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Third party challenges to the courts' treatment of offenders

Published online by Cambridge University Press:  02 January 2018

Jeremy Horder
Jeremy Horder*
Affiliation:
Law Commission for England and Wales; Oxford University*
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Abstract

I will argue that – as an exception to the general rule adopted in England and Wales – third parties, including victims, should in some circumstances be permitted to bring proceedings for (inter alia) judicial review of sentences, and other measures, imposed on offenders. Such proceedings should not be ruled out when parts of sentences, or other orders, are meant to affect the interests of individual third parties themselves, and the prosecution cannot reasonably be expected to be solely responsible for protecting those interests. However, I will also conclude that, from a public law perspective, there is a preferable solution. Third parties who may be adversely affected by sentences or orders imposed on offenders should sometimes be given a limited degree of involvement in the process leading up to the imposition of those sentences or orders. Recent legislation takes us some way towards this goal.

Type
Research Article
Information
Legal Studies , Volume 28 , Issue 3 , September 2008 , pp. 356 - 373
Copyright
Copyright © Society of Legal Scholars 2008

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References

1. R v Nunn [1996] 2 Cr App R(S) 136 at 140.

2. R (on the application of Ralph Bulger) v The Secretary of State for the Home Department, The Lord Chief Justice of England and Wales [2001] WL 98187 (QBD) (Admin Court) at [20]–[21]. I am grateful to Andrew Ashworth for his assistance in helping me to formulate my views on this case, although he may well not share them.

3. Bulger, above n 2, at [21].

4. Anyone disposed to doubt this should consider the case of R (On the Application of Cornerhouse Research and the Campaign against the Arms Trade) v the Director of the SFO & BAE Systems PLC [2008] EWHC 714.

5. See Ashworth, Andrew Sentencing and Criminal Justice (Cambridge: Cambridge University Press, 4th edn, 2005)CrossRefGoogle Scholarch 3.

6. For fuller discussion, see Shute, Stephen New Civil Preventative Orders: Sexual Offences Prevention Orders, Foreign Travel Orders, Risk of Sexual Harm Orders 2004 Crim LR 417.Google Scholar

7. See, for example, R v D (Sexual Offences Prevention Order) [2006] 1 WLR 1088 (CA). For consideration of orders relevant to such cases in a family law context, see Nottinghamshire County Council v P [1993] 2 FLR 134.

8. A full review of the distinctions between procedures for challenging decisions in the magistrates’ court and in the Crown Court can be found in the Law Commission's Consultation Paper The High Court's Jurisdiction in Relation to Criminal Proceedings – A Consulation Paper No 184 (London: TSO, 2007).

9. Judicial review may also, however, be available at the end of a magistrates’ court case. The relationship between the two kinds of remedy was considered by Collins J in R v Liverpool City Magistrates [2006] EWHC 887 (Admin).

10. Drapers’ Co v Hadder (1892) 9 TLR 36.

11. See text above at n 2. It is possible for a defendant to obtain judicial review of the punitive element of a sentence. This can happen where (exceptionally) an appeal is not available and case stated not the appropriate procedure, if the sentence was so far outside the normal range that its imposition amounted to an error of law: R v St Albans Crown Court ex parte Cinnamond [1981] QB 480 (the ‘Cinnamond rule’). It is, though, almost inconceivable that under the current law the High Court would permit a third party to seek judicial review of such a element in the sentence in the same circumstances. For suggested changes to the law, see section 7 below.

12. See above n 3.

13. R v Ipswich Justices ex parte Robson [1971] 2 QB 340.

14. R v Nunn, above n 1, at 140.

15. Bulger, above n 2, at [20]–[21].

16. Moreover, there will be no civil remedy against a chief police officer in respect of his or her (in)actions so far as complaints under s 104(5) of the 2003 Act are concerned, should a victim be harmed by a sex offender against whom it is said an order should have been obtained (or varied in some way) under that provision: see Vicario v Commissioner of Police of the Metropolis The Times 4 January 2008 (CA). See more broadly, Law Commission Remedies Against Public Authorities (London: TSO, 2008, forthcoming).

17. Ordinarily, of course, an offender would wish to challenge an over-broad order him- or herself, but this might not always be the case. He or she might, for example, wish to avoid any further publicity in relation to the case, or any unnecessary contact with the authorities.

18. In essence, the explanation is that, historically, the High Court has had jurisdiction only over courts of inferior jurisdiction, such as magistrates’ courts, and has not had jurisdiction over courts of equal standing, such as the Crown Court. See Law Commission, above n 8, at paras 1.2–1.16.

