B v Carlisle Crown Court

The Administrative Court exercises very limited supervision over proceedings in the Magistrates’ and Crown Courts. It will not intervene merely because witnesses appear to have been treated differently, where the difference is explained by the way the defence case was presented. Judicial questioning of witnesses is not, without more, evidence of bias. However, questioning defence witnesses to disclose their previous convictions may amount to a material irregularity where section 100 of the Criminal Justice Act 2003 does not permit the evidence and the information may have affected the assessment of credibility. Permission to pursue judicial review may therefore be granted on that ground, without predetermining whether the irregularity will justify substantive relief.

The appellant sought judicial review of proceedings arising from her daughter’s conviction at Carlisle Crown Court when aged 15. Her mother acted as litigation friend. The daughter had been represented by solicitor and counsel on an appeal concerning serious section 47 assault charges.

Most grounds alleged unfair treatment, excessive judicial questioning and bias. The renewed application principally concerned the judge’s questioning of two defence witnesses about previous convictions. The issue was whether that questioning constituted an arguable and potentially material irregularity warranting permission for a substantive judicial review hearing.

1. Permission granted in part. Permission was refused on the complaints concerning differential treatment of prosecution and defence witnesses, the judge’s questioning of witnesses, and alleged bias arising from the presence of the youth offending team. The Crown Court’s treatment could be explained by the manner in which the daughter’s case had been presented by her legal representatives. Judicial questioning was a normal part of the process, and the circumstances did not show that the judge had formed a view before hearing all the evidence.
2. The judge’s questions to two defence witnesses were designed to reveal whether they had previous convictions and what those convictions were. The questioning raised a material irregularity for three related reasons. First, evidence concerning the bad character of a non-defendant is governed by section 100 of the Criminal Justice Act 2003, and no obvious statutory basis permitting the questioning had been identified. Secondly, comparable prosecution witnesses had not been questioned in the same way. Thirdly, the trial judge and magistrates had preferred the prosecution witnesses in deciding whether the competing groups were telling the truth, so the knowledge of the convictions might have influenced that assessment.
3. The court emphasised that permission did not determine the merits. Interference with a Crown Court decision remains subject to a restricted approach, and the irregularity might not ultimately compel judicial review. The substantive application was reserved for a Divisional Court. The formal order was: application granted in part.

• Carlisle Crown Court: convicted the appellant’s daughter after proceedings concerning serious section 47 assault charges. The judgment does not give a citation for that decision.
• High Court (Administrative Court): on a renewed application for permission to pursue judicial review, permission was granted on the questioning-of-defence-witnesses ground and refused on the remaining grounds. The substantive application was reserved for a Divisional Court.