HI, R (on the application of) v Willesden Magistrates Court & Anor (Rev 1)

A claim for judicial review of a criminal court decision recorded as totally without merit cannot be reconsidered at an oral hearing where CPR 54.12(7) applies. The absence of a Court of Appeal appeal route follows from Senior Courts Act 1981, rather than from the procedural rule. A claim is totally without merit where it is bound to fail. Although the initial reasons may have been inadequate, the court may give fuller reasons when reconsidering the matter. A trial court is entitled to refuse speculative disclosure and an adjournment where the relevant ground was not relied on at the time and the material could not assist the defence.

The claimant sought judicial review of her conviction by Willesden Magistrates’ Court for driving with excess alcohol. She alleged procedural unfairness and irrationality because custody-suite CCTV identified in the unused-material schedule had not been disclosed before trial.

Permission was refused on the papers and the claim was recorded as totally without merit. The claimant applied for an oral hearing to reconsider that decision, arguing that the court had jurisdiction to do so and that the claim was not bound to fail. The issues were whether an oral reconsideration was permissible and whether the claim was totally without merit.

1. Jurisdiction. The application for an oral reconsideration was refused. CPR 54.12(7) uses unequivocal and unqualified language and does not impliedly exclude criminal cases. CPR 1.2 did not justify reading the rule down. The lack of an equivalent Court of Appeal appeal route resulted from section 18(1)(a) of the Senior Courts Act 1981, which prevents an appeal to the Court of Appeal in a criminal cause or matter.
2. In R (Grace) v Secretary of State for the Home Department [2014] 1 WLR 3432, the Court of Appeal had explained that totally without merit means bound to fail. The safeguards identified in that case did not make it arguable that CPR 54.12(7) permitted an oral hearing here. The claimant’s Article 6 argument was unsupported.
3. Merits. The original reason given for recording the claim as totally without merit was inadequate because it relied only on the existence of an alternative Crown Court appeal. The reasons should have addressed the substance of the judicial review claim, consistently with R v Hereford Magistrates’ Court ex parte Rowlands [1998] QB 110.
4. Nevertheless, the claim was bound to fail. The defence had not relied at trial on the CCTV entry in the unused-material schedule when seeking an adjournment. The later disclosure application was speculative because there was no reason to expect that the footage would undermine the prosecution case or assist the defence. Proceeding without it caused no injustice, and the outcome would not have been substantially different. If the district judge had halted the trial merely because the CCTV was unavailable, that decision would have been unlawful: DPP v Petrie [2015] EWHC 48 (Admin).
5. The application was dismissed.

not stated in the judgment.