19. Smalley v Warwick Crown Court [1985] 80 Cr App R 205; Sampson v Crown Court at Croydon [1987] 84 Cr App R 203 at 376.

20. Smalley, ibid.

21. Ibid, at 216.

22. See R (Crown Prosecution Service) v the Crown Court at Guildford [2007] EWHC 1798 (Admin).

23. See Sampson, above n 19, at 379 (per Lord Bridge). See also R v Director of Public Prosections ex parte Kebilene [2000] 2 AC 326 at 394 (Lord Hobhouse).

24. R (Faithfull) v Ipswich Crown Court [2007] EWHC 2763 (Admin).

25. Confiscation orders are meant to deny offenders the fruits of their crime, the profits of crime going to the state, rather than to the individual victim.

26. It was not possible for the prosecution to correct the sentence under the so-called ‘slip’ rule, because there is a strict 28-day limit for the correction of errors by this means, and that period had passed before the error emerged.

27. In recent years, this has become a common way to understand the purpose of the section. Section 29(3) and its predecessor under the Courts Act 1971 simply imposed a blanket prohibition on challenges to judicial decisions relating to trial on indictment. See further, section 4 below.

28. See above, text following n 19.

29. There were two additional arguments, not further considered here. First that Faithfull had been deprived of his possessions under Art 1 of the First Protocol to the European Convention on Human Rights, or of his right to a remedy under Art 13. On this, see section 5 below. Secondly, that the High Court could grant a declaration that the failure to make a compensation order was unlawful, since the High Court's jurisdiction to make declarations is not addressed in s 29(3) of the 1981 Act. This argument was rejected by the High Court on the grounds that to have made such a declaration would inevitably have had the effect of giving the applicant in substance what he was not permitted to obtain through the orders covered by s 29(3).

30. Bulger, above n 2.

31. Bulger, ibid, at [30].

32. Ibid.

33. See above, discussion following n 14.

34. See above, text following n 7.

35. Following Guildford, above n 22.

36. Patel [2005] EWCA Crim 977. This decision was not cited in argument or discussed in Faithfull. To be fair, the jurisprudence in this area of the law is very confused. It has been found, for example, that the making of a legal aid contribution order at the conclusion of the trial is immune from challenge (Re Sampson [1987] 1 WLR 194). The same view has been taken of a judge's refusal to award an acquitted defendant his or her costs out of central funds (Ex parte Meredith [1973] 1 WLR 435).

37. R v Manchester Crown Court ex parte H [2000] 1 WLR 760.

38. R v Crown Court at Maidstone ex parte Harrow LBC [2000] QB 719. See also Ex parte M The Times 28 April 1998 (QBD).

39. Maidstone, ibid, at 742.

40. See Michael Supperstone and Joanne Clement ‘Judicial Review: A Citizen's Remedy’ in S Hetherington (ed) Halsbury's Laws of England Centenary Essays (London: LexisNexis, 2007) pp 17 and 18, ‘The notion that judicial review is confined to jurisdictional error and error of law on the face of the record has been seriously eroded if not destroyed.…the distinction between errors within and errors without jurisdiction should be regarded as having passed into history’.

41. See R (Kenneally) v Crown Court at Snaresbrook [2001] EWHC Admin 968. See also R (on the application of Malik) v Central Criminal Court and Another [2006] EWHC 1539 (Admin).

42. Keneally, ibid; aee also Malik, ibid, at [40].

43. See the Mental Health Act 1983, s 51(5).

44. Malik, above n 41.

45. On which, see R (M) v Isleworth Crown Court [2005] EWHC 363 (Admin).

46. Malik, above n 41, at [16].

47. Guildford, above n 22.

48. Ibid, at [16].

49. Ex Parte Perkins The Times 28 April 1998 (QBD).

50. Faithfull, above n 24, at [35].

51. Ibid, at [30].

52. See also R v Mitchell [2001] 2 Cr App R (S) 29.

53. Malik, above n 41; and above, text following n 44.

54. By analogy with Kenneally, above n 41.

55. DPP v Crown Court at Manchester and Huckfield [1993] 1 WLR 1524.

56. Ibid, at 1530.

57. See the analysis in Law Commission, above n 8, Part 2.

58. There may be other principles needed to govern when, for example, the defendant (a party to the proceedings) challenges the failure to make an order guaranteeing his or her anonymity: see above, text at n 37.

