Recent decisions of the Supreme Court and Court of Appeal have clarified the definition of a ‘criminal cause or matter’ for the purpose of section 18(1) of the Senior Courts Act 1981. Practitioners instructed to challenge a judicial review determination in a case arising from, or connected with, criminal proceedings may wish carefully to examine these decisions to avoid pursuing an incorrect avenue of challenge which would lead to the dismissal of their appeal for want of jurisdiction.
Section 18(1) provides: ‘No appeal shall lie to the Court of Appeal – (a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter…’. The effect of this provision is that the Court of Appeal has no jurisdiction to entertain an appeal in a ‘criminal cause or matter’, except where specifically provided for, such as in cases of contempt of court or in applications for habeas corpus. An appeal in such a case would need to proceed directly to the Supreme Court upon the High Court certifying that a question of law of general public importance is involved in the decision (section 1 of the Administration of Justice 1960).
Recently, the Supreme Court considered the definition of ‘criminal cause or matter’ in R (Belhaj) v Director of Public Prosecutions [2018] 3 WLR 435. The issue in the appeal was whether judicial review proceedings, which sought to challenge a decision by the Director of Public Prosecutions not to prosecute, were ‘proceedings in a criminal cause or matter’within the meaning of section 6(11) of the Justice and Security Act 2013.
The Court held that the expression ‘proceedings in a criminal cause or matter’ includes proceedings by way of judicial review of a decision made in a criminal cause according to their ordinary and natural meaning, and nothing in the context or purpose of the legislation suggests a different interpretation (Lord Sumption, §15). Such a cause would include a challenge to a decision to prosecute or not to prosecute, or an extradition case.
Subsequently, the Court of Appeal (Civil Division) in McAtee v. Secretary of State for Justice [2018] EWCA Civ 2851, held that a challenge by an individual to the operation of his licence conditions was a criminal cause or matter and accordingly the Court did not have jurisdiction to entertain it. The Court (Leveson PQBD, Davis LJ and Lewison LJ) explained (at §41) the key principles to be derived from the decision of the Supreme Court in Belhaj ,as follows:
‘(1) For the purposes of s. 18 of the Senior Courts Act 1981 a broad meaning is to be given to the phrase “criminal cause or matter”.
(2) The phrase applies with regard to any question raised in or with regard to proceedings, the subject matter of which is criminal, at whatever stage of the proceedings the question arises.
(3) A decision on a matter which is collateral to the exercise of criminal jurisdiction will not necessarily be a decision in a “criminal cause or matter.”
(4) A “matter” is wider than a “cause.”
(5) It is necessary to focus on the nature and character of the underlying litigation in which the matter arises.
(6) Judicial review is not to be regarded as inherently a civil proceeding. It depends on the subject matter whether or not it is so in any given case.’
The Court in McAteee emphasised (at §47) that where this particular jurisdictional issue arises, a careful individual appraisal remains necessary by reference to the circumstances of each case. The Court also underlined (as had Lord Sumption in Belhaj (at §20)) that it is not the law that just because the underlying proceedings are criminal in nature then any decision or step thereafter taken which has some sort of connection with those criminal proceedings is necessarily of itself a criminal cause or matter.
As for Mr McAtee’s appeal, the Court held that it was clearly a criminal cause or matter. The fact that Mr McAtee was seeking a declaration of incompatibility did not of itself mean that the case was not criminal: he was seeking a declaration in the hope of effecting a change to the licence provisions to which he was subject. To focus solely on the relief sought would depart from the requirement to focus on the underlying subject matter. The licence provisions were not simply to do with the administration of the sentence; both the licence and the licensing regime were a fundamental part of the sentence imposed by the judge. Mr McAtee was challenging the legality of an aspect of his sentence and he only had standing to do so because he was subject to the licence regime as part of his sentence. Thus, the subject matter of both the underlying proceedings and the judicial review claim was criminal.
It is clear that the Courts will be approaching the question of whether an appeal is a ‘criminal cause or matter’with renewed stringency in light of the decisions in Belhaj and McAtee. It may not be safe for practitioners to assume – without careful consideration of these judgments and the facts of their particular case – that there is a safe route to the Court of Appeal for challenges with a criminal flavour, even if in previous instances the Court has accepted jurisdiction.
