KHAZIR REHMAN (R on the application of) v GREATER MANCHESTER MAGISTRATES’ COURT

Judicial review is not a merits appeal or a rehearing of factual and evidential issues arising from a magistrates’ court conviction. Where an appeal to the Crown Court by way of rehearing remains available, it is ordinarily the proper remedy for complaints about evidence, factual findings, particulars and the basis of conviction. A case stated appeal and judicial review are concerned with arguable questions of law or jurisdiction and public law error. In harassment cases involving publication, the truth of the published material is not necessarily a precondition to conviction or an independent defence. The statutory scheme instead requires attention to the factual elements of the offence and any applicable statutory defence, including section 1(3)(c) of the Protection from Harassment Act 1997.

The claimant sought renewal of permission to bring judicial review proceedings concerning his conviction for harassment, sentence, restraining order and costs imposed by the magistrates’ court. He also challenged the refusal to state a case for an appeal to the High Court. Permission had been refused on the papers, principally because of delay, the availability of an appeal to the Crown Court and the absence of an arguable public law error.

The claimant contended that the magistrates’ court had erred in law by failing to determine whether social-media posts were true, had relied on inadequate particulars, and may have considered emails that were not part of the prosecution case. The central issues were whether there was an arguable question of law or jurisdiction and whether the available Crown Court rehearing was an adequate alternative remedy.

1. Renewed application refused. The court proceeded after the claimant’s late attendance, allowed him to make oral representations, and concluded that there was no viable or properly arguable ground for judicial review. There was no order as to costs.
2. The claimant had an available right of appeal against conviction and sentence to the Crown Court by way of rehearing under Part 34 of the Criminal Procedure Rules and section 108 of the Magistrates Courts Act. That procedure permitted reconsideration of the evidence, including oral evidence, and was the proper route for merits-based complaints.
3. The alleged failure to investigate the truthfulness of the posts did not disclose an arguable error of law. The magistrates’ court had determined the case on the evidence presented, and the claimant had adduced no evidence enabling a truthfulness enquiry. Truthfulness was not shown to be a legal precondition to conviction for harassment or an independent defence. The relevant questions arose from the statutory scheme, including the section 1(3)(c) reasonable-course-of-conduct defence under the Protection from Harassment Act 1997.
4. Complaints concerning particulars, evidence and references to emails were factual, evidential or procedural matters suitable for consideration on a Crown Court rehearing. Judicial review could not be used to re-evaluate the merits. The references to emails did not, without more, establish procedural impropriety, irrationality or unfairness.
5. The court noted factors which a Crown Court might consider if the claimant applied out of time for a rehearing, including delay caused by the magistrates’ court, his pursuit of the wrong avenue, the recent emergence of the email issue, the absence of a note of reasons for conviction and the CPS’s position that an appeal remained available. Those observations did not determine whether an extension of time should be granted.

• High Court (Administrative Court): Permission for judicial review was refused on the papers by HHJ Stephen Davies on 8 March 2022. On renewal, Mr Justice Fordham refused permission on 7 April 2022.