Hesamedin Navabi, R (on the application of) v Crown Court at Durham

At the permission stage of judicial review, arguability is a threshold requirement. Where the evidence, including the contemporaneous transcript, makes the proposed challenge incapable of realistic success, permission must be refused even if other grounds might otherwise require consideration.

A challenge must also be brought promptly. Delay after the claimant learns that judicial review is available, followed by a further period spent considering whether to proceed, may justify refusing an extension of time. The same discretionary approach applies to late renewal of a paper refusal of permission.

The claimant challenged a Crown Court order made after an alleged breach of a suspended sentence order. The order continued the suspended sentence, imposed a seven-day residence requirement and ordered payment of prosecution costs.

Permission for judicial review had previously been refused on grounds of delay and lack of arguability. A later application to renew permission out of time was also refused. The claimant sought to set aside that decision, obtain permission for judicial review and secure extensions of time. The central issues were whether the proposed claim was arguable and whether the various delays should be excused.

1. Applications dismissed or refused. The application to set aside the order refusing an extension of time was refused. Permission for judicial review was dismissed, a further extension of time was refused, and there was no order as to costs.
2. Arguability. Arguability is an important threshold requirement at the permission stage. The transcript showed that the claimant had positively acknowledged the breach as put to him, and that this was understood by the judge, clerk and counsel. He had legal representation and opportunities to raise his proposed objections. The transcript did not record those objections, nor did the claimant contemporaneously say that he disputed the breach.
3. In those circumstances there was no realistic prospect of success in challenging the breach proceedings or order on the proposed public-law grounds, including abuse of power, abuse of process, statutory incompatibility, procedural unfairness, Article 6 ECHR, unreasonableness or unfairness. The absence of arguability was independently fatal, even if the other points were assumed in the claimant’s favour.
4. Delay. The challenged decision was the Crown Court order of 11 February 2021, rather than the later Court of Appeal Criminal Division correspondence. Even allowing the claimant until receipt of that correspondence on 15 May 2021, he waited more than two further months before seeking judicial review. The need to consider whether judicial review was available did not provide a good reason for that delay. Permission was therefore also refused for lack of promptness.
5. The refusal to extend time for renewal of the paper permission decision was likewise unimpeachable. The court had served the order at the address supplied by the claimant, and the explanation for the delay was not accepted. The compelling lack of viability of the proposed claim reinforced that conclusion.
6. The request for a certificate of a point of law of general public importance was refused because the case turned on its particular facts and circumstances.

• High Court (Administrative Court): permission for judicial review was refused by Julian Knowles J on 10 December 2021 for delay and lack of arguability.
• High Court (Administrative Court): HHJ Kramer refused an extension of time for renewal on 9 August 2022.
• High Court (Administrative Court): the present application to set aside HHJ Kramer’s order was refused, permission was dismissed and a further extension of time was refused.