Aru, R (On the Application Of) v The Chief Constable of Merseyside

Whether proceedings fall within section 18(1) of the Supreme Court Act 1981 depends on the nature and character of the underlying proceeding, viewed as a whole, rather than its procedural label or the particular order challenged. A formal police caution is a criminal cause or matter because it disposes of alleged criminality as an alternative to prosecution and carries continuing criminal consequences. Judicial review does not change that character. Article 6 does not create a general right of appeal, and Article 2 of the Seventh Protocol did not provide an applicable route in this case.

Mr Charlie Aru sought judicial review of a formal police caution administered by Merseyside Police for an alleged offence under section 5 of the Public Order Act 1986. He alleged that his admission and consent resulted from police mistreatment and an improper inducement. Elias J heard oral evidence, resolved the factual dispute in favour of the police officers and held that the application failed.

When Mr Aru sought to appeal, Master Venne ruled that the Court of Appeal had no jurisdiction because the matter was a criminal cause or matter. Simon Brown LJ granted permission to appeal that jurisdictional ruling. The central issues were whether the caution and judicial review proceedings fell within section 18(1) of the Supreme Court Act 1981, and whether Convention rights supplied an alternative appellate route.

The appeal was dismissed unanimously. Maurice Kay LJ delivered the first judgment, with Longmore LJ and Waller LJ agreeing.

1. Characterisation of the proceedings. The issue was jurisdiction, not the merits of the challenge to the police evidence. Under section 18(1) of the Supreme Court Act 1981, no appeal lies to the Court of Appeal from a High Court judgment in any criminal cause or matter. The expression is wider than criminal proceedings. The court must examine the nature and character of the underlying proceeding and take an overall view, rather than analyse the particular order in isolation. Amand v Home Secretary [1943] AC 147, Government of the United States of America v Montgomery [2001] 1 WLR 196, Day v Grant [1987] 1 QB 972 and South West Yorkshire Mental Health NHS Trust v Bradford Crown Court [2003] EWCA Civ 1857 supported that approach.
2. Nature of a formal caution. A caution is another method of disposing of a criminal matter. It is administered as an alternative to possible prosecution and conviction, involves acceptance of criminality, and has continuing consequences. Records may affect later prosecution, the ability to rely on good character and sentence. The caution therefore fell on the criminal side of the line. The preventive and civil character of anti-social behaviour order proceedings, recognised in Clingham v Royal Borough of Kensington and Chelsea [2002] UKHL 39, did not alter that conclusion.
3. Convention arguments. Article 6 does not confer a right of appeal, although it applies to an appeal where domestic law provides one. A limited domestic appellate route does not itself engage Article 6. Article 2 of the Seventh Protocol did not assist the appellant because it had not been incorporated into English law by the Human Rights Act 1998, and a caution could be challenged by judicial review.
4. Order. Neither section 18(1) nor Convention law conferred jurisdiction on the Court of Appeal. The appeal from Master Venne’s order was dismissed. The appellant was ordered to pay the respondent’s costs, subject to detailed assessment.

• Court of Appeal (Civil Division): Dismissed the appeal from Master Venne’s jurisdictional order, holding that the matter was a criminal cause or matter and that no Convention-based appellate jurisdiction arose.
• High Court, Administrative Court: Elias J heard the judicial review application with oral evidence, rejected Mr Aru’s factual case against the police officers and held that the application failed.