Challenge by a surety to an estreatment of his recognizance was not a matter relating to a trial on indictment for the purpose of section 29(3) because it did not affect the conduct of the trial. A sensible legislative purpose can be seen for excluding appeal or judicial review of any decision affecting the conduct of a trial on indictment, whether given in the course of the trial or by way of pre-trial directions. To allow an appellate or review process might seriously delay the trial. An aggrieved prosecutor has no remedy, because prosecutors never enjoyed rights of appeal or review when unsuccessful in trials on indictment. If the Defendant is so aggrieved, his remedy is in appeal against conviction, for a material irregularity may well result not only from a decision during the trial, but equally from a decision given in advance of the trial which affect the conduct of the trial, eg a wrongful refusal to grant him legal aid.
Lord Bridge of Harwich said: ‘It is, of course, obvious that the phrase ‘relating to trial on indictment’ in section 28(2)(a) and section 29(3) is apt to exclude appeal or judicial review in relation to the verdict given or sentence passed at the conclusion of a trial on indictment, both of which are subject to appeal as provided by the Criminal Appeal Act 1968. I accept Mr Laws’ submission that in the context, as in sections 76 and 77 of the Act of 1981, the words ‘trial on indictment’ must include the ‘trial’ of a defendant who pleads guilty on arraignment. Beyond this it is not difficult to discern a sensible legislative purpose in excluding appeal or judicial review of any decision affecting the conduct of a trial on indictment, whether given in the course of the trial or by way of pre-trial directions. In any such case to allow an appellate or review process might, as Shaw LJ pointed out in Brownlow’s case [1980] QB 530, 544, 545, seriously delay the trial. If it is the prosecutor who is aggrieved by such a decision, it is in no way surprising that he has no remedy, since prosecutors have never enjoyed rights of appeal or review when unsuccessful in trials in indictment. If, on the other hand, the defendant is so aggrieved, he will have his remedy by way of appeal against conviction under the Criminal Appeal Act 1968 if he has suffered an injustice in consequence of a material irregularity in the course of the trial, which, I apprehend, may well result not only from a decision given during the trial, but equally from a decision given in advance of the trial which affects the conduct of the trial, e.g. a wrongful refusal to grant him legal aid . . It must not be thought that in using the phrase ‘any decision affecting the conduct of a trial on indictment’ I am offering a definition of a phrase which Parliament has chosen not to define. If the statutory language is, as here, imprecise, it may well be impossible to prescribe in the abstract a precise test to determine on which side of the line any case should fall and, therefore, necessary to proceed, as Mr Henderson for the appellant submitted that we should, on a case by case basis. But it is obviously desirable that your Lordships’ House should give as clear guidance as the statutory language permits, and I hope the criterion I have suggested may provide a helpful pointer to the right answer in most cases.’
Judges:
Lord Bridge of Harwich
Citations:
[1985] 1 AC 623
Statutes:
Supreme Court Act 1981 29(3), Criminal Appeal Act 1968
Jurisdiction:
England and Wales
Citing:
Distinguished – Amand v Home Secretary and Minister of Defence of Royal Netherlands Government HL 1943
A Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a . .
Distinguished – Regina v Southampton Justices ex parte Green CA 1976
The court considered whether as the Court of Appeal, it had jurisdiction to hear an appeal against the Divisional Court’s refusal to quash an order estreating a recognisance.
Held: It did. Lord Denning MR said that ‘the matter is criminal’ if . .
Cited by:
Cited – Regina v District Court Martial Sitting at RAF Lyneham (ex parte SAC Wayne Robert James Stoodley) Admn 20-May-1998
The defendant sought certiorari of a refusal of an adjournment of his hearing by the respondent. His defence team had requested an adjournment for a psychiatric report. The court had said such a report would not go as to mens rea.
Held: The . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court and Another CA 25-Oct-2011
The claimant newspaper sought to appeal against a refusal by the respondent to disclose papers filed in a case before it. The court considered whether it had jurisdiction to hear an appeal.
Held: Under the 1981 Act no appeal would lie if the . .
Cited – Regina (on the Application of) Snelgrove v the Crown Court at Woolwich, and the Crown Prosecution Service Admn 29-Sep-2004
The claimant awaited trial for GBH. The claimant sought judicial review of directions given for 1) to direct disclosure of material to the claimant; 2) to adjourn the application to enable him to call oral evidence; 3) to consider any material . .
Dicta approved – Regina v Manchester Crown Court and Ashton and Others, ex parte Director of Public Prosecutions HL 7-May-1993
A Crown Court decision to stay an indictment for lack of jurisdiction, was not susceptible to Judicial Review. This was a ‘decision affecting conduct of trial’. The House considered the meaning of the phrase ‘other than its jurisdiction in matters . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Lists of cited by and citing cases may be incomplete.
Magistrates, Criminal Practice, Judicial Review
Updated: 04 May 2022; Ref: scu.179889
