may be made on Form N463.

Form N461 is the basis of the claimant's case at the substantive hearing and it should therefore set out concisely the points of law and fact(s) upon which the CPS relies.

The application to the High Court Judge is normally a "paper" application, although an oral application can be requested on Form N461. All documents must be carefully and accurately drafted. Failure to do so may result in the refusal of an initial application.

There is no prescribed content for the statement of truth in support of Form N461 but all evidence that the claimant wishes to use must be included. A claimant may be refused leave to adduce evidence at a later stage if there has been a failure to include it. Full disclosure must be made to the court of all the relevant facts, even if disadvantageous to the claimant's case.

A copy of the relevant order against which relief is sought must be lodged in the Administrative Court Office.

When the claim is lodged with the court a sealed copy will be returned to the claimant. The Claimant must then serve a copy on the defendant and any person the claimant considers to be an interested party within 7 days of issue of that sealed claim.

If the initial application for permission is refused, it is possible to request that the decision be reconsidered at an oral hearing. Such request must be lodged within 7 days of being served with a notice of refusal. There will be an oral hearing and the Administrative Court Office will advise all parties of the hearing date.

Director/CPS as Defendant - responding to the claim

A sealed copy of the claim form must be served on the CPS as defendant and unless the court otherwise directs, any person the claimant considers to be an interested party within 7 days after the date of issue.

The Area should provide the necessary papers to the ARU immediately, including the claim, supporting documentation and any relevant case papers. There should be local procedures to ensure that all High Court correspondence is brought to the attention of a DCP in order to liaise with the ARU.

On receipt of a claim form, an acknowledgement of service form N462 including Summary Grounds of Opposition, must be filed with the Administrative Court Office within 21 days and served on the claimant and any other person named in the claim within seven days after it is filed.

The ARU will prepare and lodge the acknowledgement of service.

Failure to file an acknowledgment of service will not prevent the CPS from taking part in the hearing for judicial review as long as detailed grounds for contesting the claim together with supporting documents are served within 35 days after service of the order giving permission. However, it is preferable to deal with the matter at permission stage if possible and any failure to file an acknowledgment of service may be taken into account when deciding what order to make about the costs. After permission is granted a defendant or any person served with a claim form who wishes to contest the claim or support it with additional grounds must file and serve detailed grounds for contesting or supporting the claim and any written evidence within 35 days after service of the order giving permission. An extension of time will only be granted in exceptional circumstances.

Where justices are defendants they may file a statement of truth but they do not usually appear at the hearing nor are they represented.

Case Stated

Case Stated appeals - from the magistrates' court

The formal application to the justices to state a case must be in writing, signed by or on behalf of the applicant and made within 21 days of the decision being challenged, though that time starts to run from sentence when the court has adjourned post-conviction (s111(2)(3) MCA); there is no power to extend that initial time. The application must identify the question(s) of law or jurisdiction on which the opinion of the High Court is sought and the proposed grounds of appeal (CrimPR 35.2(2)). There is a prescribed form on which to make the application. In addition to serving the application on the magistrates court a copy must be sent to each other party.

Each party may make representations on the application to state a case (CrimPR 35.2(3)(4)); generally representations are not made at that stage as the court may only decline to state a case on the basis that it is frivolous or vexatious.

If the magistrates' court refuses to state a case on the grounds that the application is frivolous, a notice to that effect will be given; if requested within 21 days, the court shall provide written reasons for declining to state a case (CrimPR 35.2(5)). Section 111(6) Magistrates Court Act 1980 provides for the person who applied for a case stated to apply to the High Court for a mandatory order requiring the magistrates' court to state a case.

The first draft of the statement of the case must be prepared by the Justices' Clerk and sent to the appellant and respondent within 21 days of the court serving notice that it shall state a case. There is no fee payable for the court to state a case in a criminal matter but the court may require the appellant to enter into a recognisance to prosecute the appeal. Any representations must be made to the court, and copied to each other party within 21 days of receipt of the draft (CrimPR 35.3(6)).

No evidence is called as proceedings are based solely on the facts stated in the case. Prosecutors should satisfy themselves that the statement sets out accurately the facts found by the magistrates, and does not merely recite the evidence heard.

Criminal Procedure Rule 35.3(5) specifies that a statement of evidence is not required unless one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates' court could come to its decision. The court has the power to order costs where the Rule is not followed. Where a question is as to the sufficiency of evidence, it is good practice to invite the magistrates to annex to the case any CCTV or other media so that the High Court may consider its impact, see DPP v Jobling [2016] EWHC 2707 (Admin) at [13].

