The recent decision in Farhia Ali v Crown Court at Kingston [2017] EWHC 2706 (Admin) provides a reminder of the narrow availability of judicial review in relation to decisions of the Crown Court. In Farhia, a decision to refuse bail following the jury’s verdict was found not to be capable of being judicially reviewed as it was not within the supervisory jurisdiction of the High Court.

The High Court can ordinarily supervise inferior courts and tribunals through judicial review. Section 29(3) of the Senior Courts Act 1981 grants the High Court jurisdiction to make mandatory, prohibiting or quashing orders regarding decisions of inferior courts (including the Crown Court). However, the High Court does not retain this jurisdiction in “matters relating to trial on indictment” in the Crown Court. The crucial question before the court in Farhia was whether a Crown Court judge’s decision to refuse bail before the sentencing decision was a “matter relating to trial on indictment” or not.

Past case law provided the Court in Farhia with some assistance in answering this question. In R v Manchester Crown Court, Ex Parte DPP [1993] 1 WLR 1524, the court had considered the interpretation of “matters relating to trial on indictment”. It had held that if “the decision sought to be reviewed was one arising in the issue between the Crown and the Defendant formulated in the indictment”, then judicial review should not be permitted. With this in mind, a number of relevant cases have given guidance that Crown Court decisions are unlikely to qualify for review where the decision, for example:

  • Affects the conduct of the trial in any way (Re Smalley [1985] AC 622);
  • Is an integral part of the trial process (Re Sampson [1987] 1 WLR 194);
  • Is a matter that is not truly collateral to the indictment (R v Manchester Crown Court); or
  • Is in substance the answer to some issue between the prosecution and the defence arising during a trial on indictment (R v DPP, Ex Parte DPP Kebilene [2000] 2 AC 326).

Whether the pointers laid out above have greatly clarified the interpretation of section 29(3) is questionable. In R (Lipinski) v Wolverhampton Crown Court [2005] EWHC 1950 (Admin), Mr Justice Stanley Burton believed some of them pulled in opposite directions. Some implied procedural decisions would be caught by the exclusion and others implied they would not. In R v Manchester Crown Court, meanwhile, Lord Browne-Wilkinson described the wording of section 29(3) as “extremely imprecise”. In Farhia, Lord Justice Holyrode also questioned the certainty of the statutory language of section 29(3) where he said “there may be room for argument as to its application or non-application in certain circumstances”.

This legislative provision’s ambiguity provides room for manoeuvre, reflected in the difference in outcome between a past case close to the scenario before the Court in Farhia and Farhia itself. That past case was M v Isleworth Crown Court [2005] EWHC 363 (Admin), where the bail decision was made at an early stage of criminal proceedings, leading to the decision that it did not relate to trial on indictment for the purposes of section 29(3), leaving judicial review available. In Farhia, the bail decision was made following the verdict but before sentence. For that reason the Court considered it to be a matter relating to trial on indictment, and hence, judicial review was excluded. Future decisions may further clarify, or even alter this distinction, but for now, the message to defendants seems to be that judicial review is more likely to be available, if available at all, before a jury is sworn in.

On the face of it, the limitations of section 29(3) are justified. The trial judge ought to develop a grasp of the facts, the characteristics of the defendant, and the potential risks in a trial that mean he or she is better placed than a judicial review court would be to make those decisions. For example, in Farhia, the trial judge believed the defendant posed a risk of absconding and/or causing harm to her children; the Divisional Court judges could not have been as well informed on, and sensitive to, these issues. Additionally, if section 29(3) did not exist, defendants could significantly delay the resolution of criminal cases by repeatedly attempting to review technical points in the High Court.

However, judicial review is an important safeguard of justice and the rule of law. The narrowing of its availability in relation to Crown Court decisions should, therefore, always be subjected to close scrutiny. It is unfortunate that the drafting of section 29(3) has given rise to such uncertainty in an area where such important principles are at stake.