Thakrar v Crown Prosecution Service

A judicial review challenge to a decision to discontinue ongoing criminal proceedings concerns a criminal cause or matter. Its public-law form and the fact that the decision was made by the CPS do not alter its underlying subject matter. Under section 18(1) of the Senior Courts Act 1981, no appeal lies to the Court of Appeal from the High Court judgment. Rule 52.8(5) of the Civil Procedure Rules 1998 cannot bypass that jurisdictional bar. Permission to apply for judicial review may be granted instead of permission to appeal only where the Court of Appeal has jurisdiction to entertain the appeal application.

The applicant had commenced a private prosecution. The CPS later took over its conduct under the Prosecution of Offences Act 1985 and decided that the proceedings should not continue. The applicant challenged that decision by judicial review.

Butcher J refused permission on the papers. Cheema-Grubb J refused the renewed application on 7 June 2018. The applicant sought permission to appeal, raising the question whether the Court of Appeal had jurisdiction under section 18(1) of the Senior Courts Act 1981, and whether rule 52.8(5) permitted the court instead to grant permission to apply for judicial review.

Disposition and jurisdiction

1. Davis LJ, with whom Irwin LJ agreed, refused the application for permission to appeal because the Court of Appeal had no jurisdiction to entertain it.

2. Section 18(1) of the Senior Courts Act 1981 bars an appeal from a High Court judgment in a criminal cause or matter. The relevant classification depends on the underlying subject matter, not merely on the form of the proceedings or the fact that an executive decision is challenged by judicial review. Section 151(1) reinforces this approach by defining “cause” and “matter” broadly.

3. The subject matter here was the continuance or discontinuance of ongoing criminal proceedings in the Crown Court. A challenge to a decision not to prosecute, or to discontinue an existing prosecution, therefore falls within a criminal cause or matter. The approach was consistent with ex parte Woodhall (1888) 20 QBD 832 and was confirmed by the Supreme Court’s reasoning in Belhaj [2018] UKSC 33. That reasoning was not obiter: it was a necessary and fundamental part of the Supreme Court’s conclusion in the context of section 6 of the Justice and Security Act 2013.

4. Rule 52.8(5) of the Civil Procedure Rules 1998 operates only on an application under rule 52.8(1) or (2). It presupposes an appeal application which the Court of Appeal has jurisdiction to entertain. Since section 18(1) removed that jurisdiction, the court also lacked jurisdiction to grant permission to apply for judicial review instead.

5. As an ancillary matter, there is no statutory or rule requirement that such a permission hearing be before a Divisional Court. A single judge had jurisdiction to hear the renewed application. The court nevertheless gave wider, non-dispositive guidance: a Divisional Court should normally be considered for important or complex renewed applications, substantive hearings should ordinarily be before a Divisional Court where permission is granted, and a judge should be particularly cautious before certifying a paper application as totally without merit where appeal rights are restricted.

• Court of Appeal (Civil Division): The application for permission to appeal was refused because the court had no jurisdiction to entertain it.
• Queen’s Bench Division (Administrative Court): Cheema-Grubb J refused the renewed application for permission to apply for judicial review on 7 June 2018.
• Queen’s Bench Division (Administrative Court): Butcher J refused permission to apply for judicial review on the papers on 30 April 2018.