Taylor, R (on the application of) v Wigan and Leigh Magistrates Court

A renewed application for permission to seek judicial review becomes academic where the claimant has pleaded guilty and been convicted. The court will not entertain an entirely academic claim, and a conviction following an unequivocal guilty plea cannot ordinarily be quashed by mandatory order in those circumstances. The scheduling of cannabis and the criminalisation of its production under the Misuse of Drugs Act 1971 are matters for Ministers and Parliament. A magistrates’ court cannot declare primary or subordinate legislation incompatible with human rights, and a policy challenge of this kind does not provide an arguable basis for judicial review.

The claimant sought permission to bring judicial review proceedings concerning his prosecution for producing cannabis, contrary to the Misuse of Drugs Act 1971. He alleged that the Government had misconstrued the Act by treating cannabis as a controlled drug and argued that its criminalisation was unjustified because tobacco and alcohol were not similarly sanctioned.

Permission had previously been refused by HHJ Waksman QC. The claimant renewed the application after the magistrates’ court declined to adjourn his criminal proceedings. He then pleaded guilty and received a community order. The central issues were whether the proposed judicial review remained justiciable and whether the arguments disclosed an arguable legal challenge.

1. Application refused. The claim had become entirely academic because the claimant had pleaded guilty, been convicted and sentenced. The court would not entertain an entirely academic claim. In any event, following an unequivocal guilty plea, a mandatory order quashing the conviction could not be made.
2. The claimant’s arguments concerned the alleged failure of Ministers and Parliament to adopt a different policy towards cannabis. Whether cannabis should be included in the statutory scheme and whether its production should be criminalised were matters for Ministers and Parliament, not the courts.
3. The reasoning in R (Stratton) v Waltham Forest Magistrates’ Court [2009] EWHC 2457 (Admin), in which Wilkie J’s judgment was agreed by Leveson LJ, applied. A magistrates’ court had no jurisdiction to declare the legislation incompatible with human rights, and the policy-based arguments did not disclose incompatibility, irrationality, illegality or a breach of human rights. A proposed challenge to a stay of the criminal proceedings was, in substance, no different from a challenge to the decision to prosecute.
4. The court warned that repeated unsuccessful proceedings advanced to promote the same policy argument might result in the assisting advocate being ordered to pay the costs incurred by other parties under the court’s wide statutory costs jurisdiction.

Permission to apply for judicial review was initially refused by HHJ Waksman QC on 23 February 2012. The renewed application was refused by the Administrative Court.