Menjou v Secretary of State for Justice

A claim under CPR Part 8 cannot be used to pursue a claim which is, in substance, judicial review of an enactment or an alleged failure to perform a public function, particularly where mandatory relief is sought. Such a claim should proceed under CPR Part 54. A claim may be struck out or summarily dismissed where, on the assumed facts, the legal position is clear and the claim has no realistic prospect of success. Directive 2012/29/EU concerns procedural rights of victims and does not create the crime of aggression or confer a right to bring a private prosecution for conduct not recognised as a domestic criminal offence. The Directive leaves conditions governing victim participation, legal aid and expense reimbursement to national law.

The claimant brought a CPR Part 8 claim against the Secretary of State. He sought declarations concerning the transposition of Directive 2012/29/EU, the compatibility of section 18(1) of the Senior Courts Act 1981 and LASPO with the Directive and the Convention, and the compatibility of R v Jones & Ors and Ayliffe & Ors v Director of Public Prosecutions [2006] 2 All ER 741 with the Directive and the Convention.

The claim arose from the claimant’s attempt to commence a private prosecution alleging the international crime of aggression. He had been refused permission to challenge the magistrates’ decision by judicial review and later sought to re-argue related issues. The defendant applied for an extension of time, strike-out and summary judgment. The central questions were whether the defendant could be heard, whether the claims had any realistic prospect of success, and whether the proceedings were an abuse of process.

1. Procedural applications. CPR Part 8.4 did not prevent a defendant who had failed to file an acknowledgment of service from making applications under CPR Parts 3 or 24. In any event, relief from sanction and a short extension were granted because the delay was limited and caused no material prejudice.
2. Prospects of success. Although the claim form failed to particularise its legal basis contrary to CPR Part 8.2(b)(ii), the court considered whether amendment could reveal a viable claim. It could not. The claimant’s case depended on establishing that he was a victim within Article 2(1)(a) of Directive 2012/29/EU. The crime of aggression was not recognised as a domestic criminal offence, and the binding decision in Jones established that position.
3. The Directive concerned procedural rights and was silent on the substantive criminal law of Member States. It did not create the crime of aggression. Articles 10, 13 and 14 left the relevant procedural rules, legal-aid conditions and expense reimbursement to national law. The Directive therefore could not support the claimant’s proposed declarations.
4. Section 18(1) of the Senior Courts Act 1981 did not arguably violate the Directive, Article 6 of the ECHR, Article 47 of the Charter or Article 13 of the ECHR. The claimant had been heard through the judicial-review process, including an oral renewal hearing. Article 6(3)(c) of the ECHR concerned legal assistance for persons charged with criminal offences and did not establish an equivalent right for private prosecutors.
5. Abuse of process. The claim was, in substance, a claim for judicial review of enactments and an alleged failure to perform a public function. CPR Part 8 was therefore impermissible, and mandatory relief would have required CPR Part 54. The claim also sought to re-litigate issues already raised or capable of being raised in earlier proceedings. Applying the broad, merits-based approach in Johnson v Gore Wood [2002] 2 AC 2 (HL), that was an abuse of process.
6. The defendant’s applications were allowed. Time for service of the acknowledgment of service was extended to 14 January 2021, and the claim was summarily dismissed under CPR Parts 3.4 and 24.2.