Factual and Procedural Background
This opinion concerns a preliminary issue regarding whether the Court of Appeal has jurisdiction to hear a proposed appeal by the claimants against an order of the Divisional Court dated 18 July 2017. The Divisional Court had refused permission to appeal partly because the Court of Appeal lacked jurisdiction under section 18(1)(a) of the Senior Courts Act 1981. The original judicial review claim was issued on 7 March 2016, challenging decisions to apply for, issue, and execute search warrants on the claimants' premises related to investigations into conspiracy offences. The claimants sought declarations of unlawfulness of the searches, quashing of the warrants, return of seized property, non-use of unlawfully obtained evidence, damages, and costs.
Permission for judicial review was granted on grounds that the warrants failed to comply with statutory disclosure requirements. On 29 November 2016, the Divisional Court quashed the search warrants and declared the entries and searches unlawful. The court ordered the return of seized property within 56 days unless the third defendant applied to the Crown Court under section 59 of the Criminal Justice and Police Act 2001 for relief, which would affect the return order.
The third defendant failed to apply to the Crown Court within the prescribed time, instead making a late application by email without supporting evidence. The claimants opposed this late application. Subsequently, on 10 March 2017, the third defendant sought retrospective variation of the time limit for the return of property. The claimants' solicitors did not receive notification of this application, and no response was filed. The Administrative Court granted the variation order on paper on 27 March 2017.
When the claimants' solicitors became aware of the order, a de novo hearing was held before the Divisional Court on 18 July 2017, which varied the original order by extending the return period from 56 to 58 days, thereby validating the late Crown Court application. The claimants now seek to appeal this variation order, contending that the Divisional Court lacked justification to vary the original final order.
Legal Issues Presented
- Whether the Court of Appeal has jurisdiction to entertain an appeal from the Divisional Court's order dated 18 July 2017 under section 18(1)(a) of the Senior Courts Act 1981.
- Whether the order of 18 July 2017, which varied a final order made in criminal proceedings, constitutes a judgment "in any criminal cause or matter" for the purposes of section 18(1)(a).
- Whether the application to vary the original order was a "free-standing" civil matter or intrinsically linked to the criminal cause or matter.
Arguments of the Parties
Appellant's Arguments
- The claimants argued that the Divisional Court had no justification to vary the original final order of 29 November 2016 under Civil Procedure Rules 3.1(7) or otherwise.
- It was contended that the 18 July 2017 order was not part of a criminal cause or matter but a separate, civil procedural application focused on the conduct of the third defendant's solicitors after the original order.
- The claimants asserted that the underlying criminal nature of the original judicial review proceedings was irrelevant to the characterisation of the variation application, which should not preclude appeal to the Civil Court of Appeal.
Respondent's Arguments
- The respondents maintained that the judicial review proceedings and all subsequent related orders, including the variation order, constituted a criminal cause or matter.
- They relied on statutory definitions and case law to support the proposition that the Court of Appeal lacks jurisdiction to hear appeals in criminal causes or matters except as expressly provided by statute.
- They argued that the variation order was inextricably linked to the original criminal proceedings and thus fell within the scope of section 18(1)(a) of the Senior Courts Act 1981, barring appeal to the Court of Appeal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Carr v Atkins [1987] 1 QB 963 |
Judicial review proceedings challenging orders under Police and Criminal Evidence Act 1984 constitute a criminal cause or matter, including all subsequent proceedings relating to such orders. |
The court applied this precedent to confirm that the variation order was part of the criminal cause or matter, thus barring appeal to the Court of Appeal. |
| Tan v Cameron [1992] 2 AC 205 |
The nature of the cause or matter 'in' which an appeal is brought determines jurisdiction; proceedings do not lose criminal character simply because civil procedural techniques are employed. |
The court relied on this to reject the claimants' argument that the variation application was civil in nature. |
| R (Panesar) v Central Criminal Court [2015] 1 WLR 2577 |
Proceedings under section 59 of the Criminal Justice and Police Act 2001 are criminal causes or matters even if underlying warrants have been quashed. |
Supported the conclusion that the variation order, which permitted section 59 application, was criminal in nature. |
| Darroch v Football Association Premier League [2017] 4 WLR 6 |
Illustrates the general position that proceedings connected to criminal causes or matters retain their criminal character. |
Used to reinforce the court’s reasoning on jurisdiction. |
| Government of the USA v Montgomery [2001] 1 WLR 196 |
Example where further proceedings, although connected to criminal proceedings, were civil in nature and thus outside criminal jurisdiction. |
Distinguished from the present case as factually dissimilar and thus not applicable. |
| R (Guardian News and Media) Limited v Westminster Magistrates Court [2011] 1 WLR 3253 |
Collateral applications by non-parties unrelated to the exercise of criminal jurisdiction can be civil and outside criminal cause or matter. |
Distinguished from the present case as the variation application was not collateral but integral to the criminal cause or matter. |
Court's Reasoning and Analysis
The court analysed the statutory framework under section 18(1)(a) of the Senior Courts Act 1981, which restricts appeals to the Court of Appeal in criminal causes or matters. It acknowledged that the original judicial review proceedings and the initial order of 29 November 2016 were criminal in nature. The court considered whether the subsequent variation order of 18 July 2017 was a separate civil matter or part of the criminal cause or matter.
Rejecting the claimants' argument that the variation was a "free-standing" civil application focused on solicitor conduct, the court found that the variation was intrinsically linked to the original criminal proceedings. The variation order directly affected the timing and validity of a section 59 application to the Crown Court, itself a criminal cause or matter.
The court relied heavily on established authorities, particularly Carr v Atkins, which confirmed that all subsequent proceedings related to judicial review orders under the Police and Criminal Evidence Act 1984 are criminal causes or matters. It further applied Tan v Cameron to emphasize that the criminal character of proceedings does not change simply because civil procedural rules are used in subsequent applications.
Other precedents, including Panesar and Darroch, reinforced the principle that proceedings connected to criminal causes or matters retain their criminal character, thereby restricting appeal rights. The court distinguished cases where subsequent proceedings were collateral or civil, finding that the present case did not fall into that category.
Accordingly, the court concluded that it lacked jurisdiction to hear the appeal, as the variation order was a judgment in a criminal cause or matter under the Senior Courts Act 1981.
Holding and Implications
The court's final decision was to REFUSE the application for permission to appeal, holding that the Court of Appeal has no jurisdiction to entertain the proposed appeal under section 18(1)(a) of the Senior Courts Act 1981.
The direct effect of this decision is that the variation order of 18 July 2017 stands and the appeal will not proceed in the Court of Appeal. No comment was made on the merits of the underlying appeal. This decision does not establish new precedent but applies existing legal principles regarding jurisdiction in criminal causes or matters.