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Judicial Review in Criminal Law (UK): Challenging Decisions by Public Authorities
Introduction
Judicial review is a legal process used to challenge unlawful decisions made by public authorities. In the context of criminal law in England and Wales, judicial review can be used to challenge decisions made by organisations such as the Crown Prosecution Service (CPS), police, or other public bodies where those decisions are unlawful, irrational, or procedurally unfair.
Unlike criminal appeals, judicial review does not focus on whether someone is guilty or innocent of a criminal offence. Instead, it examines whether a public authority has acted lawfully and within its powers when making a decision affecting a criminal case.
Judicial review proceedings are typically heard in the High Court and involve complex legal arguments. As a result, anyone considering this route should seek advice from experienced criminal defence solicitors.
What Is Judicial Review?
Judicial review is a public law procedure allowing the courts to review the actions or decisions of public authorities. It ensures that organisations exercising public power act lawfully, fairly, and within the limits set by law.
The High Court does not substitute its own decision for that of the authority. Instead, the court assesses whether the decision was legally flawed.
If the court finds that the decision was unlawful, it may:
- quash the decision
- require the authority to reconsider the matter
- declare the decision unlawful
When Can Judicial Review Apply in Criminal Law?
Although judicial review is primarily a public law remedy, it can arise in criminal justice contexts where a public authority’s decision affects criminal proceedings.
Challenging CPS Decisions
Judicial review may sometimes be used to challenge decisions made by the Crown Prosecution Service.
Examples may include:
- decisions to prosecute or not prosecute
- discontinuing criminal proceedings
- alleged misuse of prosecutorial discretion
However, courts are generally reluctant to interfere with prosecutorial decisions unless there is a clear legal error.
Decisions Made by Public Authorities
Judicial review may also apply to decisions made by other authorities involved in the criminal justice system, including:
- police investigative decisions
- licensing authorities
- regulatory bodies
- government departments
Where such decisions affect a criminal matter and appear unlawful, judicial review may be considered.
Grounds for Judicial Review
To succeed in judicial review proceedings, the claimant must show that the decision was legally flawed. The courts generally recognise three principal grounds.
Illegality
A decision may be unlawful if a public authority:
- acts outside its legal powers
- misinterprets legislation
- applies the wrong legal test
For example, if a public body misunderstands the legal framework governing its powers, the decision may be open to challenge.
Irrationality
This ground applies where a decision is so unreasonable that no reasonable authority could have made it.
The threshold is deliberately high. Courts will not interfere merely because they disagree with the decision.
Procedural Unfairness
Procedural fairness requires that public authorities follow proper procedures when making decisions.
Examples include:
- failure to allow a fair opportunity to respond
- failure to follow statutory procedures
- bias or apparent bias
If a decision is reached through an unfair process, judicial review may be available.
How the Judicial Review Process Works
Judicial review involves several procedural stages in the High Court.
Pre-Action Protocol
Before issuing proceedings, parties are usually required to follow the pre-action protocol for judicial review.
This typically involves sending a formal pre-action letter outlining the legal challenge and allowing the public authority to respond.
Permission Stage
Judicial review claims must first pass a permission stage.
At this stage, the High Court decides whether the case is arguable and should proceed to a full hearing.
If permission is refused, the claim does not proceed further.
Full Hearing
If permission is granted, the case proceeds to a full judicial review hearing where the court considers the legal arguments in detail.
The court may then grant remedies such as:
- quashing orders
- mandatory orders
- declarations
Time Limits for Judicial Review
Strict time limits apply to judicial review claims.
In most cases, claims must be brought:
promptly and within three months of the decision being challenged.
In criminal justice contexts, the courts may expect applications to be made even sooner due to the impact on ongoing proceedings.
Failure to act promptly can result in the claim being refused regardless of its merits.
Risks and Limitations of Judicial Review
Judicial review is a powerful but limited legal remedy.
Important limitations include:
- courts rarely interfere with prosecutorial discretion
- the process can involve significant legal costs
- strict procedural rules apply
- not all decisions are suitable for judicial review
It is therefore important to obtain specialist legal advice before initiating proceedings.
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How Criminal Defence Solicitors Can Assist
Judicial review proceedings are highly technical and require detailed legal analysis.
Experienced criminal defence solicitors can assist by:
- assessing whether judicial review is appropriate
- identifying potential legal grounds for challenge
- preparing pre-action correspondence
- representing clients in High Court proceedings
Early legal advice is often essential when considering whether a public authority’s decision should be challenged through judicial review.
Speak With Experienced Criminal Defence Solicitors
Judicial review proceedings can arise in complex criminal cases where public authorities have made decisions affecting an investigation or prosecution.
If you believe a decision within the criminal justice system may be unlawful, obtaining advice from experienced criminal defence solicitors is essential. A specialist legal team can assess the circumstances and advise whether judicial review may be an appropriate course of action
5 Key Takeaways
Key points about judicial review in criminal law include:
- Judicial review challenges the legality of decisions made by public authorities, not criminal convictions themselves.
- It can apply to decisions made by organisations such as the CPS or police.
- Cases are heard in the High Court rather than the Crown Court.
- There are strict time limits for bringing judicial review claims.
- The process is complex and usually requires specialist legal representation
Frequently Asked Questions
Judicial review is a legal process used to challenge unlawful decisions made by public authorities involved in the criminal justice system.
In some circumstances, decisions made by the Crown Prosecution Service may be subject to judicial review where the decision appears unlawful or procedurally unfair.
No. Judicial review examines whether a public authority acted lawfully, whereas criminal appeals challenge convictions or sentences.
Judicial review cases are usually heard in the High Court of England and Wales.
Most claims must be brought promptly and within three months of the decision being challenged.
In some situations, decisions made by police or other public authorities may be open to challenge through judicial review.
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