Hussain, R (on the application of) v Crown Prosecution Service

A decision made by a High Court judge exercising the jurisdiction of the High Court is not amenable to judicial review. The principle applies even where the decision concerns detention and engages fundamental rights. The relevant question is the capacity in which the judge acted, not the location of the hearing or the practical importance of the decision.

Where legislation requires an application to be made to a judge of the High Court, the provision should be read as conferring jurisdiction on that judge in his or her capacity as a High Court judge. Article 5(4) of the European Convention on Human Rights requires a fair opportunity to challenge the lawfulness of detention, but does not necessarily require a further appeal or judicial review of the High Court judge’s decision.

The claimant was arrested on suspicion of involvement in terrorism. District judges twice extended his detention. On 23 August 2006, Collins J, exercising powers under the Terrorism Act 2000 as amended by the Terrorism Act 2006, extended detention to 21 days from arrest.

The claimant sought permission to apply for judicial review of that decision. He argued that insufficient particulars had been provided to justify continued detention and that the judge had failed to give adequate reasons concerning whether there was sufficient evidence to charge him. The preliminary issue was whether a decision of a High Court judge under Schedule 8 paragraph 36 was amenable to judicial review, including in light of Article 5(4) of the European Convention on Human Rights.

1. Application refused. The court held that Collins J had acted as a judge of the High Court, exercising jurisdiction conferred on him in that capacity. His decision was therefore not amenable to judicial review.
2. The governing principle was stated in Re Racal Communications Ltd [1980] 2 All ER 634; In Re a Company [1981] AC 374. Judicial review supervises inferior courts and tribunals, and persons exercising administrative or legislative powers. It does not enable the High Court to review its own decisions or those of High Court judges acting judicially. Such decisions can be corrected only by appeal, where an appeal exists.
3. The statutory language did not create an intermediate category. Schedule 8 paragraph 36(1A)(b), read with paragraph 36(7), required the application to be made in England and Wales to a judge of the High Court. The use of the expression senior judge reflected the need to accommodate three jurisdictions and did not alter the judge’s capacity. The hearing’s location at a magistrates’ court was irrelevant because it was chosen for logistical reasons.
4. The fact that decisions by district judges under the same paragraph might be reviewable did not affect the position of a High Court judge. The allocation of particularly important detention decisions to a senior judge was intelligible and consistent with finality.
5. Article 5(4) did not require a further appeal or judicial review. The hearing before Collins J gave the claimant a fair opportunity to raise issues concerning the lawfulness of continued detention and to obtain a judicial ruling. The court therefore refused permission at the jurisdictional stage. It declined to determine the substantive grounds, while indicating provisionally that neither appeared properly arguable. A certificate of general public importance was refused.