PD, R (On the Application Of) v Ministry of Justice

Judicial review is not a substitute for an appeal or a means of attacking regular proceedings in another court. Although the High Court has a residual jurisdiction to interfere with lower-court decisions, that jurisdiction is exercised only in rare and very limited circumstances. Where family proceedings have been determined after lengthy hearings and permission to appeal has been refused, residual judicial review will ordinarily be impermissible. The High Court cannot intervene in a criminal trial that is already at an advanced stage. Once possession proceedings have resulted in eviction, judicial review cannot restore the position, although a separate damages claim may potentially be available. A civil restraint order should not be imposed where it would duplicate an existing statutory restriction and the claimant has undertaken not to bring further claims absent exceptional circumstances.

PD brought several judicial review claims arising from family proceedings concerning contact with his child, related criminal proceedings, and possession proceedings concerning his former home. He challenged decisions and processes in the Family Court, the prosecution and continuing criminal trial, and the county-court possession proceedings.

The family proceedings had resulted in findings against him, an order preventing contact, and a five-year restriction under section 91(14) of the Children Act 1989. Permission to appeal had been refused as totally without merit. By the time of the hearing, the criminal trial was nearing its conclusion and eviction had taken place. The central issue was whether any of those matters could properly be addressed through judicial review.

1. Disposition. Permission to apply for judicial review was refused in each of the three current claims, and each claim was finally dismissed. Any earlier claim issued by PD and not already dismissed was also finally dismissed and was not to be reopened or renewed.
2. The High Court possesses a residual jurisdiction to interfere with, and in an appropriate case quash, a decision of a lower court. The jurisdiction is exercised extremely rarely. Judicial review cannot ordinarily be used to attack regular legal proceedings where the ordinary appellate process is available.
3. In relation to the family proceedings, the claimant had received lengthy first-instance hearings and had exercised his right to seek permission to appeal. The refusal of permission by HHJ Hughes left no room for residual judicial review of the decisions of District Judge Burgher or HHJ Hughes. The possible existence of a restricted second appeal did not justify judicial review.
4. The criminal claim could not succeed. The prosecution had commenced and the trial was almost concluded. The court declined to express a view on what might theoretically have been possible before trial, but held that intervention at that late stage was fanciful. Any legal error affecting a conviction would fall within the criminal appellate process.
5. The possession claim could not succeed because eviction had already occurred. Judicial review could not undo the completed process. If unlawfulness were established, a damages claim against the landlords might be pursued in the county court.
6. A civil restraint order was refused. It would duplicate the existing restriction under section 91(14) of the Children Act 1989, creating two permission requirements where one was sufficient. The claimant's clear undertaking that this would be his last judicial review, absent exceptional circumstances, was also accepted.
7. A transcript was directed to be prepared at public expense and retained on the court file. Any future judicial review claim by PD was to be placed before a judge with a copy of the judgment.

The judgment describes earlier family-court proceedings and a refusal of permission to appeal, but the present decision was a first-instance determination of judicial review claims.

• Family Court at Milton Keynes: District Judge Burgher made findings and welfare orders, including an order under section 91(14) of the Children Act 1989.
• Family Court at Milton Keynes: HHJ Hughes refused permission to appeal on 26 June 2018 under rule 30.3(5A), describing the proposed appeal as totally without merit.
• High Court (Administrative Court): Permission to apply for judicial review was refused and the claims were finally dismissed.