ADMINISTRATIVE LAW

The secretary of state was not obliged to exercise his power under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.128 as a means of relaxing the Parole Board’s test for releasing prisoners serving existing sentences of imprisonment for public protection, following the abolition prospectively of such sentences from December 2012. Given the difficulties in finding a suitable alternative release test, the secretary of state was entitled to instead improve the operation of those sentences to enable more prisoners to meet the conditions for release.

[2017] EWHC 1948 (Admin)

The court set out the principles of procedural fairness standards that applied when the secretary of state considered applications from life prisoners for release on compassionate grounds under the Crime (Sentences) Act 1997 s.30.

[2017] EWHC 1967 (Admin)

Although it was not necessary to decide in the instant case, in terms of decisions made by the CPS under the Victim’s Right to Review scheme, the court was prepared to assume that a mistake of fact giving rise to unfairness, if made out, was capable of founding a claim for judicial review of a decision not to prosecute a suspect.

[2017] EWHC 1768 (Admin)

A prisoner had not suffered procedural unfairness where the prison governor upgraded his security category and status based on information that the prisoner was potentially involved in trafficking illegal substances and products into the prison. Although the governor had not fully disclosed the reasons for his decision, such non-disclosure could be justified on the basis of protecting sources of information, intelligence methods and the integrity of an ongoing investigation, and was statutorily recognised by the Data Protection Act 1998 s.29.

[2017] NIQB 65

In a terrorist investigation, the application for and issue of a search warrant, the subsequent search of an individual’s property and the seizure of goods had not been unlawful. The court gave guidance on the procedures in Northern Ireland for search warrant applications and the disclosure of information supporting applications for search warrants: an application by a property owner for disclosure of the information that had led to the granting of a warrant by a lay magistrate should be made to the magistrates’ court and heard by a district judge.

[2017] NIQB 61

An applicant had not been sufficiently prompt and so was out of time to apply for judicial review of a decision by the Director of Public Prosecutions for Northern Ireland not to refer a sentence to the Court of Appeal for being unduly lenient. Neither a pending application for legal aid, nor an intention to try and change the DPP’s mind were reasonable objective excuses for applying late, and ordering the DPP to lodge a provisional notice of referral pending the outcome of the judicial review application was contrary to the legislative scheme and would cause hardship.

[2017] NIQB 66

There was no reason to set aside or vary a costs order made against the Director for Public Prosecutions in respect of judicial review proceedings brought against her. The DPP had failed to take any steps in the costs application whatsoever, without any good explanation.

[2017] EWHC 714 (admin)

Although a police officer had prompted evidence in a murder investigation from an unreliable witness, the CPS had taken an independent decision to charge four individuals and their claims for malicious prosecution failed. For the same reason a claim for misfeasance in public office against the officer failed with respect to three of the four; he had not caused them any loss because the CPS would have prosecuted them anyway.

[2017] EWHC 273 (QB)

A local authority’s byelaws limiting the period for which a boat could be moored against its land had been made for a proper purpose, namely preventing the nuisance of limited river access for others, and were not irrational or invalid. A houseboat owner convicted for breach of the byelaws had failed to show that they breached ECHR art.8 rights in principle or on the particular facts of his case.

[2017] EWHC 84 (Admin)

Provisions in the Criminal Injuries Compensation Scheme excluding the making of compensation awards to applicants with unspent convictions which had resulted in custodial or community sentences did not constitute a disproportionate interference with their ECHR rights. An applicant’s inchoate entitlement to compensation based on their satisfaction of the scheme’s eligibility criteria did not amount to a “possession” for the purposes of Protocol 1 art.1.

[2017] EWHC 2 (Admin)

A magistrates’ court had erred in not allowing a defendant to give evidence regarding an alleged breach of his bail conditions. A defendant wishing to give oral evidence should be entitled to give it and the legal adviser had proceeded on a mistaken understanding of the law.

The court reiterated that there was a “very high hurdle” to overcome when seeking to challenge a decision of investigators of the Serious Fraud Office. While none of the authorities precluded a challenge, they lent no encouragement to the bringing of any such challenge.

[2016] EWHC 2471 (Admin)

The policy of the CPS to refuse to review decisions to prosecute some, but not all, possible suspects was lawful. Such decisions were a matter for independent prosecutorial judgement, and the CPS guidance provided discretion for a review of such a decision to take place in exceptional circumstances.

