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Appeals to the Administrative Court

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Introduction

Applications for judicial review and appeals by way of case stated are the proceedings in the Administrative Court that most affect the CPS. The law, practice and procedure are contained in:

  • subsection 111 - 114 Magistrates' Courts Act 1980; 
  • Criminal Procedure Rules 2010, Part 64; 
  • subsection 28 - 31 Senior Courts Act 1981 (formerly Supreme Court Act 1981); and 
  • Civil Procedure Rules, Part 54.

Section 111 Magistrates' Courts Act 1980 and section 28(1) Senior Courts Act 1981 provide that relevant proceedings in the magistrates' court and a Crown Court "order, judgment or other decision" respectively may be challenged by way of case stated on the basis that they are wrong in law or in excess of jurisdiction. A court can state a case only after it has reached a final determination of the matter.

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.

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Responsibility for proceedings

Areas: Judicial Review

In judicial review appeals instigated by the CPS, the Area is responsible for identifying those cases that are suitable for appeal and for the initial decision whether to seek judicial review. Areas should consult Strategy and Policy Directorate as appropriate on the law or policy relating to the issue in question and can seek assistance and advice from the Appeals Unit.

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 can seek assistance with this from the Appeals Unit. Areas should note that the court will generally have regard to any failure to follow the Protocol when determining costs.

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 conducting appeals to the Administrative Court by judicial review in relation to interlocutory decisions, whether initiated by the CPS or any other party, except those decisions relating to bail and Custody Time Limits (CTLs).

Areas also remain responsible for the on-going conduct of any judicial review cases lodged with the Administrative Court prior to 28 June 2010.

Judicial reviews conducted by Areas must be notified to the Appeals Unit for information and central monitoring See Central Monitoring: Notification to Appeals Unit - for details of the information that needs to be supplied to the Appeals Unit in such circumstances.

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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.

Areas should consult Strategy and Policy Directorate as appropriate on the law or policy relating to the issue in question and can seek assistance and advice on procedural matters from the Appeals Unit.

Where the Area seeks the assistance of Strategy and Policy Directorate or the Appeals Unit in drafting or making representations on a draft stated case, this consultation must be carried out in a timely manner so that all preparatory work can be completed within the time limits specified in the Civil Procedure Rules.

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Central Casework Divisions

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

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Appeals Unit

After the pre-action stages the Appeals Unit will conduct all appeals by judicial review to the Administrative Court against final decisions, interlocutory decisions relating to bail and CTLs and all case stated appeals lodged on or after 28 June 2010.

In addition, where judicial review of a CPS decision to prosecute or not to prosecute is sought, the prosecution decision will be treated as a final decision, to be dealt with by the Unit.

Final decisions on whether to lodge CPS instigated claims for judicial review or case stated, except in the interlocutory appeals conducted by Areas, will be made by the Appeals Unit.

See Annex A for further guidance on what constitutes an interlocutory or final decision.

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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.

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Conduct of the case

Please refer to Responsibility for proceedings above to determine whether the case should be conducted by the Appeals Unit or the Area or Central Casework Division responsible for the prosecution.

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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.

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Timescale for decisions - interlocutory matters

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

  • The decision whether to commence a judicial review should be taken at CCP/DCCP/ Head of Division level within a maximum of 5 working days after the judgment in question;
  • If the decision of the CCP/DCCP/Head of Division is to proceed then the claim should be lodged with the Administrative Court by the Area within a further 5 working days and a copy should be provided to the Appeals Unit at the same time.

If the judgment being appealed relates to bail or CTLs:

  • The decision of the CCP/DCCP/Head of Division to commence the appeal should be notified to the Appeals Unit within a maximum of 5 working days after the decision in question, with sufficient information, including a draft claim and statement of grounds, to enable the Unit to conduct the appeal;
  • The Appeals Unit will review the documentation and if the Unit agrees with the CCP/DCCP/Head of Division decision then it will serve the application on all parties within a further 5 working days.

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Timescale for decisions - final decisions

Where the Area intends to seek judicial review of a final decision or order, the Area should submit to the Appeals Unit, within one month of the final decision in question, the draft application for permission for judicial review along with a detailed statement of grounds for bringing the claim, any application for directions and copies of all other relevant documentation.

The Appeals Unit will review the draft application and if the Unit lawyer agrees with the Area decision the claim will be lodged within 10 working days.

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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.

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. Most CPS applications will be on paper, so 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.

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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.

If the claim concerns an interlocutory decision relating to bail or CTLs or a final decision then the appeal will be conducted by the Appeals Unit and the Area should provide the necessary papers to the Appeals Unit, including the claim, supporting documentation and any relevant case papers.

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 7 days after it is filed.

If the appeal is being conducted by the Appeals Unit then the Unit will prepare and lodge the acknowledgement of service. If the appeal is being conducted by the Area then it will be for the Area to 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. The principle in relation to CPS representation at such hearings follows that in Appeals to the Court of Appeal, elsewhere in the Legal Guidance.

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Case Stated

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. It must identify the question(s) of law or jurisdiction on which the opinion of the High Court is sought. (Rule 64.1(1)).

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 receipt of an application (Rule 64.2). Any representations must be made to the court within 21 days of receipt of the draft.

No evidence is called before the Administrative Court and 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 64.5(3) 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.

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

  • Form N161;
  • a copy of the decision against which the appeal is being made; and
  • the appropriate fee.

A copy of the case stated must be sent to the respondent within 4 days of lodging the same at the Administrative Court Office.

