Zholia Alemi, R (on the application of) v Crown Court at Carlisle

The High Court has no judicial review jurisdiction over decisions and procedural matters relating to a trial on indictment where the statutory exclusion in section 29(3) of the Senior Courts Act 1981 applies. This includes decisions about how a defendant is permitted to give evidence and arrangements intended to secure a fair trial. The universality of procedural fairness and fair-trial rights does not alter the character of such matters. The statutory allocation of responsibility to the Court of Appeal Criminal Division is principled and does not leave an arguable residual common-law jurisdiction or create a concurrent choice between judicial review and criminal appeal.

The claimant sought permission to bring judicial review proceedings challenging her convictions by a jury and the sentence imposed by the Crown Court at Carlisle on 18 October 2018. She also sought an extension of time. Permission had been refused on the papers by Heather Williams J. The claimant relied principally on alleged failures concerning arrangements for giving evidence in private or by special measures, referring to fairness, article 6 of the European Convention on Human Rights and disability-related rights.

The claimant had previously sought permission to appeal against conviction and sentence in the Court of Appeal Criminal Division. The renewed applications were refused in [2021] EWCA Crim 507. The central issue was whether the proposed judicial review grounds were matters relating to trial on indictment and therefore within section 29(3) of the Senior Courts Act 1981.

1. Permission refused. The renewed applications for permission to bring judicial review proceedings concerning the convictions and sentence were refused. No order was made as to costs, and the application for an extension of time did not arise.
2. Section 29(3) of the Senior Courts Act 1981 excludes the High Court’s jurisdiction in matters relating to trial on indictment. The exclusion covers questions about arrangements made, or which should have been made, for a defendant’s participation in the Crown Court trial, including the manner in which the defendant might give evidence.
3. The timing of consideration of evidence arrangements does not remove the matter from the scope of the exclusion. Nor does the general application of procedural fairness and fair-trial rights alter the fact that the challenged decisions directly concerned the conduct and fairness of a trial on indictment.
4. The relevant jurisdiction belonged to the Court of Appeal Criminal Division, and had been invoked. The statutory scheme provides a convicted defendant with applications for permission to appeal on the papers and, where necessary, renewal before the full court. The High Court does not supervise the Court of Appeal Criminal Division.
5. The High Court’s jurisdiction is not concurrent with that appellate route. The position is more emphatic than an ordinary case involving an alternative remedy because section 29(3) imposes a statutory exclusion for principled reasons. No arguable residual common-law jurisdiction could successfully be invoked.

• Court of Appeal Criminal Division: Renewed applications for permission to appeal against conviction and sentence, together with an extension-of-time application, were considered and permission to appeal was refused in [2021] EWCA Crim 507.
• High Court (Administrative Court): Permission for judicial review was refused on the papers by Heather Williams J. Mr Justice Fordham refused the renewed applications at the oral hearing.