[2016] EWHC 2447 (Admin)

On a proper construction of the Crime (Sentences) Act 1997 s.28(5), the Secretary of State for Justice was not under any duty to release a life prisoner as soon as the Parole Board had directed their release. In a case where residence at approved premises was specified as a licence condition, she was only obliged to release once a place at the approved premises was available for the prisoner.

[2016] EWHC 2057 (Admin)

When a designated person appealed against an asset-freezing order under the Terrorist Asset-Freezing etc. Act 2010 s.26, the Treasury had to justify the order it had made. The court concluded that designation had been justified to prevent the appellant providing financial assistance to a proscribed organisation, but the renewal of the designation was not justified when, by the time of renewal, different circumstances applied.

[2016] EWHC 2039 (Admin)

The court considered the extent of the secretary of state’s discretion when serving a foreign judgment under the Crime (International Co-operation) Act 2003 s.1. Service of a judgment was not the same as enforcement of it. In circumstances where service would not have a direct and material impact on the recipient, the secretary of state was under no obligation to investigate the consequences of effecting service. However, there might be cases where service of a judgment would engage ECHR art.6 and where further investigation was called for.

[2016] UKSC 37

A fitness to practise committee of the General Pharmaceutical Council had been entitled to remove a pharmacist from the register of pharmacists after she had received a caution for fraud by false representation. In any case involving dishonesty in disciplinary hearings, non-attendance amounted virtually to courting removal. Disciplinary bodies should forewarn defendants, not just that a hearing might proceed in their absence, but also that the consequences of non-attendance were likely to be severely prejudicial.

[2016] EWHC 1050 (Admin)

The power to set aside the grant of leave for judicial review should be exercised very sparingly. The alleged breach of a claimant’s ECHR rights by a public body was a public law issue and he was entitled to assert that right in a public law court.

[2016] NIQB 42

The court gave guidance on the approach to be adopted in cases of judicial review of the Victims’ Right to Review Scheme.

[2016] EWHC 1426 (Admin)

Whilst there had been a procedural error by a judge in conducting a review of a prisoner’s minimum term for murder by considering a victim personal statement by the victim’s widow, who did not want the statement to be disclosed to the prisoner, the statement was irrelevant to the main issue in the review, which was whether the prisoner had made exceptional progress. Therefore, there was no material unfairness to justify quashing the secretary of state’s decision to accept the judge’s recommendations and refusing to reduce the prisoner’s minimum term.

[2016] EWHC 984 (Admin)

The court was prevented by the Senior Courts Act 1981 s.31(2A) from making a declaration that the Secretary of State for Justice had failed to discharge his public sector equality duty under the Equality Act 2010 s.149 where the outcome would have been the same had that duty been discharged, since the claimants had not suffered any loss as a result.

[2015] EWHC 3599 (Admin)

In proceedings concerning the legality of search warrants, it was held that there was no general rule preventing an application to the Crown Court under the Criminal Justice and Police Act 2001 s.59 for the retention of seized property until every issue raised in a judicial review claim had been resolved by the High Court.

[2015] EWHC 3415 (Admin)

The Court of Appeal’s provisional view was that the decision in Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (C-293/12) [2015] Q.B. 127 did not, in the context of the retention of, and access to, communications data, lay down mandatory requirements of EU law with which national legislation had to comply. However, the court referred questions to the European Court of Justice on that point.

[2015] EWCA Civ 1185

Decisions to continue to segregate two prisoners had been unlawful, as they had not been authorised by the secretary of state and were unfair at common law. Any purported performance of his function under the Prison Rules 1999 r.45(2) by a governor or other prison officer could not be treated as performance by him.

[2015] UKSC 54

Although there had been a clear and unambiguous representation devoid of relevant qualifications, giving rise to a substantive legitimate expectation that a public inquiry would be established to examine the murder of the applicant’s husband, there were overriding interests, including cost, which justified the secretary of state for Northern Ireland in frustrating her expectation by ordering a review instead.

[2015] NIQB 57

When assessing whether it was in the interests of justice to refer an informer’s sentence to the court for review, the prosecutor’s first task was to determine whether the court could conclude that the circumstances had changed. The instant prosecutor had not done that and her decision not to refer two informers’ sentences was quashed.

