Tesco Stores Ltd, R (On the Application Of) v Birmingham Magistrates' Court

The High Court may judicially review an interlocutory decision in criminal proceedings, but will do so rarely, particularly once a trial has begun. The relevant question is whether intervention would further the overriding objective of dealing with cases justly, taking account of fairness, efficiency, cost and delay. The recognised circumstances for intervention are helpful indicators, not rigid categories. They include a seriously compromised defence, an important point of principle likely to affect other cases, or another exceptional feature. An alternative appeal or case-stated remedy does not preclude judicial review where it is materially inferior and would cause wasted proceedings, delay or unnecessary cost. A substantial and publicly important question of statutory or regulatory construction will ordinarily be arguable for permission purposes.

Tesco faced ten prosecutions under regulation 19 of the Food Safety and Hygiene (England) Regulations 2013 concerning food displayed after its use-by date. The magistrates’ court held as a preliminary issue that article 24 of the EU Food Information for Consumers Regulation created an absolute presumption that such food was unsafe. Tesco sought judicial review, arguing that article 24 created only a rebuttable presumption and that expert evidence was relevant.

Pepperall J refused permission on the papers, considering that an interlocutory challenge in criminal proceedings should generally await the outcome of the prosecution and any appeal. Tesco renewed the application. The issues were whether judicial review should proceed before trial and whether the substantive construction challenge was arguable.

1. Permission granted. The court granted permission to proceed with the judicial review. It did not determine the substantive construction of article 24.
2. The court had jurisdiction to review an interlocutory decision of a magistrates’ court or Crown Court. Such jurisdiction would be exercised rarely where a trial was continuing, particularly where intervention would disrupt evidential or trial-management decisions. The present case was materially different: there was no extant trial, the issues were legal questions identified as suitable preliminary issues, and they had potential importance beyond the individual prosecution.
3. The factors identified in R (Parashar) v Sunderland Magistrates’ Court [2019] EWHC 514 (Admin) were helpful but did not constitute a rigid test. The court had to consider all relevant circumstances and ask whether intervention would further the overriding objective of dealing with cases justly, including efficient and cost-efficient case management.
4. Potential alternative remedies, including an appeal to the Crown Court or a case stated, did not make judicial review inappropriate. Those remedies were materially inferior here because Tesco might have to undertake a seven-day trial on due diligence before challenging the legal ruling, with a substantial risk of wasted time, delay and additional cost. A successful due diligence defence would also leave unresolved the legal question and create an unsatisfactory finding concerning the safety of the food.
5. The merits threshold for permission was modest. Tesco’s argument that the change from regulation 44 of the Food Labelling Regulations 1996 to the present deeming provision might have substantive effect, and that an irrebuttable rule criminalising the display of food that was factually safe required clear wording, was at least arguable. The issue also raised significant public-interest and food-industry implications.

• Administrative Court: Pepperall J refused permission on the papers on 25 June 2019. The Divisional Court renewed the application and granted permission to proceed.