If the magistrates' court refuses to state a case on the grounds that the application is frivolous, a certificate to that effect will be given upon request. 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 Appeals Unit should be contacted for advice before any such application is made to the High Court.

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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.

The other party/parties have 21 days to agree the draft case stated or draft an alternative.

The judge will consider the draft together with any alternative and is required to sign the case within 14 days of receipt (the Crown Court can extend the time limits).

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 Unit should be consulted.

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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. The Appeals Unit will be happy to assist with this, but the primary responsibility remains with the Area. Where the Area would like assistance with the wording of the draft stated case, it is essential that the Area provide a copy of the draft document to the Appeals Unit at the earliest opportunity. Prosecutors should satisfy themselves that the draft statement sets out accurately the facts found by the magistrates, and does not merely recite the evidence heard.

Whether assistance is required or not, the Area should advise the Appeals Unit at an early stage that the appeal is to be expected.

Once the case stated has been finalised by the lower court the Area should send it to the Appeals Unit with all appropriate documentation within 5 calendar days. A lawyer from the Appeals Unit will review the documents submitted by the Area to ensure that they are of appropriate quality to be submitted to the Administrative Court.

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

The Unit 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 Appeals Unit will be responsible for serving any further documents that may be required by the Administrative Court and for briefing the advocate.

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CPS as the defendant

The Area should make any representations it feels appropriate on the draft case, served upon them by the appellant. The Appeals Unit will be happy to assist with this, but the primary responsibility remains with the Area. Where the Area would like assistance at this stage, it is essential that the Area provide a copy of the draft document to the Appeals Unit at the earliest opportunity.

Whether assistance is required or not, the Area should advise the Appeals Unit at an early stage that the appeal is to be expected.

Once the finalised case has been settled, the Area should provide any necessary papers to the Appeals Unit within 5 calendar days. The Area should notify the appellant or his solicitors as appropriate that the Appeals Unit will be taking over the case.

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

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

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Central monitoring: Notification to the Appeals Unit

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

Appeals Unit
Special Crime and Counter Terrorism Division
Rose Court, 2 Southwark Bridge
London SE1 9HS.

DX 153263 Southwark 12.
Tel: 020 3357 0079
Email: SCD.Appeals@cps.gsi.gov.uk

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

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Annex A: CPS Appeals Unit Remit - Administrative Court Cases

In general terms, the Appeals Unit will deal with all new appeal cases before the Administrative Court (AC) where:

  • the CPS is a party; and
  • the decision appealed against or being judicially reviewed is a final one.

A new appeal case is one in which the notification of appeal is lodged with the Administrative Court on or after 28 June 2010.

A final decision is a decision by a court to acquit or convict a defendant. An ancillary order, such as an order to pay compensation, or a refusal to make an ancillary order after conviction or acquittal, is also considered to be a final decision.

Additionally the Unit will deal with all applications regarding bail and custody time limits because in view of their challenging timescales they are most conveniently conducted from a central point.

CPS Area appeal cases

CPS Areas will continue to handle:

  • Any appeals by way of case stated or judicial review relating to interlocutory orders or 'in trial' appeals (i.e. those made prior to the decision to convict or acquit the defendant); and
  • Any current case already before the Administrative Court (i.e. in which the notification of appeal was lodged with that court before 28 June 2010).

Central Casework Division cases

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

Identification of final v interlocutory decisions

Appeals to the Administrative Court relate to a number of different types of case, which can make decisions on whether an application relates to a final or interlocutory decision complex.

Some orders, for example third party applications, may be either interlocutory or final orders, depending on the nature of the case.

Where such difficulties arise, the Unit, in consultation with the Area as necessary, will decide where an appeal will be dealt with.

Final

Appeals relating to the following will usually be deemed to be applications regarding final orders (dealt with by the Unit):

  • Anti-social behaviour orders, or other orders ancillary to a conviction such as an order of forfeiture of either drugs or weapons
  • Orders of binding over
  • Decisions by Crown Courts to dismiss appeals against conviction or sentence
  • Decisions by the CPS to discontinue or offer no evidence at court
  • Orders regarding wasted costs
  • Offers of conditional cautions by prosecutors
  • Refusals to state a case
  • Stays of enforcement of confiscation orders
  • Decisions and orders following a finding of unfitness to plead

In addition, where judicial review of a decision to prosecute or not to prosecute is sought, the prosecution decision will be treated as a final decision, to be dealt with by the Unit. (The court can only act on a decision not to prosecute if it decides that the respondent arrived at the decision not to prosecute because of some unlawful policy, or because the DPP failed to act in accordance with settled policy, or because the decision was perverse).

Interlocutory

Appeals relating to the following will usually be considered to be applications regarding interlocutory orders (dealt with by the Area):

  • Decisions as to the admissibility of evidence
  • Orders on Special Measures
  • Decisions not to adjourn cases (even if these have resulted in the dismissal of the prosecution case or the conviction of the defendant)
  • Decisions regarding funding of cases
  • Refusals of applications not to publish addresses under section 11 Contempt of Court Act

All decisions by magistrates' courts as to jurisdiction are to be treated as interlocutory decisions. This includes judicial reviews of decisions to commit cases to the Crown Court for trial or sentence. All such appeals will therefore continue to be dealt with by Areas.

Decisions by Crown Courts when exercising their first instance jurisdiction, but in relation to matters that do not 'relate to trial on indictment', are also to be treated as interlocutory decisions. However, the issue of whether a matter does in fact 'relate to trial on indictment' can be a complex one which, if appropriate, should be discussed with the Unit.

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