[2015] NIQB 33

The High Court rejected an application by the Security Service to strike out claims brought by a number of Libyans for false imprisonment, misfeasance in public office and conspiracy. The claims arose from allegations that the Security Service had withheld evidence during earlier proceedings before the Special Immigration Appeals Commission and the High Court concerning the claimants’ unlawful detention pending deportation, and their subjection to unlawful control and asset-freezing orders. The claimants were entitled to bring private law claims without appealing against the earlier SIAC and High Court rulings.

[2015] EWHC 60 (QB)

The UK government was not obliged to hold a referendum before notifying the European Council of its intention to participate in the Council Framework Decision on the European Arrest Warrant (EAW) and there was no legitimate expectation that a parliamentary vote would be held in relation to the specific issue of the EAW before such a notification was given.

[2014] EWHC 3815 (Admin)

A trial judge’s order under the Contempt of Court Act 1981 s.11 to protect sensitive information heard in camera in a murder trial, which had been made on national security grounds, would not be varied to enable the defendant to present a complaint to the European Court of Human Rights based on an alleged breach of his right to a fair trial.

[2014] EWHC 3558 (Admin)

The powers of the Independent Police Complaints Commission, when reporting on a special requirements investigation into a complaint about a police officer’s conduct, were confined to stating whether the officer had a case to answer in misconduct proceedings and did not extend to expressing apparently conclusive findings by the investigator as to whether the officer’s conduct was reasonable and/or unlawful.

[2014] EWCA Civ 1367

The consultation process into changes in the provision of criminal legal aid services had been procedurally flawed. The Lord Chancellor’s failure to consult upon the content of two reports which had determined the number of contracts to be offered to law firms had been so unfair as to result in illegality.

[2014] EWHC 3020 (Admin)

The power under the Mental Health Act 1983 s.35 to remand an accused to hospital for a report on his mental condition could not be used to enable the Crown to obtain evidence about whether the accused had the intention, or the capacity to form the intention, to commit an offence of grievous bodily harm. The Divisional Court quashed a s.35 order made by the Crown Court, even though the Senior Courts Act 1981 s.29(3) excluded High Court jurisdiction, because the misinterpretation of s.35 was a defect so severe that it deprived the Crown Court of jurisdiction to make the order.

Marina owners who had each been ordered to pay £15,000 in costs following their convictions for constructing coastal protection measures without a marine licence were entitled to challenge the costs orders by way of judicial review. Considering the combination of the large penalties imposed and the offenders’ comparatively limited resources, the costs orders were unlawful and replaced with an order that the offenders pay a total of £5,400 in costs.

[2014] EWHC 2462 (Admin)

It was not appropriate to allow proceedings for judicial review of the lawfulness of a search warrant to take place at the same time as a criminal trial which relied upon at least one item seized during the search. It was not in the public interest for a criminal trial to be disrupted, and it was open to the defendant to challenge the admissibility of the seized evidence during the criminal trial.

[2014] NIQB 57

A decision not to grant bail to a 17-year-old with no previous convictions, following his charge for grievous bodily harm, was Wednesbury unreasonable as the judge had relied on speculative and highly improbable matters that had been neither raised by the prosecution nor put to the defence.

The English High Court did not have exclusive jurisdiction to hear an application for judicial review, by a restricted transfer prisoner who had been transferred to Northern Ireland from England, challenging a decision of the Secretary of State for Justice of England and Wales not to seek advice from the Parole Board as to his suitability for open conditions. The secretary of state’s office was indivisible and present throughout each part of the UK so that she had to be considered to be domiciled in Northern Ireland, and accordingly the High Court of Northern Ireland also had jurisdiction in relation to the issues raised in the judicial review claim.

[2014] NICA 23

A chief constable was entitled on public interest immunity grounds to withhold material which had led to a refusal to give a vehicle break-down service provider security clearance because he was suspected of criminal activity, even though that decision harmed the service provider’s commercial interests and reputation.

In failing to provide a life prisoner with the means by which he could demonstrate that he constituted a reduced risk such as to enable him to progress to a lower security prison category and to become suitable for release, the Secretary of State for Justice had breached his public law duty to act rationally.

