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 a Divisional Court order dated 18 July 2017. The Divisional Court had refused permission to appeal partly on the basis that the Court of Appeal lacked jurisdiction under section 18(1)(a) of the Senior Courts Act 1981. The claimants' original judicial review, issued on 7 March 2016, challenged the lawfulness of search warrants issued and executed pursuant to the Police and Criminal Evidence Act 1984 in respect of their premises. The underlying investigations related to alleged conspiracy offences. The judicial review sought declarations of unlawfulness, quashing of the warrants, return and destruction of seized material, prohibition of use of information obtained, damages, and costs.
Permission for judicial review was granted on the basis that the warrants failed to disclose material matters. On 29 November 2016, the Divisional Court quashed the warrants and declared the related entries and searches unlawful, ordering the return of seized property within 56 days unless an application was made under section 59 of the Criminal Justice and Police Act 2001. The third defendant failed to comply with the time limit for this application, which was subsequently filed late and without supporting evidence. The claimants opposed the late application.
On 10 March 2017, the third defendant applied for retrospective variation of the time limit. Notification was sent to a generic email of the claimants' solicitors but was not received, resulting in no response. On 27 March 2017, the application was granted on paper. Upon discovery of the lack of notice, a de novo hearing was held on 18 July 2017 before a Divisional Court, which varied the original order by extending the return period from 56 to 58 days, thus validating the section 59 application. The claimants now seek to appeal this variation order, contending the Divisional Court lacked jurisdiction to make it.
Legal Issues Presented
- Does the Court of Appeal have jurisdiction to entertain the proposed appeal against the Divisional Court's order of 18 July 2017 under section 18(1)(a) of the Senior Courts Act 1981?
- Whether the order of 18 July 2017, varying the previous order, constitutes a judgment in a criminal cause or matter for the purposes of section 18(1)(a) of the 1981 Act.
Arguments of the Parties
Appellant's Arguments
- The judicial review proceedings were a criminal cause or matter, but the subsequent application to vary the order was a "free-standing" application under Civil Procedure Rules 3.1(7) and thus civil in nature.
- The character of the variation order should be determined by the nature of the application itself, focusing on the conduct of solicitors rather than the underlying criminal context.
- It would be anomalous to bar an appeal to the Civil Court of Appeal in these circumstances.
Respondent's Arguments
- The entire judicial review and subsequent proceedings, including the variation order, are part of a criminal cause or matter under the Senior Courts Act 1981.
- The order of 18 July 2017 is inextricably linked to the original criminal cause and cannot be considered a separate civil matter.
- The section 59 application, which the variation order validated, is itself a criminal cause or matter.
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 production orders under the Police and Criminal Evidence Act 1984 constitute a criminal cause or matter. |
The court applied this authority to confirm that all subsequent proceedings related to such orders, including the variation order, are criminal in nature and preclude appeal to the Court of Appeal. |
| Tan v Cameron [1992] 2 AC 205 |
The character of the cause or matter is determined by the underlying nature of the proceedings, not by procedural techniques resembling civil matters. |
The court relied on this to reject the appellant’s argument that the variation order was civil in character despite the criminal nature of the underlying cause. |
| 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 where underlying warrants have been quashed. |
The court referenced this to emphasize that the section 59 application validated by the variation order was itself criminal in nature. |
| Darroch v Football Association Premier League [2017] 4 WLR 6 |
Illustrates the general judicial approach to characterizing causes or matters as criminal or civil. |
Used as further illustration supporting the court’s conclusion that the variation order related to a criminal cause or matter. |
| Government of the USA v Montgomery [2001] 1 WLR 196 |
Example where a further proceeding in a criminal case was not itself criminal in nature. |
The court distinguished this case as factually dissimilar and not applicable to the present circumstances. |
| R (Guardian News and Media) Limited v Westminster Magistrates Court [2011] 1 WLR 3253 |
Where a collateral application by a non-party does not involve the exercise of criminal jurisdiction, it may not be criminal in nature. |
The court found this scenario not analogous to the present case where the variation order was not collateral but integral to the criminal cause. |
Court's Reasoning and Analysis
The court began by interpreting section 18(1)(a) of the Senior Courts Act 1981, which restricts appeals to the Court of Appeal from judgments of the High Court in criminal causes or matters except as provided by the Administration of Justice Act 1960. The court acknowledged the wide definitions of "cause" and "matter" under section 151 of the 1981 Act and confirmed that the original judicial review proceedings constituted a criminal cause or matter.
The court examined whether the subsequent order of 18 July 2017, which varied the original order, retained the character of a criminal cause or matter. The appellant argued this was a civil, free-standing application under CPR 3.1(7) focusing on solicitor conduct rather than the original criminal context. The court rejected this, emphasizing that the variation order was inextricably linked to the original criminal cause, specifically referencing the previous judgment and enabling the section 59 application, itself criminal in nature.
Relying on established authorities, including Carr v Atkins and Panesar, the court held that all subsequent proceedings relating to the original judicial review order remained within the criminal cause or matter. The court distinguished cases cited by the appellant where collateral or distinct civil proceedings arose from criminal matters, finding those scenarios inapplicable here.
Consequently, the court concluded that the Divisional Court’s order of 18 July 2017 was a judgment in a criminal cause or matter, and therefore the Court of Appeal lacked jurisdiction to entertain the proposed appeal.
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 under section 18(1)(a) of the Senior Courts Act 1981 to hear the proposed appeal against the Divisional Court’s order of 18 July 2017.
This decision means the claimants cannot pursue their appeal in the Court of Appeal and would need to seek leave to appeal to the Supreme Court if applicable. No new legal precedent was established; the ruling reaffirms the established principle that appeals from High Court judgments in criminal causes or matters are restricted to the Supreme Court unless otherwise provided by statute.