Extent of Powers of Judicial Review
| DOI | 10.1177/002201839105500306 |
| Published date | 01 August 1991 |
| Date | 01 August 1991 |
| Subject Matter | Comment |
Journal
of
Criminal
Law
invited to count how many judges supported it in Clarence (1888)
22
QBD
23 (admittedly the point was obiter but the judges were
strong). Much remains wrong with the substantive law of rape, eg
boys under 14 cannot rape. Now is the time for reform.
Michael Jefferson
Leeds Polytechnic
EXTENT OF POWERS OF JUDICIAL REVIEW
Aconviction obtained by dishonesty on the part of the prosecution
may be quashed on judicial review. The question raised in Rv
Bolton JJ, ex pScally [1991]2 WLR 239; 155
lP
84 was whether
that process may apply with that result (1) where something less
than dishonesty is alleged; and (2) where the wrongdoing is that
of a person not directly concerned with the prosecution process.
In that case, each of the four applicants (whose applications were
considered together) was convicted of an offence of driving with
ablood-alcohol concentration in excess of the prescribed limit,
contrary to s 6(1) of the Road Traffic Act 1972 (now s 5(1) of the
Road
Traffic Act 1988). In each case, the applicant was convicted
on a plea of guilty tendered because each was faced with the
seemingly conclusive results of the analysis of a blood specimen
which showed that his blood had an excess content of alcohol.
It
was, however, later discovered that, throughout the area in
question, some of the blood sampling kits then in use in connection
with suspected cases of this offence contained medical cleansing
swabs which themselves contained alcohol. It was conceded that
the CPS was throughout ignorant of the fact that there were any
circumstances which may have had the effect of producing an
inaccurately high result. Nor were such circumstances noticed
either by the police who produced the swabs or by the doctors
who used them to take blood samples. When the facts were
discovered, the CPS very properly decided not to prosecute the
outstanding cases in which the kits had been used. What of the
cases in which they had been used and which had resulted in
conviction? When, as in this case, applications were made for
judicial review, there was a difference of opinion. The Chief
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