[2013] EWHC 2323 (Admin)

Pre- and post-trial decisions in the Crown Court concerning bail were amenable to challenge by judicial review. However, decisions concerning bail during a criminal trial could not be challenged by judicial review as such decisions fell within the prohibition in the Senior Courts Act 1981 s.29(3).

[2013] EWHC 2752 (Admin)

A prison governor who had relied on a flawed RC1 risk assessment form when approving the recategorisation of a prisoner from Category C to open conditions had been entitled to reverse his decision upon learning that the form had omitted to refer to an unsatisfied confiscation order, which meant that the prisoner was at a higher risk of absconding than previously thought. No elaborate reasons for the reversal were needed; it was acceptable simply to explain his view that the existence of the confiscation order was decisive against recategorisation.

[2013] EWHC 1821 (Admin)

The Crown Court did not have jurisdiction to examine the circumstances of the issue of a warrant by a magistrates’ court. The ground of challenge to seizure provided by the Criminal Justice and Police Act 2001 s.59(3)(a) did not enable an applicant to challenge the validity of the warrant, pursuant to which the seizure was conducted, in the Crown Court.

[2013] EWHC 1726 (Admin)

The Department of Justice in Northern Ireland had a discretionary power to reconsider an earlier decision of the secretary of state to refuse compensation under the Criminal Justice Act 1988 s.133 for people who had spent time in custody following a wrongful conviction.

[2013] NIQB 59

No opinion was expressed on the arguability of the proposition that, as a result of the decision in Lesoochranarske Zoskupenie VLK v Ministerstvo Zivotneho Prostredia Slovenskej Republiky (C-240/09) [2012] Q.B. 606, the principles derived from R. (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 W.L.R. 2600, as modified in the case of R. (on the application of Garner) v Elmbridge BC [2010] EWCA Civ 1006, [2011] 3 All E.R. 418, should be applied to applications for costs protection in cases falling within the UN Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998 art.9.

[2013] EWCA Civ 628

A local authority had fully complied with its enforcement policy before deciding to prosecute a pub-owning company for a serious breach of the Food Hygiene (England) Regulations 2006.

[2013] EWHC 898 (Admin)

The decision of the Secretary of State for the Home Department to allow extradition of a United Kingdom citizen to Spain, where he had been charged with co-defendants who had already been found guilty of massive fraud, had been reasonable. The proceedings against him regarding offences committed 22 years earlier had been brought within the Spanish limitation period, and extradition was not unjust or oppressive.

[2013] EWHC 813 (Admin)

The Secretary of State for the Home Department, in the exercise of her discretion under the Crime (International Co-operation) Act 2003 s.1 as to whether to serve a foreign judgment on a national of that country residing in the United Kingdom, should have considered evidence showing that it had been obtained in flagrant disregard of justice. Further, the facts of the case met the high test required for engagement of the European Convention on Human Rights 1950 art.6.

[2013] EWHC 663 (Admin)

In the light of the CPS’s new process for reviewing decisions not to prosecute, the court made the following observations. First, judicial review proceedings should not be brought until the CPS had had an opportunity to conduct a further review under its victim right of review procedure. In the ordinary case, if a challenge was brought before that right of review had been taken up, it should not be entertained by the court. Second, if there had been a review in accordance with that procedure then the prospect of success would be very small.

[2013] EWHC 1752 (Admin)

Where young people had been subjected to unlawful restraint techniques while detained in secure training centres, but had not appreciated that the techniques were unlawful, the secretary of state was under no obligation to tell them that they had been unlawfully restrained so as to enable them to seek legal redress.

[2013] EWCA Civ 34

Despite a substantial delay in applying for judicial review, it was in the public interest to quash a court’s decision purporting to lift a sexual offender’s notification requirements. The court lacked power to make that order, and the grant of relief upheld the rule of law and ensured that all applications to life notification requirements were dealt with under the same procedure.

[2013] EWHC 179 (Admin)

A defendant’s challenge to a decision by the Public Prosecution Service (Northern Ireland) to prosecute him for assault, having twice been informed that he would not be prosecuted, could be effectively pursued within the proceedings before the criminal court, as there were no exceptional circumstances to justify seeking a remedy through judicial review.

[2012] NIQB 102