Kearney v Hampshire Police

For the purposes of the Senior Courts Act 1981, “judgment” in the restriction on appeals from a criminal cause or matter includes any judicial determination concerning criminal proceedings. Judicial review may be a criminal cause or matter where its subject matter is criminal, even though judicial review is ordinarily civil in form. This includes a challenge to a prosecuting police force’s refusal to disclose material sought solely to support a possible appeal against conviction. The absence of an extant appeal, the identity of the decision-maker and the preliminary nature of the proceedings do not alter that character. The statutory restriction is not read down because the claim was refused on the papers and certified totally without merit. In the circumstances, the combined absence of an oral renewal hearing and a Court of Appeal appeal did not breach access-to-justice or Article 6 rights.

Following his murder conviction, the appellant sought original CCTV footage from the Chief Constable of Hampshire Police for use in seeking to reopen or pursue an appeal against conviction. The Criminal Cases Review Commission declined to refer the conviction, and the Chief Constable maintained that disclosure was not required and would be disproportionate.

The appellant brought judicial review proceedings. Andrews J refused permission on the papers and certified the application totally without merit, preventing an oral renewal hearing. The appellant sought to appeal to the Court of Appeal. The central questions were whether the Administrative Court decision was a judgment in a criminal cause or matter under section 18(1)(a) of the Senior Courts Act 1981, and whether the statutory scheme required a narrower construction to preserve access to justice.

1. Appeal dismissed for want of jurisdiction. The Administrative Court’s refusal of permission for judicial review was a judgment in a criminal cause or matter. Section 18(1)(a) of the Senior Courts Act 1981 therefore prevented an appeal to this court.
2. “Judgment” is interpreted broadly. In criminal proceedings it includes any order or decision by way of judicial determination of a question raised in or concerning proceedings whose subject matter is criminal, at whatever stage the question arises. The legislative history and Government of the United States of America v Montgomery and another [2001] UKHL 3 support treating judgment, order and decision as substantially interchangeable in this context.
3. The character of a criminal cause or matter depends on the underlying subject matter. Judicial review is not inherently civil. A claim concerning a prosecuting police force’s post-conviction disclosure obligations, brought solely to obtain evidence for a contemplated criminal appeal, is integral to the criminal justice process. It remains a criminal matter even though the claim is against an executive decision, involves different parties and precedes any actual appeal. R (Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37 was highly persuasive on the materially identical disclosure issue, although the jurisdiction point had not been determined there.
4. The statutory restriction was not read down by access-to-justice or Article 6 considerations. The appellant had received a criminal trial, potential criminal appeal routes, CCRC consideration and a reasoned judicial review decision. Article 6 does not require an oral hearing or appeal in every appellate or ancillary proceeding; fairness depends on the proceedings as a whole and the circumstances.
5. Certification as totally without merit is an objective decision. It requires careful consideration and satisfaction that the claim is bound to fail; where there is real doubt, an oral renewal should be allowed. CPR 52.8(5) could not confer jurisdiction to grant permission for judicial review where the court had no jurisdiction to entertain an appeal.
6. There was no Article 6 unfairness sufficient to invoke any residual jurisdiction. The appeal was dismissed.

1. Court of Appeal (Civil Division) [2019] EWCA Civ 1841: dismissed the appeal because it had no jurisdiction under section 18(1)(a) of the Senior Courts Act 1981.
2. Administrative Court: Andrews J refused permission to apply for judicial review on the papers and certified the application totally without merit, so no oral renewal hearing was available.