Malik & Ors v Manchester And Salford Magistrates' Court & Ors

For purposes of the appellate restriction in the Senior Courts Act 1981, the character of a cause or matter is determined by the underlying proceedings. It is not lost because a later stage uses civil procedural techniques, concerns a final order, or involves relief also available in civil proceedings. Subsequent proceedings relating to an order made in criminal judicial review proceedings remain criminal where they are in the same cause or matter and materially linked to the original order. A genuinely wholly collateral application may fall outside the restriction where it neither exercises criminal jurisdiction nor affects the criminal proceedings. An application varying the time for a statutory application, made within the same judicial review proceedings and enabling that application to proceed, was not collateral.

The applicants brought judicial review proceedings concerning search warrants issued under section 8 of the Police and Criminal Evidence Act 1984. The proceedings were accepted to constitute a criminal cause or matter. The Administrative Court quashed the warrants and ordered the return of seized property, subject to an application under section 59 of the Criminal Justice and Police Act 2001.

The third respondent applied out of time under section 59. The Divisional Court later varied the earlier order by extending the relevant period from 56 to 58 days, making the application valid. The applicants sought to appeal that order. The central issue was whether section 18(1)(a) of the Senior Courts Act 1981 deprived the Court of Appeal of jurisdiction.

Application refused. Davis LJ gave the judgment, with Sharp LJ agreeing.

1. Statutory bar. Section 18(1)(a) of the Senior Courts Act 1981 prevents an appeal to the Court of Appeal from a High Court judgment in a criminal cause or matter, subject to the statutory exception. The underlying judicial review proceedings were accepted to have that character.
2. Continuing character. The nature of the cause or matter is not altered because a later step uses civil procedural techniques, relates to a final order, or concerns relief available in civil proceedings. The court applied the reasoning in Carr v Atkins [1987] 1 QB 963 and Tan v Cameron [1992] 2 AC 205.
3. Same cause or matter. The application to vary the time limit was made within the same judicial review proceedings. It specifically referred to, and varied, the earlier order. It also enabled the section 59 application to proceed. It was therefore inextricably linked to the original criminal cause or matter and was not a free-standing application. R (Panesar) v Central Criminal Court [2015] 1 WLR 2577 confirmed that section 59 proceedings remained criminal even where the underlying warrants had been quashed.
4. Collateral proceedings. The court recognised that a later application may fall outside the restriction where it is wholly collateral, neither exercises criminal jurisdiction nor bears on the criminal proceedings. Government of the USA v Montgomery [2001] 1 WLR 196 and R (Guardian News and Media) Limited v Westminster Magistrates Court [2011] 1 WLR 3253 did not assist the applicants because the present application directly affected the earlier order and the section 59 proceedings.
5. The Court of Appeal therefore had no jurisdiction to entertain the proposed appeal. If a point of law were certified and permission granted, any appeal would lie to the Supreme Court. The merits of the proposed appeal were not considered.

1. Court of Appeal (Civil Division): On the preliminary issue, held that it had no jurisdiction under section 18(1)(a) of the Senior Courts Act 1981 to entertain the proposed appeal and refused the application.
2. Divisional Court of the Administrative Court: On 18 July 2017, varied the earlier order by substituting 58 days for 56 days, thereby validating the section 59 application. Permission to appeal was refused.