Divisional Court
| Author | J A Coutts |
| DOI | 10.1177/002201839305700203 |
| Published date | 01 May 1993 |
| Date | 01 May 1993 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
LIMITS OF
JUDICIAL
REVIEW
RVVisitors to Lincoln's Inn, ex pCalder
The rapid growth in recent years of the scope of operation of judicial
review must be considered to be one of the most remarkable aspects of
the development of the jurisdiction of the courts in this century. So
frequent nowadays are the applications for judicial review by those
who complain of irregularities even in the criminal courts that any
pronouncement upon the procedure cannot fail to be of interest to the
criminal lawyer. In R v Visitors to Lincoln's Inn, ex pCalder [1992]3 WLR
994, counsel instanced the expansion of the courts' jurisdiction to cover
the Take-over Panel, the visitors to universities, the committees of
associations exercising statutory powers and other committees which
included the Professional Conduct Committee of the
Bar
Council. This
was claimed by counsel to indicate, first, that in any question of the further
growth of the jurisdiction
the
absence of precedent is not a compelling
argument and, secondly, that in determining the limits of their jurisdiction
the courts will look, not to the source of that jurisdiction, but to the
question whether the function exercised by the body whose decision they
are asked to review is a public function. In the instant case, two barristers
had been (separately) disbarred by a disciplinary committee of the Inns of
Court. Three High Court judges, sitting as Visitors to Lincoln's Inn,
dismissed the appeal (though varying the sentence in one case). The
barristers were given leave to apply for judicial review, but, on a preliminary
issue as to the court's jurisdiction, the Divisional Court held that it had
no authority to hear the case: a decision which will no doubt not halt the
onward march of the jurisdiction to grant judicial review, even though it
has caused it to miss a step.
The applicants claimed that it was self-evident that abarrister exercises
'public' functions, as is evidenced by the fact that his or her status qualifies
him or her for certain public appointments. Moreover, the established
jurisdiction of the High Court in relation to visitors to other public bodies,
and in particular in the case of other professional legal bodies, must mean
that the position of the three High Court judges who were visitors to an
Inn of Court should be no different. Indeed, in R v Chief Rabbi, ex p
Wachmann [1992] 1 WLR 1036, Simon Brown Jaccepted the court's
jurisdiction to grant judicial review of the Chief Rabbi's decision expressly
on the ground that there is
'no
distinction in this regard between rabbis
and for instance members of the Bar or members of a university' and
added that 'so far as the
Bar
or universities are concerned, once exclusive
and internal jurisdiction has been invoked and exhausted, the court can
review the visitors' decision', The question before the Divisional Court on
the present occasion was whether that dictum was correct.
There have been statements that the High Court may in certain
113
Journal
of
Criminal
Law
circumstances have a supervisory jurisdiction over the decisions of judges
of the High Court or indeed even of the Law Lords (see R v Hull University
Visitor, ex p Page
[1991]
1 WLR 1277), but normally such review will not
be available. The question at issue in the present case was not that
question, but was as to the capacity in which the three judges were sitting
when they sat as visitors in a disciplinary case.
If
they sat as judges of the
High Court performing functions as such, judicial review would not be
available.
If
they sat, not qua High Court judges, but simply as visitors,
their decision would be subject to judicial review, as they would clearly
be performing functions in the public domain.
It
has been decided, and is
now always assumed, that the judges on such an occasion are not sitting
as a court of law; but a survey of the history of the exercise of this function
made by the Divisional Court led it to the conclusion that the disciplinary
function was transferred to the High Court by s 16 of the Judicature Act
1973and that that function has been retained by the court through s 18 of
the Judicature Act 1925 and s 10 of the Supreme Court Act 1981. The
court was of opinion that these statutory provisions indicate that the role
of the judges in these disciplinary proceedings 'was totally different from
the role of visitors to universities and colleges', for 'they were acting as
judges and performing judicial duties which were an essential part of the
administration of justice in their courts'. Although the transfer of this
jurisdiction to the High Court 'has gone unnoticed for 119 years', it must
have the effect of distinguishing the judges performing this particular
function from other visitors and even from judges acting as visitors
exercising other functions than those required of them in the instant case.
One consequence of this decision has also gone. unnoticed. Since the
judges, when exercising appellant functions in relation to disciplinary
proceedings in the case of a barrister, have now clearly been held to be
exercising the functions of the High Court, it follows that an appeal must
lie from their decision to the Court of Appeal, pursuant to s 16(1) of the
Supreme Court Act 1981. The fact of the limitation on the scope of the
jurisdiction to grant judicial review which has been established by the
court's decision on this occasion is one which does not appear to have
been generally realised. That fact in turn demonstrates one further
consequence of the decision: arrangements for the exercise of the judges'
functions on these occasions willrequire to be altered, if they are to comply
with s 19(3) of the Supreme Court Act 1981, for that subsection provides
that the jurisdiction of the High Court is to be exercised by a single judge
except where a rule of court or a statute exceptionally requires it to be
exercised by a Divisional Court.
RE-OPENING PROSECUTOR'S CASE
James v South Glamorgan County Council
Although there are circumstances in which a court may exercise its
discretion to permit the prosecution to re-open its case, it has been stated
on many occasions that this is a jurisdiction which should be exercised
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