Caine, R (On the Application Of) v Crown Court At Southampton

The High Court has jurisdiction to judicially review an interlocutory decision of the Crown Court acting in its appellate capacity, although such intervention will be rare and exceptional. Judicial review is concerned with legality, not the correctness of the decision. Permission should be refused unless there is a realistic prospect of showing an error of law, failure to consider relevant matters, reliance on irrelevant matters, or a decision outside the range of reasonable judicial responses. Under the Criminal Procedure (Attendance of Witnesses) Act 1965, an applicant must establish that the proposed witness is likely to give evidence likely to be material. A mere possibility, or speculation based on the witness’s independence, is insufficient.

The claimant had been convicted by Southampton Magistrates’ Court of an offence under section 5 of the Public Order Act 1986. In his appeal to the Crown Court, he sought a witness summons for an independent witness who had declined to provide a police statement. HH Judge Henry refused the summons and later refused to state a case. The claimant sought judicial review of both decisions, alleging that the Crown Court had relied on false information in a police memorandum.

Cockerill J refused permission on the papers. On renewal, the claimant accepted that the refusal to state a case could not be challenged by that route, but maintained that the underlying witness-summons decision was reviewable. The central issues were whether the High Court had jurisdiction to review that interlocutory appellate decision and whether the proposed challenge disclosed an arguable public law error.

1. The renewed application for permission was refused. The refusal to state a case could not be challenged because the underlying ruling was interlocutory and the High Court would have lacked jurisdiction to hear an appeal by case stated. The claimant accepted that point by reference to R (Gillan) v DPP [2007] EWHC 380 (Admin).

2. The High Court nevertheless had jurisdiction to review an interlocutory decision of the Crown Court made in its appellate capacity. Section 29(3) of the Senior Courts Act 1981 gave the High Court the same powers to make mandatory, prohibiting or quashing orders in relation to that jurisdiction as it possessed over an inferior court. The jurisdiction should be exercised sparingly and only in rare and exceptional circumstances.

3. The witness-summons application was governed by paragraph 2(1) of the Criminal Procedure (Attendance of Witnesses) Act 1965. The court had to be satisfied that the person was likely to be able to give evidence likely to be material to the criminal proceedings and that it was in the interests of justice to issue the summons. The test was compatible with Article 6 ECHR.

4. The Crown Court had applied the correct test. It was entitled to consider the witness’s reluctance, the available information about what she might say, and whether her evidence was likely to assist the defence or undermine the prosecution case. The police memorandum was admissible on the application as a contemporaneous record and the judge was entitled to treat it as reliable and give it such weight as he considered appropriate.

5. The claimant’s contention that a mere possibility of helpful evidence was sufficient was rejected. Section 2C of the 1965 Act concerned the later setting aside of a summons where the witness could not give material evidence; it did not reduce the initial requirement that material evidence be likely. The judge was entitled to conclude that the statutory test was not met. His decision was not unlawful, irrational or affected by failure to consider relevant matters.

6. Because the judicial-review claim disclosed no realistic prospect of success, permission was refused. The decision was final and could not be appealed under section 18(1)(a) of the Senior Courts Act 1981.

The judgment concerned a renewed application for permission to bring judicial review proceedings. Cockerill J had refused permission on the papers. The High Court, sitting in the Administrative Court, refused the renewed application.