Exolum Pipeline System Ltd, R (on the application of) v Crown Court at Great Grimsby

The Administrative Court’s supervisory jurisdiction over the Crown Court is limited by the statutory purposes of the exclusion in the Senior Courts Act 1981. A Crown Court decision relating to trial on indictment may nevertheless be reviewed for material public law error where judicial review would neither delay the trial by interlocutory challenge nor impugn a conviction or sentence after trial.

There is no additional, undefined threshold of gravity beyond an error going to jurisdiction in this sense. The court may review errors including misdirection in law, failure to make a required finding, inadequate enquiry, reliance on irrelevant considerations and legally inadequate reasoning. However, an evaluative decision on causation is not amenable to substitutionary review merely because another view is possible.

Exolum was prosecuted by the Health and Safety Executive in the Crown Court at Great Grimsby. During the trial, an issue concerning the Official Secrets Act 1989 caused significant delay. The jury was discharged when the trial could not be completed within the available trial slot.

The Crown Court ordered Exolum to pay the HSE’s costs under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986. Exolum sought judicial review, alleging that the judge had erred in finding that the HSE’s costs had been incurred as a result of Exolum’s failure to raise the issue earlier. The central questions were whether the Administrative Court had jurisdiction and, if so, whether the Crown Court’s approach to causation involved a material public law error.

1. Jurisdiction. The claim concerned a Crown Court costs order relating to trial on indictment. The relevant statutory purposes were to protect an ongoing trial from interlocutory interference and to reserve challenges to conviction and sentence to the deliberately prescribed appellate mechanisms.
2. The correct approach was the Intermediate Basis. A Crown Court decision relating to trial on indictment is susceptible to judicial review for material public law error, provided that the challenge does not undermine those two purposes. The narrower approach, limiting review to errors concerning statutory preconditions, was rejected as liable to produce artificial distinctions and uncertainty. The expansive approach, permitting review notwithstanding the statutory purposes, was also rejected.
3. References in the authorities to “gravity”, “severity” and “jurisdiction” did not impose an additional threshold. They described an error going beyond a merits disagreement about an evaluative judgment. Conventional public law errors could therefore attract review where the statutory exclusion did not apply.
4. The Regulation 3 causation issue required the Crown Court judge to decide whether the HSE’s costs had been incurred as a result of the improper omission found. That was an evaluative judgment involving latitude, rather than a hard-edged question suitable for substitutionary review.
5. The judge had identified the statutory question, addressed it and answered it. The later three-week trial estimate, made after the issue had emerged, provided a rational basis for concluding that a properly prepared trial would have required a longer slot. The judge was also entitled to reject the suggested counterfactual based on the Day 4 timetable discussion.
6. The reasons were legally adequate. Reasons are assessed practically and are addressed to an informed audience. They must engage with the principal controversial issues, but need not deal expressly with every point later advanced. No material public law error was established.
7. The claim was dismissed. Exolum was ordered to pay the HSE’s agreed assessed costs, subject to the agreed deduction.