Appeals to the Administrative Court
Last updated 31/03/08
- Guidance
- Procedure
- Case stated in the Magistrates Court
- Case stated from the Crown Court
- Judicial Review
- Director/CPS as Claimant
- The Director/ CPS as Defendant
- Area and Policy Directorate Responsibilities
- Timing
Guidance
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 Sections 111/4 Magistrates Courts Act 1980, Rules 76/81 Magistrates Courts Rules 1981, Section 28/31 Supreme Court Act 1981, Rule 26 Crown Court Rules 1982 and Civil Procedure Rules 54.
Section 111 Magistrates Courts Act 1980 and Section 28(1) Supreme Court Act 1981 provides 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/it is wrong in law or in excess of jurisdiction.
No evidence is called before the Administrative Court and is based solely on the facts stated in the case. Therefore prosecutors must ensure that the case stated accurately and fully records all the facts.
Procedure
Case stated in the Magistrates Court
Justices can only state a case after they have reached a final determination of the matter.
The formal application to the justices to state a case must be in writing and made within 21 days of the decision. It must identify the question(s) of law or jurisdiction on which the opinion of the High Court is sought
The first draft is prepared by the justices clerk and sent to the appellant and respondent within 21 days and any representations must be made within 21 days of receipt of the draft.
On receipt of the case stated the appellant must lodge 3 copies in the Administrative Court Office within 10 days after receiving the case stated together with Form N161 (Refer to HM Courts Service) 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 refuse 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. Policy Directorate should be contacted for advice before any such application is made to the High Court.
Case stated from the Crown Court
After the judge has agreed to state a case the first draft 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 CPS 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 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, Policy Directorate should be consulted.
Judicial Review
There is an overlap between the quashing order 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 and 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.
Director/CPS as Claimant
Applications for permission to apply for judicial review should be made as soon as possible and in any event within 3 months from the date of the decision in respect of which relief is sought
The application for permission to move for judicial review is made by completing Form N461 (Refer to HM Courts Service) with supporting statement of truth verifying the facts relied on and lodging the application together with the appropriate fee
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
Form N461 is the basis of the claimants case at the substantive hearing and it should therefore set out concisely the points of law and fact(s) upon which the CPS relies.
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 claimants case.
A copy of the relevant order against which relief is sought must be lodged in the Administrative Court Office
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.
The Director/ CPS as Defendant
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. On receipt of a claim form an acknowledgement of service, Form N462 (Refer to HM Courts Service) 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.
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 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 and References to the Court of Appeal, elsewhere in this guidance>
Area and Policy Directorate Responsibilities
In relation to both Case Stated and Judicial Review, Areas may consult with Policy Directorate on whether to appeal and issues relating to casework if it considered appropriate to do so, but are otherwise responsible for handling their own cases in the Administrative Court. However, all Administrative Court cases must be notified to Policy Directorate. In exceptional circumstances Policy Directorate may wish to have an input or take over the handling of a case. There will also be occasions when cases which raise related issues should be handled by one Area.
Policy Directorates role is to act as a clearing house for information to ensure a consistent application of policy, give appropriate guidance and disseminate relevant information to Areas. It also acts as a central point of contact for the Administrative Court and maintains a register of all Administrative Court cases. To fulfill those roles it is essential that Areas inform Policy Directorate of all cases and developments, which may have national implications. Any case likely to result in a change in statutory or case law interpretation, or which may affect the CPS in any other way, should be reported. If in doubt, notify.
Timing(Item 1 should be sent as soon as it is received / prepared, with the other items following as soon as they are available.)