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Criminal Justice and Courts Bill: the erosion of accountability

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

I wrote a piece in November regarding the consultation over changing the process for judicial review, and on 4th February the government issued their response and published a Bill containing their full proposals. It is welcome news that the government have decided not to press ahead with changing the rules of standing, but there are still troubling issues raised within the Criminal Justice and Courts Bill.

As explained in my previous piece, standing is the preliminary test applied by the courts in deciding whether a person is able to bring a judicial review claim. The current test is a requirement of ‘sufficient interest’ unless a planning decision which requires a stricter test. The government have acknowledged that restricting standing would not be the correct approach, but as is clear from paragraph 35 of the formal consultation response, the objective remains the same:

The Government’s view is that the better way to deliver its policy aim is through a strong package of financial reforms to limit the pursuit of weak claims and by reforming the way the court deals with judicial reviews based on procedural defects.

The change of heart on this policy has been attributed to the response provided by the judiciary who were concerned with the rule of law being fundamentally undermined by wholesale restriction of challenging government decisions. In order to achieve their stated objective, the government are planning to make it more financially burdensome for claimants to come to court and more risky for lawyers to represent claimants.

Clause 50 of the Bill provides that a court should refuse to give relief to a claimant if “it appears to the court highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” (emphasis added). This is a very drastic measure as it means that a decision-maker could get the law completely wrong or act dishonestly and the court would not grant a remedy if there is a considerable chance that the same result would have been achieved without the procedural defect. Since its beginnings, judicial review has been almost solely focused on procedure rather than the merits of each decision. However, under the proposals the judge will have to speculate about what the decision might have been despite the fact that claims at issue will often be highly technical in nature, especially in the planning or environmental context. Although judges are extremely experienced in the law, they do not have the requisite expertise to examine the complex material involved in the cases. The change will also mean that trials last for a longer period as the judge will have to hear more submissions on the point and may take longer in deliberations.

The effect of the clause would be to stop the courts granting any relief in cases where the decision would not have been different. However, this ignores several cases where the court makes a declaration that there has been a procedural violation but refuse substantive relief. The role of judicial review will be undermined as a result because less attention will be given to instances where government decision-makers have gone beyond their statutory powers. It will also restrict the ability of the courts to issue forward-facing guidance on the future application of policy or decision-making processes. A problem with these restrictions is that the purpose of judicial review will be undermined as figures of successful claims will not truly reflect the amount of decisions taken by public bodies that are procedurally if not substantively wrong. The higher proportion of failures of claims might further support government arguments for further restrictions upon the court process.

PCOs

Protective Costs Orders can currently be granted in cases of judicial review to limit the amount of costs recoverable by the defendant against the claimant. The governing principles for the grant of Protective Costs Orders are found in the Corner House Research case from 2005. (A helpful summary can be found here) The court must be satisfied that the issues raised are of general public importance and require resolution, the applicant has no private interest in the outcome of the case, it would be fair just and reasonable to make the order and the applicant will probably discontinue the proceedings if no Order is granted. It is obvious from these criteria that the most frequent applicants for PCOs are non-governmental organisations, charities and local campaign groups that have limited financial capabilities.

The Bill seeks to codify the rules of common law but there is a new limitation on applications for PCOs found in clause 54(3) that they will only be available if permission has already been granted by the court. This is troubling because defendants, often public bodies, will often incur pre-permission costs over £10,000 and therefore a claimant would have to take on the risk of being landed with those costs were the permission not granted. The organisations that apply for PCOs are by their very nature financially vulnerable, and under the common law they already have to disclose their funding sources in the process of applying for a PCO. The new restriction will render PCOs almost useless because claimants will be deterred from seeking permission in the first place and thus will not get the chance to apply for an order even when the case might be of extremely high public importance. The Lord Chancellor will also be granted the power to add, omit or amend through secondary legislation any matters “to which the court must have regard” when determining the meaning of “public interest”.

This clause reflects the apparent disregard that the current government has for the vital role which campaigning organisations have in holding executive decision-makers to account. Many claims brought under a ‘public interest’ framework will affect a wide range of people who do not have the expertise or knowledge in the law to understand their rights. The government seem to be intentionally misleading in their presentation of this clause. It is presented as a concession by the government after their initial threat of abolishing PCOs and a recognition of their usefulness, but in effect the proposals will render them all but useless in the context that they are required.

Increasing role for permission hearings

Further to restricting PCOs to post-permission hearings, the government are seeking to increase the role that pre-permission applications will play in the process of judicial review, which will undoubtedly increase the costs incurred by both sides.

