Malcolm Huntley Potier, R (on the application of) v Southwark Crown Court

A Crown Court’s power to vary or revoke a case-management direction is not confined by the grounds on which a party may apply for variation. Under rule 5A of the Crown Court Rules 1982, the court may revisit a direction where it reasonably considers that there is a good reason to do so, including a misapprehension of the applicable procedural power. The court must then exercise its judgment lawfully and reasonably. In a hearsay-based appeal, the absence of cross-examination does not prevent the affected party challenging the evidence through submissions and supporting material. “Hearsay” bears the statutory meaning in section 1 of the Civil Evidence Act 1995.

The claimant sought permission to bring judicial review proceedings concerning the conduct of his appeal against the renewal of a Violent Offender Order. The Crown Court had initially directed that witnesses whose statements were relied upon be made available for cross-examination. It later revoked that direction after recognising that rule 33.4 of the Civil Procedure Rules did not apply to the statutory appeal.

The claimant challenged the Crown Court’s power to revoke the direction, the scope of its power to order cross-examination, the lawfulness of its subsequent decision, and the classification of the statements as hearsay. Permission had previously been refused on the papers by Lang J.

1. Permission refused. The claimant’s challenge to the Crown Court’s power to order cross-examination was arguable, but that did not make the judicial review claim viable.
2. Rule 5A(8) of the Crown Court Rules 1982 gives the Crown Court a broad power to vary or revoke a case-management direction. Rule 5A(9), which identifies circumstances in which a party may apply for variation, does not control or restrict the court’s general power under rule 5A(8). The court may revisit a direction on its own initiative or after a party draws a good reason to its attention.
3. The Crown Court was entitled to reconsider the direction after recognising that it had proceeded on the mistaken basis that CPR 33.4 applied. It adopted a fair process and was entitled to conclude that the claimant’s challenges to the statements could be addressed through submissions and supporting material at the substantive appeal hearing.
4. The decision not to reinstate or exercise the cross-examination power was therefore a lawful and reasonable exercise of judgment and discretion. The delay objection was also unfounded, since the claimant reasonably awaited the Crown Court’s later determination before promptly bringing judicial review proceedings.
5. The statements were hearsay within section 1 of the Civil Evidence Act 1995, because hearsay means a statement made otherwise than by a person while giving oral evidence in the proceedings.

• High Court (Administrative Court): Lang J refused permission for judicial review on the papers on 20 July 2023. Fordham J, on renewal, agreed with that conclusion and refused permission.