Dalton, R (On the Application Of) v The Crown Prosecution Service (CPS)

Judicial review proceedings must be conducted with procedural rigour. A claimant cannot use evolving grounds, without permission, to challenge replacement decisions or pursue grounds outside the permission granted. Although amendment may sometimes be allowed, a fresh claim will ordinarily be required where a replacement decision cures the original error and produces a materially different outcome.

Where the Data Protection Act 2018 provides the Information Commissioner with power to inspect unredacted material and determine whether redactions are necessary and proportionate, that statutory route is ordinarily the appropriate remedy. The Administrative Court should not determine the merits of such redactions without the documents and outside the statutory scheme.

The claimant sought judicial review of the CPS’s refusal to comply with a subject access request under section 45(1) of the Data Protection Act 2018. Permission had been granted only in relation to the CPS decision received on 12 March 2019.

The CPS later reconsidered the request, accepted that its original blanket approach was unlawful, supplied substantial disclosure with redactions, and issued further decisions on 8 November 2019 and 25 February 2020. The claimant sought to challenge those later decisions without applying to amend the claim or obtaining permission for new grounds.

The central issues were whether permission should be granted retrospectively, whether judicial review remained appropriate in light of the Information Commissioner’s statutory role, and whether the original decision should be quashed.

1. Disposition. Permission to proceed with judicial review of the decisions of 8 November 2019 and 25 February 2020 was refused. The original decision conveyed on 12 March 2019 was declared unlawful, so far as the original claim was concerned. The damages claim was directed to be transferred to the Central London County Court for pleading in a Part 7 claim form.
2. Public law litigation requires procedural rigour. Under CPR 54.15, a claimant who wishes to rely on additional grounds must obtain permission. Skeleton arguments cannot substitute for an amended statement of facts and grounds. Courts may refuse to entertain unpleaded grounds and may make adverse costs orders where procedural failures cause unfairness or prejudice the orderly management of litigation. The court adopted the observations in R (Talpada) v Secretary of State for the Home Department [2018] EWCA (Civ) 84.
3. Amendment to challenge a replacement decision is discretionary. It may be convenient where the new decision substantially concerns the same issue, but a fresh claim will normally be required where the new decision cures the original error and produces a materially different outcome. The narrow exceptions identified in the Administrative Court Guide, and discussed in R (Bhatti) v Bury Metropolitan Borough Council [2013] EWHC 3093 (Admin) and R (Hussain) v Secretary of State for Justice [2016] EWCA Civ 1111, did not apply.
4. The CPS’s later decisions were not blanket refusals. They involved document-by-document review by independent officers, disclosure of material within scope, and redactions under section 45(4)(e) to protect third-party rights. The Act does not create an exception for information already obtained by the requester where disclosure would identify other individuals.
5. The Information Commissioner was the appropriate first port of call for complaints about the necessity, proportionality or scope of redactions, and could inspect the unredacted material. The Administrative Court could potentially review rationality, but was not the appropriate forum to determine the merits of redactions in the absence of the unredacted documents. A complaint about missing data likewise belonged primarily before the Commissioner.
6. The explanation that information was withheld because other individuals could be identified was sufficient, on the facts, to satisfy the duty to give reasons. It went beyond a merely general reference to third-party rights.