Saxon, R (on the application of) v Criminal Cases Review Commission

Whether proceedings are a criminal cause or matter depends on the nature of the underlying decision, rather than the outward form of the proceedings or the identity of the public authority involved. Judicial review of a refusal by the Criminal Cases Review Commission to refer a conviction or sentence to the Court of Appeal (Criminal Division) concerns a criminal cause or matter. The Civil Division therefore has no jurisdiction to hear an appeal from the Divisional Court in such proceedings under section 18(1)(a) of the Supreme Court Act 1981.

The applicant sought permission to appeal to the Civil Division from the Divisional Court’s refusal of permission to apply for judicial review. The proposed judicial review challenged the Criminal Cases Review Commission’s refusal to refer the applicant’s 1996 dishonesty convictions to the Court of Appeal (Criminal Division).

Master Venne determined that the matter was a criminal cause or matter and that the Civil Division had no jurisdiction. The applicant sought reconsideration under CPR 52.16(5) and (6). The central issue was whether judicial review of the Commission’s refusal to refer the convictions was itself a criminal cause or matter.

1. Application refused. The court reconsidered Master Venne’s decision and confirmed it.
2. Section 18(1)(a) of the Supreme Court Act 1981 removes the Civil Division’s jurisdiction to hear an appeal from the Divisional Court in any criminal cause or matter.
3. The court followed R v Secretary of State for the Home Department, ex parte Garner (unreported, 15.6.90). In that case the categorisation depended entirely on the nature of the underlying decision sought to be judicially reviewed.
4. The power formerly exercised by the Secretary of State under section 17 of the Criminal Appeal Act 1968 was materially replicated by section 9 of the Criminal Appeal Act 1995. A reference by the Commission is treated as an appeal against conviction or sentence. The reasoning in ex parte Garner therefore applied equally.
5. The fact that the Commission was independent, that the proceedings took the form of judicial review, and that damages were also claimed did not alter the character of the underlying decision. The relevant subject remained the applicant’s criminal convictions and the proposed referral to the Court of Appeal (Criminal Division).
6. The court accepted that the statutory provisions governing appeals to the House of Lords might create difficulties for a person in the applicant’s position. That issue was outside the jurisdiction of the Civil Division and was left unresolved.

• Court of Appeal (Civil Division): reconsidered and confirmed Master Venne’s direction that the matter was a criminal cause or matter and refused the application.
• Divisional Court: refused the applicant’s renewed application for permission to apply for judicial review.
• Master Venne: directed that the proposed appeal concerned a criminal cause or matter and therefore could not be heard by the Civil Division.