Smith, R (on the application of) v Wakefield Magistrates' Court

Where a conviction was lawful when entered but later developments show that the underlying law was defective, the conviction should be reopened only where allowing it to stand would cause substantial injustice. The Administrative Court applies that principle by analogy with the Criminal Division’s approach to extensions of time for criminal appeals. Permission for judicial review should be refused where the proposed challenge has no realistic prospect of satisfying that test. Relevant considerations include the age of the conviction, whether the defendant admits the conduct, whether the offence is merely regulatory, and the seriousness of the conduct.

The claimant pleaded guilty before Wakefield Magistrates’ Court to offences under sections 9 and 10 of the Video Recordings Act 1984. He was committed to Leeds Crown Court for sentence and received concurrent suspended terms of imprisonment. It later emerged that the statutory provisions had not been notified to the European Commission as required by the Technical Standards Directive, with the result that the offences were unenforceable during the relevant period.

The claimant sought permission for judicial review of the convictions, committal and sentence. The issue was whether the claim had a realistic prospect of establishing the substantial injustice required to reopen a conviction that had been proper when imposed.

1. Permission refused. The claimant’s proposed judicial review had no realistic prospect of success and was therefore refused.
2. The only potentially available remedy was judicial review. A guilty plea prevented an appeal from the Magistrates’ Court, and the Crown Court proceedings did not involve a trial on indictment permitting an appeal to the Criminal Division.
3. The court applied by analogy the approach developed by the Criminal Division in R v R & Others [2007] 1 Cr App R 10, R v Hawkins [1997] 1 Cr App R 234, and R v Cottrell; R v Fletcher [2008] 1 Cr App R 7. A conviction that was proper when entered should be reopened only where substantial injustice would result from allowing it to stand. The same approach applied whether the original conviction followed trial on indictment or proceedings before a magistrates’ court.
4. The permission stage required the court to ask whether success was realistic or merely fanciful, adopting the analogy with summary judgment. The court was not required to conduct a full merits hearing.
5. There was no realistic prospect of substantial injustice being established. The convictions were old, the claimant did not dispute the acts constituting the offences, and the offences were not merely regulatory. The nature of the videos made the conduct reprehensible. Those circumstances meant that the Criminal Division would not have extended time to permit an appeal, and judicial review should correspondingly be refused.

The judgment records an application for permission to apply for judicial review, directed to an oral hearing by His Honour Judge Kaye QC. No prior merits decision or appeal is stated.