59. See above, text following n 14.

60. See above, text following n 6.

61. See above, text at the start of section 1.

62. See Sampson, above n 19, at 379 (per Lord Bridge). See also Kebilene, above n 23, at 394 (Lord Hobhouse). Indeed, these proceedings would not appear to be criminal proceedings as such.

63. By analogy with the procedure under the Protection from Harassment Act 1997: see above, text following n 7.

64. Ex parte M, above n 38.

65. See above, text at nn 36 and 37.

66. Faithfull, above n 24, at [37]. Section 9(2) of the Human Rights Act 1998 provides, where proceedings under the Act respecting judicial conduct take the form of judicial review, ‘That does not affect any rule of law which prevents a court from being the subject of judicial review’.

67. See R v Croydon Crown Court ex parte Cox [1997] 1 Cr App R 20.

68. Rowlands [1998] QB 110.

69. For that view, in a very different context, see R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067.

70. See generally, C Lewis ‘The Exhaustion of Alternative Remedies in Administrative Law’ [1992] Cambridge Law Journal 138.

71. R v Falmouth and Truro Port Health Authority ex parte South West Water Ltd [2001] QB 445.

72. Law Commission, above n 6, at para 8.12.

73. Law Commission, above n 8, at paras 5.36–5.40.

74. Overturning in substance the decision in Meredith, above n 36.

75. I put on one side here the possibility that someone might obtain criminal injuries compensation in separate proceedings.

76. Poole, Thomas Legitimacy, Rights and Judicial Review’ (2005) 25 OJLS 697 CrossRefGoogle Scholarat 725. For an important case that seems to exemplify Poole's point only too well, see Cornerhouse Research, above n 4.

77. In France, some third parties, such as victims and victims’ heirs, can join themselves as parties to the proceedings (by way of a conjoined civil action for damages) from the outset, if the case is one in which harm was suffered: see Catherine Elliot French Criminal Law (Cullompton: Willan Publishing, 2001) pp 32–34. I am not commending this particular way in which to involve affected third parties.

78. See the start of section 1 above.

79. See the start of section 1 above. In wholly exceptional circumstances, it is conceivable that a third party could pursue judicial review of a magistrates’ court decision at an interlocutory stage, but such challenges are normally ruled out by the availability post-trial of the case stated procedure.

80. See, generally, Ashworth, above n 5, pp 352–358.

81. See Practice Direction (Victim Personal Statements) [2002] 1 Cr App Rep (s) 482.

82. See Department for Constitutional Affairs Hearing the Relatives of Murder and Manslaughter Victims (London: Criminal Justice System, 2005).Google Scholar In homicide cases, the personal statement may be made by an advocate. Since 1990, the probation service has been obliged to contact victims to discover if they have concerns about the conditions attached to an offender's release. The Parole Board must take these into account in setting licence conditions: see the valuable general discussion in Carolyn Hoyle and Lucia Zedner ‘Victims, Victimization and Criminal Justice’ in ch 15.

83. Department for Constitutional Affairs Rebuilding Lives, Supporting Victims of Crime, Cm 6705 (London: Criminal Justice System, 2005), cited by James Chalmers, Peter Duff and Fiona Leverick ‘Victim Impact Statements: Can Work, Do Work (For Those Who Bother to Make Them)’ [2007] Crim LR 360 at 361.

84. Criminal Justice Act 1988, s 36.

85. See Cinnamond, above at n 11.

86. See above, text following n 7.

87. Domestic Violence, Crime and Victims Act 2004, s 12(3), which is not yet in force.

88. These can be made by the High Court or by the Crown Court, in what are regarded as civil proceedings, if the person in question has been involved in serious crime, and the Court has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. An order may, for example, prevent a fraudster from working in a bank, or prevent a gangster from contacting other members of a gang.

89. It should be noted that the court is under no duty actively to seek out third parties who are or may be significantly adversely affected by the making of an order. So, it cannot be said that all who ought to be heard will necessarily be heard. In practice, it will probably be for the prosecution to find out about and alert such third parties. Those who have not made representations before an order is made (or varied or discharged) in the Crown Court will have to rely for a remedy on – should it be permitted – judicial review, a remedy unobtainable against a decision of the High Court. The courts may say that an adequate alternative remedy in cases involving the Crown Court is the ability to persuade the offender or relevant prosecution authority to challenge the order (or the terms of it); but of course that depends on the offender or the prosecuting authority themselves having an interest in an appeal on the lines sought. See above, text at n 17 for the analogous discussion, where sexual offence prevention orders are in issue.

90. See above, text following n 7.