On receipt of the finalised case stated the appellant must lodge 3 copies in the Administrative Court Office within 10 days of the date of the case, together with:

  • the appellants notice on Form N161;
  • a copy of the decision against which the appeal is being made; and
  • the appropriate fee. (CPR PD52E, 2.2 & 2.3)

A copy of the appellants notice, with the case stated and accompanying documents must be sent to the respondent within four days of lodging the same at the Administrative Court Office (CPD PD52E, 2.4).

Case Stated appeals - from the Crown Court

After written application has been made to the Crown Court and the judge has agreed to state a case, the first draft is prepared by the appellant and must be sent to the appropriate officer of the Crown Court and the other party/parties to the proceedings within 21 days of receiving that agreement. (CrimPR 35.3(3)(b))

The other party/parties have 21 days to agree the draft case stated or draft an alternative. (CrimPR 35.3(6))

The judge will consider the draft together with any alternative within 21 days after the time for representations has expired (CrimPR 35.3(7)) (the Crown Court can extend the time limits at all stages including the time in which to make the initial application).

The appellant then lodges the case stated in the same way as that for the magistrates' court.

A Crown Court judge can refuse to state a case if she/he considers the application is frivolous or on jurisdictional grounds such as a failure to observe time limits. Judicial Review will lie against unreasonable refusal but before such a course is contemplated, the Appeals and Review Unit should be consulted; the process for judicial review, as set out above, shall then apply.

CPS as the applicant

The initial decision whether to ask either the magistrates' court or Crown Court to state a case is one for an Area, but it is recommended that the advice of the ARU is sought prior to making the application. It is essential that the Area provide a copy of the draft document to the ARU at the earliest opportunity. Prosecutors should satisfy themselves that the draft statement sets out accurately the facts found by the magistrates, does not merely recite the evidence heard, and provides a sufficient basis from which the grounds of appeal may be advanced.

Once the case stated has been finalised by the lower court the Area should send it to the ARU with all appropriate documentation immediately; it is prudent to obtain a certified copy of the magistrates court register for the appropriate decision at an early stage. A lawyer from the ARU will review the documents submitted by the Area and prepare formal pleadings to be submitted to the Administrative Court.

If the ARU lawyer does not feel the case should be pursued, the Area will be consulted, but the final decision will be made by the ARU.

The ARU will lodge the case and the accompanying documents with the Administrative Court and serve them on the respondent. The Area should notify the defendant or his solicitors as appropriate that the Unit will be taking over the case. The ARU will be responsible for serving any further documents that may be required by the Administrative Court and for briefing the advocate.

CPS as the defendant

The Area should ensure that the draft case is complete and factually accurate, having checked with the relevant advocate, liaise with the ARU as to any representations it feels appropriate on that draft case. It is essential that the Area provide a copy of the draft document to the ARU at the earliest opportunity.

Once the finalised case has been settled, the Area should provide any necessary papers to the ARU within five calendar days. The Area should notify the appellant or his solicitors as appropriate that the ARU will be taking over the case and provide the contact details for the ARU so that it may be served directly.

A lawyer from the ARU will review the documents submitted by the Area. If the ARU lawyer does not feel the case should be opposed, the Area will be consulted, but the final decision will be made by the ARU.

The ARU will be responsible for serving any further documents that may be required by the Court and for instructing the advocate.

Protective Marking: Official Sensitive starts

Central monitoring: Notification to the Appeals and Review Unit

In all cases conducted by Areas the following information should be sent to:

Appeals and Review Unit

Special Crime and Counter Terrorism Division

Floor 7, 102 Petty France, London SW1H 9EA

DX 161330 Westminster 11.

Tel: 020 3357 0079 Email: SCD.Appeals@cps.gov.uk Together with:

  1. Copy of Form N461 in the case of a Judicial Review, or the finalised Case Stated;
  2. Report by the prosecutor conducting the case, including details of legal argument;
  3. Details of any research / authorities relied on;
  4. Name of counsel, and copy of any advice received;
  5. Copies of significant correspondence;
  6. Note of hearing date;
  7. Notification of result form.

Item 1 should be sent as soon as it is received/prepared, with the other items following as soon as they are available.

The ARill provide routine updates to the Director, Director Legal Advisor and the Attorney General's Office on the progress of appeals being conducted by Areas.

Protective Marking: Official Sensitive ends

Annex A: CPS Appeals and Review Unit Remit - Administrative Court Cases

In general terms, the ARU deals with all Area appeal cases before the Administrative Court or Divisional Court where the CPS is a party.

CPS Area appeal cases

CPS Areas will continue to handle any appeals as agreed on a case by case basis with the ARU.

Central Casework Division cases

The Central Casework Divisions will deal with all of their own current and new cases in the Administrative Court or Divisional Court.