“Getting Away With It” – Adventures in the Admin Court

Edd Hetherington recently acted in two separate judicial review claims in the Admin Court.

In R (Saunders) v Bristol Magistrates’ Court [2022] EWHC 2544 (Admin), Edd acted for the Claimant who was charged with an offence of failing to provide a specimen of breath. At the first hearing a not guilty plea was entered and case management directions made. However, two days before the trial date the CPS had entirely failed to warn, or even identify, all of the relevant witnesses.

The CPS applied to adjourn the trial and an urgent oral hearing was held. The application gave no reason for the failure to warn the required witness. The defence advocate resisted the application, citing caselaw, the Criminal Procedure Rules and the consolidated criminal Practice Direction as support for the contention that the case should not be adjourned.

The bench allowed the adjournment, stating simply that such an adjournment was in the interests of justice, but giving no further reasons, even when pressed to do so. The Court’s Legal Advisor then approached the defence advocate to disclose that in the retiring room, when asked by the Advisor for reasons, one of the justices had said that the Claimant “can’t get away with it because there has been an admin error”.

Edd was instructed to advise, settle the Grounds for Judicial Review and represented the Claimant at both Permission Hearing and Substantive Hearing stages.

Allowing the claim, Chamberlain J accepted the first argument advanced which was that the decision was unlawful due to the lack of any proper reasons, but also accepted that the more difficult test for apparent bias was also met on these facts. As a result of the fundamental flaws in the decision-making process the case was sent back to the justices with a direction that they were required to acquit the Claimant of the offence alleged.
For the full judgment, please click here: https://www.bailii.org/ew/cases/EWHC/Admin/2022/2544.html

Edd was also instructed to represent the Claimant in R (Oakley) v Secretary of state for Justice [2022] EWHC 2602 (Admin). Mr Oakley stabbed his ex-partner to death in 2009 and is serving a life sentence. In 2021 a Parole Board recommended that he be moved to open conditions to consolidate and build upon significant progress made in closed conditions.

The Secretary of State refused to accept that recommendation. The Generic Parole Process Policy Framework permits the Secretary of State to reject a Parole Board recommendation in a range of situations, including where “there is not a wholly persuasive case for transferring the prisoner to closed conditions at this time”. This was the power relied upon by the SoS in this case.

The application for Judicial Review turned upon a finding of fact made by the Parole Board that there was no further core risk reduction work available for the Claimant to complete in the closed prison estate. The SoS disagreed with this finding, but offered no justification or good reason for departing from that finding. This failure rendered the decision unlawful and the Admin Court quashed the refusal of the SoS to transfer the Claimant.

For the full judgment, please click here: https://www.bailii.org/ew/cases/EWHC/Admin/2022/2602.html

On a side note, both of these applications were initially refused permission on paper by single High Court Judges and required oral renewal hearings. A useful reminder that if you have faith in your arguments, persistence is a virtue.

If you would like to discuss Judicial Review, or the possible merits of using it in a particular case, please contact Nick Jeanes or Ken Duthie, who would be very pleased to assist in guiding you to an appropriate member of the team.