Currently, before a full court proceeding can take place a permission hearing is held where the claimant must convince a judge that his claim is at least ‘seriously arguable’. Often a defendant will not appear at such a hearing as they are not entitled to costs if they are successful, but this will be overturned by the new Bill. This will turn the permission hearing into a mini-trial where the defendants will be incentivised to get the claim rejected as soon as possible with the promise of recovering costs from the applicants. Furthermore, the ‘makes no difference’ principle in clause 50 can be raised in pre-permission hearings. Therefore, the court may not actually proceed with examining the procedural defects of a decision in a full trial setting so long as the defendant is able to convince the judge during permission stage that the decision would not have been different.

The proposal on pre-permission hearings are the complete opposite to the arguments put forward by respondents to the original consultation who argued that defendants who contested permission and failed should be liable to full costs, in order to ensure that the permission stage remained as a low-cost filter. This would be a far more effective system as it would stop defendants trying to resist worthwhile claims and adding to the costs of the claimants.

A further issue to note regarding permission hearings is that publicly funded lawyers’ fees for claims will be refused if permission is not granted or the case settles before a full trial. The government has stated that where cases settle, the Legal Aid Agency, the body responsible for legal aid payments, will have discretion to pay fees in meritorious cases. This is a very heavy-handed approach to funding of claims, which was opposed by the judiciary. Their consultation response stated that costs should not be recoverable only in cases where the application is ‘totally without merit’ with costs to be funded in the usual way. The judiciary were opposed to any refusal of payments by the Legal Aid Agency unless a ‘safeguard’ was put in place whereby the judge would allow fees to be paid if the claim had been ‘properly arguable’. The changes as currently proposed may actually have the opposite effect to the objectives of the government as judges will be reluctant to refuse permission in publicly funded cases. This may reflect a view within government that publicly funded lawyers are well-paid, for a debunking of this myth see my earlier article on legal aid practitioners.

Interventions

Non-governmental organisations and charities are often involved in judicial review proceedings after the claim is originally brought by an individual or smaller organisation. The NGO can be asked to intervene by the court because of their particular expertise in a given field, obvious examples would be organisations such as Greenpeace, Amnesty or Liberty. Once joined as an intervener, the court is able to restrict their role within the trial to limit the amount of evidence that may be called. The general rule is that interveners will be liable for their own costs and unable to recover from the defendant, and if their intervention is unreasonable or misguided then they will be liable for the costs of the defendant in resisting their evidence. In practice, interveners rarely have to pay costs, the judiciary stated in its response that this low number “reflects the expertise of the court that, not uncommonly, it benefits from hearing from third parties”.

But if Clause 53(4) of the Bill is enacted in its current form it could mean the end to interveners in judicial review cases that are below the Supreme Court. The court “must order the intervener to pay any costs specified… as a result of the intervener’s involvement” and can only refuse to make such an order in “exceptional circumstances”. There is a loophole contained within the clause that such an order is not required if the court invites them into the proceedings rather than accepting a request, but the thrust of the clause will undoubtedly restrict the number of interveners that appear in the courts. When considering this restriction, one should bear in mind that interveners can also act for the defendant and were recently described as “extremely helpful” in the recent Supreme Court case IA v Secretary of State for the Home Department [2014]. Potential interveners may be more positive in light of these comments because it shows that the court may be willing to invite experienced third parties to join the litigation on a regular basis to subvert this rule.

Leapfrog Appeals

Following on from the above, it is not all bad news for those wishing to pursue judicial review, as claims will now be able to ‘leapfrog’ the Court of Appeal in cases where there is a pressing need for a resolution as quickly as possible. This will prevent claims being strung out to the detriment of both claimant and defendant and also lighten the burden on the Court of Appeal.

The process of the Bill – what is likely to change?

The Bill was only published on Wednesday and is due its first reading on 24th February and will hopefully be subject to the full scrutiny of both Houses of Parliament. The current government have been prone to knee-jerk reactions to political events and pressure, as shown by the recent Lobbying Bill. This was rushed through both Houses in under 4 months despite serious misgivings from Members of Parliament and charities (check back next week for an article on this subject). But there is some hope that changes will come to the proposed legislation and it may once again fall to the House of Lords to uphold the rule of law, as they have done with regards to the ‘annoyance injunction’ proposal.

Further Reading

Adam Wagner, UK Human Rights Blog, ‘Don’t be fooled by the “concessions”, there is still a real threat to Judicial Review’.

B. Jaffey and T. Hickman, UK Constitutional Law Association, ‘Loading the Dice in Judicial Review: The Crime and Courts Bill 2014’.

Ryan Turner, Keep Calm Talk Law, ‘Judicial Review - The Protector of Those without a Voice’.

Ryan Turner, Keep Calm Talk Law, ‘Legal Aid: The Day of Action – What Next?’.

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Tagged: Judicial Review, Justice

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