Shuker & Ors, Re Applications for Judicial Review

Factual and Procedural Background

The opinion concerns multiple applications for judicial review brought by applicants charged with offences classified as 'scheduled' under Schedule 9 to the Terrorism Act 2000. These offences are tried by a judge without a jury unless the Attorney General certifies that they should not be treated as scheduled offences, a process known as "de-scheduling." The applicants challenged the Attorney General's decision not to exercise this power to de-schedule their offences. The matter was heard by a Divisional Court comprising Kerr LCJ and Campbell LJ, addressing the justiciability of the Attorney General's decision, procedural fairness in the decision-making process, and compliance with Article 6 of the European Convention on Human Rights concerning fair trial rights.

Legal Issues Presented

1. Whether the Attorney General's decision not to certify the offences as non-scheduled (i.e., to de-schedule) is justiciable and subject to judicial review.
2. Whether the Attorney General failed to observe procedural fairness in the decision-making process, particularly regarding the applicants' opportunity to contribute effectively.
3. Whether the decision engages the applicants' rights under Article 6 of the European Convention on Human Rights, specifically the right to a fair trial, and if the procedure complied with those requirements.

Arguments of the Parties

Applicants' Arguments

• The Attorney General's decision is justiciable because it affects the fundamental right to trial by jury.
• The applicants were denied procedural fairness as they were not given an effective opportunity to influence the decision.
• The decision to deprive the applicants of trial by jury breaches Article 6 rights to a fair and public hearing.

Respondent's Arguments

• The Attorney General's decision is immune from judicial review due to the unique constitutional role and the doctrine of separation of powers.
• The decision involves sensitive material and policy considerations, making it unsuitable for full judicial scrutiny.
• Procedural fairness does not require disclosure of sensitive material or reasons for the decision.
• The deprivation of trial by jury does not violate Article 6 rights as the trial will remain fair and impartial.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first examined whether the Attorney General's decision to refuse certification (de-scheduling) was justiciable. It acknowledged the Attorney General's unique constitutional role and the sensitive nature of the decision, which often involves classified intelligence and policy considerations. However, the court concluded that the decision is justiciable, although subject to significant constraints on the extent of judicial review. It distinguished between justiciability (whether the court has jurisdiction) and reviewability (the scope and grounds of review), finding that the decision falls outside the rare category of decisions immune from review.

The court noted that the Attorney General's discretion is unfettered and that the decision-making process involves evaluating sensitive information, often not disclosed to the applicants for public interest reasons. It emphasized the necessity of a pragmatic approach, limiting judicial review grounds to exceptional circumstances such as bad faith or mala fides.

Regarding procedural fairness, the court held that even if judicial review were available, the applicants had the opportunity to make representations through solicitors, and the lack of disclosure of sensitive material did not necessarily deprive them of an effective opportunity to challenge the decision. The court declined to decide definitively whether procedural fairness required disclosure of such material.

On Article 6 ECHR, the court found that the applicants' rights in relation to the trial mode decision are public law rights involving significant official discretion and do not amount to civil rights under Article 6. Consequently, the decision to try the applicants without a jury does not breach their Article 6 rights, and the trial is not inherently unfair by virtue of the absence of a jury.

Finally, the court treated the application as a criminal cause or matter under the relevant procedural rules, affirming the appropriateness of the Divisional Court's composition for hearing the judicial review application.

Holding and Implications

The court DISMISSED the applications for judicial review.

The decision confirms that the Attorney General's discretion in certifying whether offences are scheduled under the Terrorism Act 2000 is subject to judicial review but only within narrowly defined limits, primarily excluding review on procedural fairness grounds and limiting review to exceptional cases such as bad faith. The ruling clarifies that decisions involving sensitive intelligence and high-level policy will attract a restrained supervisory role by the courts. Furthermore, the court established that the choice of trial mode (judge alone versus jury) in this context does not engage Article 6 rights to a fair trial in the sense of requiring jury trial, provided the trial itself is fair and impartial.

No new broad precedent was established beyond the application of existing principles to the specific statutory and factual context of de-scheduling offences under the Terrorism Act 2000.