Ewing v Director of Public Prosecutions & Anor (Rev 2)

A person subject to a civil proceedings order must obtain leave under section 42(3) of the Senior Courts Act 1981 before applying for permission to bring judicial review proceedings. This remains so where the proposed judicial review concerns a criminal cause or matter. The classification depends on the nature of the proceedings themselves, including their parties, procedure, powers and possible outcomes. Judicial review proceedings and the application for permission are civil proceedings for section 42 purposes, even though their subject matter is criminal.

The appellant was subject to a civil proceedings order. He had commenced a private prosecution, which the Director of Public Prosecutions later took over and discontinued. He sought a declaration that he could apply under CPR Part 54.4 for judicial review without first obtaining leave under section 42(3) of the Senior Courts Act 1981.

The Divisional Court held that the proposed judicial review concerned a criminal cause or matter, but that the application for permission was civil and required section 42(3) leave. The appellant appealed and also renewed an application concerning the recusal of the judge below. The central issue was whether judicial review proceedings in a criminal cause or matter are civil proceedings for section 42 purposes.

The appeal was dismissed unanimously. Permission to appeal on the recusal issue was refused. Lady Justice Smith gave the judgment, with Lord Justice Elias and Lord Justice Sedley agreeing.

1. Jurisdiction. The proceedings seeking a declaration that section 42(3) leave was unnecessary were collateral to the proposed judicial review. They were not proceedings in a criminal cause or matter. Accordingly, section 18(1)(a) of the Senior Courts Act 1981 and section 1(1) of the Administration of Justice Act 1960 did not exclude an appeal to the Court of Appeal.
2. Wider argument. Ex parte Waldron [1986] 1 QB 824 concerned the different statutory context of section 139 of the Mental Health Act 1983. Its interpretation of “civil proceedings” did not establish that judicial review is never civil proceedings. The binding ratio of Ex parte Ewing (No 2) [1994] 1 WLR 1553 established that, for section 42 purposes, “civil proceedings” includes judicial review.
3. Nature of the proceedings. Whether proceedings are civil or criminal depends on their nature: what happens, the procedure followed, the powers invoked, the parties and the possible results. The proposed proceedings would be between the appellant and the DPP; the defendant in the underlying prosecution would not be a party; the Civil Procedure Rules would apply; there would be no charge, conviction or acquittal; and the remedy would be an order quashing an unlawful decision. They were therefore civil proceedings. The application for permission was civil as well, so section 42(3) leave was required.
4. Recusal. Applying the test in Porter v Magill [2002] 2 AC 357, a fair-minded and informed observer would not consider that a professional association more than 20 years earlier created a real possibility of bias.

• Court of Appeal (Civil Division) Dismissed the appeal and refused permission to appeal on the recusal issue.
• Divisional Court of the Administrative Court Held that the proposed judicial review was in a criminal cause or matter, but that the application for permission was a civil proceeding requiring leave under section 42(3) of the Senior Courts Act 1981.
• High Court, Mitting J Allowed the appellant’s case-stated appeal concerning the validity of the informations and remitted the matter for hearing.
• Hastings Magistrates Court Had held that the private prosecution was an abuse of process.