Factual and Procedural Background
The case concerns judicial review applications arising from the imposition and administration of indeterminate sentences for public protection ("IPP") under the Criminal Justice Act 2003. The original applicant, referred to here as Prisoner A, was convicted of burglary with intent to cause criminal damage in April 2005 and sentenced in September 2005 to an IPP sentence with a minimum tariff of nine months. Although eligible for release in January 2006, Prisoner A was not released until July 2011, following a Parole Board decision. Prisoner A challenged the lawfulness of his continued imprisonment on the basis that he had been denied access to rehabilitative courses, leading to litigation that was ultimately unsuccessful domestically but successful before the European Court of Human Rights.
Following release, Prisoner A remained subject to an indeterminate licence period of at least ten years, as stipulated by s. 31A of the Crime (Sentences) Act 1997. Prisoner A commenced judicial review proceedings in April 2013 challenging the mandatory minimum ten-year licence period as incompatible with his rights under Article 8 of the European Convention on Human Rights. The Divisional Court dismissed the claim in December 2013 and refused permission to appeal, but permission was later granted by a Court of Appeal judge in May 2014. The appeal was stayed pending a Supreme Court decision and later dismissed for non-progression in August 2016 after Prisoner A ceased to pursue it.
Another individual, Prisoner B, was later identified and substituted as appellant to pursue the substantive issue. Prisoner B had also received an IPP sentence prior to legislative amendments and was released on licence in April 2015 but subsequently recalled to custody. Prisoner B sought permission to appeal the Divisional Court’s 2013 decision and an extension of time to do so. Questions arose as to the Court of Appeal's jurisdiction to hear the appeal, given statutory restrictions on appeals in criminal causes or matters under the Senior Courts Act 1981, as interpreted in light of the Supreme Court’s recent decision in R (Belhaj) v Director of Public Prosecutions (No. 1) [2018] 3 WLR 435.
Legal Issues Presented
- Whether the Court of Appeal has jurisdiction to entertain an appeal arising from judicial review proceedings challenging the lawfulness of licence conditions attached to an indeterminate sentence for public protection, given the statutory restriction on appeals in criminal causes or matters under s. 18(1) of the Senior Courts Act 1981.
- The proper interpretation and application of the phrase "criminal cause or matter" in the context of judicial review proceedings related to criminal sentencing and licence conditions.
- Whether the licence regime imposed under s. 31A of the Crime (Sentences) Act 1997 is a fundamental part of a criminal sentence or merely collateral administration, affecting the jurisdictional question.
Arguments of the Parties
Appellant's Arguments
- The claim seeks a declaration of incompatibility with Article 8 rights, which would not directly alter the sentence but might prompt legislative change, indicating the claim is not a criminal cause or matter.
- The mandatory licence period arises from statutory provisions and is part of the administration of the sentence, not the judicial sentencing exercise itself, thus collateral to the criminal proceedings.
- Previous assumptions of jurisdiction in similar cases support the view that this appeal should be entertained.
- The criminal proceedings in the Crown Court have concluded, and this judicial review cannot result in punishment, making it civil in nature.
Respondent's Arguments
- The Supreme Court’s decision in Belhaj supports a broad interpretation of "criminal cause or matter," encompassing judicial review of criminal sentencing matters.
- The licence regime is an integral and fundamental part of the IPP sentence, not collateral or merely administrative.
- The licence imposes ongoing restrictions on liberty and risk management, thus forming part of the criminal process.
- Jurisdictional assumptions in prior Court of Appeal cases must be read in light of Belhaj and do not undermine this conclusion.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Belhaj) v Director of Public Prosecutions (No. 1) [2018] 3 WLR 435 |
Broad interpretation of "criminal cause or matter" includes judicial review of decisions made in criminal causes. |
Guided the court to apply a broad meaning to the phrase and affirm jurisdictional restrictions on appeals in criminal matters. |
| ex parte Woodhall (1888) 20 QBD 832 |
Criminal cause or matter should be given the widest possible interpretation; no appeal lies in any criminal matter. |
Reinforced the broad scope of "criminal cause or matter" for jurisdictional purposes. |
| Amand v Home Secretary and Minister of Defence of the Royal Netherlands Government [1943] AC 147 |
Test for whether proceedings are criminal cause or matter depends on the nature and character of the proceedings. |
Confirmed that proceedings integral to criminal justice system are criminal causes or matters. |
| R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2011] 1 WLR 3253 |
Applications collateral to criminal proceedings are not necessarily criminal causes or matters. |
Distinguished collateral applications from core criminal proceedings, limiting the scope of "criminal cause or matter". |
| LO (Jordan) v Secretary of State for the Home Department [2011] EWCA Civ 164 |
In some circumstances, permission to appeal may be granted even if jurisdiction is declined. |
Considered but declined to apply in the present case due to procedural differences. |
| George Wimpey UK Ltd. v Tewkesbury B.C [2008] 1 WLR 1649 |
Permission to appeal may be granted to a party not involved in first instance proceedings in appropriate circumstances. |
Relied upon to support substitution of appellant in the present case. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the statutory framework, relevant case law, and the nature of the underlying proceedings. It emphasized the statutory restriction under s. 18(1) of the Senior Courts Act 1981, which bars appeals to the Court of Appeal in criminal causes or matters. The court reviewed historical and recent authorities, including the Supreme Court’s decision in Belhaj, which endorsed a broad interpretation of "criminal cause or matter" encompassing judicial review proceedings related to criminal sentencing.
The court rejected the appellant’s argument that the licence regime is merely administrative and collateral to the sentence. It held that the licence regime is a fundamental part of the IPP sentence, imposing ongoing liberty restrictions and risk management obligations integral to the criminal process. The fact that the judicial review seeks a declaration of incompatibility does not remove the criminal nature of the subject matter.
The court cautioned against an over-expansive interpretation of the phrase "criminal cause or matter," but found that the present case clearly falls within it. The court distinguished this case from those involving collateral matters or executive decisions unrelated to the sentencing regime itself. It acknowledged procedural complexities but concluded that the Court of Appeal lacks jurisdiction to entertain the appeal.
Finally, the court declined to grant permission to appeal on the jurisdictional issue, noting that the appellant remains free to initiate fresh judicial review proceedings in the Administrative Court.
Holding and Implications
The court held that it has no jurisdiction to entertain the appeal because the applications arise in a criminal cause or matter within the meaning of s. 18(1) of the Senior Courts Act 1981.
The direct consequence is that the appeal is dismissed and cannot proceed in the Court of Appeal. The appellant retains the option to bring fresh judicial review proceedings before the Administrative Court. The decision does not establish new legal precedent beyond affirming the broad scope of "criminal cause or matter" in this context. It reinforces the principle that challenges to sentencing regimes integral to criminal sentences fall outside the Court of Appeal’s civil jurisdiction and must proceed, if at all, through the Supreme Court following appropriate certification.