R (Aru) v Chief Constable of Merseyside Police
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,Lord Justice Maurice Kay,LORD JUSTICE MAURICE KAY,LORD JUSTICE LONGMORE |
| Judgment Date | 30 January 2004 |
| Neutral Citation | [2004] EWCA Civ 199 |
| Docket Number | C1/2003/1404 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 January 2004 |
[2004] EWCA Civ 199
Lord Justice Waller
Lord Justice Longmore
Lord Justice Maurice Kay
C1/2003/1404
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE ELIAS)
Royal Courts of Justice
The Strand
London, WC2A 2LL
MR LESLIE THOMAS (instructed by Jackson & Carter, Liverpool L1 8BN) appeared on behalf of the Appellant
MR JOHN DE BONO (instructed by Helen Mercer, Merseyside Police, Liverpool L69 1JD) appeared on behalf of the Respondent
(Approved by the Court)
Friday, 30 January 2004
Lord Justice Maurice Kay will deliver the first judgment.
In recent years there has been a growth in the number of cases in which offenders receive an official caution from the police as an alternative to prosecution for the offence in question. On 10 July 2002 Mr Charlie Aru received such a caution from the Merseyside Police in relation to an offence under section 5 of the Public Order Act 1986. By an application for judicial review he sought the quashing of the caution on the grounds that it had been imposed unlawfully and contrary to the relevant guidance on the cautioning of offenders. That guidance is contained in Home Office Circular 18/1994. The National Standards for Cautioning annexed to the Circular lay down conditions which must be met before a caution may be administered. They are (1) evidence of the offender's guilt sufficient to give a realistic prospect of conviction; (2) an admission to the offence; and (3) understanding on the part of the offender as to the significance of the caution, together with his informed consent to being cautioned. The case for Mr Aru is that he had been mistreated by police officers when they first encountered him in the street and at the police station to which they took him and that, whilst he had signed the certificate of caution stating that he fully admitted the offence and freely accepted the caution, he only did so as the result of an improper threat or inducement uttered by one of the officers at the police station. Mr Aru alleges that the officer had told him that there were two ways of dealing with the situation. He could either admit his guilt and accept a caution or he could go to court in which case he would get a criminal record. Mr Aru is a man without criminal convictions and in the circumstances he accepted the caution.
The application for judicial review was heard by Elias J sitting in the Administrative Court in Liverpool on 23 May 2003. Unusually for a case of judicial review, the proceedings included oral evidence on both sides. This is because there were substantial issues of fact as to precisely what had taken place in the street and at the police station. The learned judge resolved the conflict in favour of the police officers. He said in paragraph 33 of his judgment:
"… I am satisfied that [Mr Aru] has not shown to the requisite standard that events occurred as he maintains. I am not prepared, in the light of the documentation and the evidence I have heard, to say that these police officers did, on the balance of probability, act in the way which he indicated. Without his being able to establish that, it is common ground that this application must fail."
In this court, Mr Aru is seeking to raise grounds of appeal which focus on the findings of facts. That is never an easy task. However at this stage, we are concerned not with the merits of the application for permission to appeal but with whether this court has jurisdiction to entertain an appeal. When the appellant's notice was lodged in the Civil Appeals Office Master Venne ruled that there is no jurisdiction to enter the appeal because this is a "criminal cause or matter" within the meaning of section 18(1) (a) of the Supreme Court Act 1981. At a subsequent hearing on 6 October 2003 Simon Brown LJ granted permission to appeal Master Venne's order on the issue of jurisdiction. That is how this matter comes before the court today.
The relevant statutory provisions are brief. By section 1(1) of the Administration of Justice Act 1960 (as amended) an appeal lies from the High Court to the House of Lords in a "criminal cause or matter". There is a prerequisite of leave given by the High Court or the House of Lords which cannot be given without a certificate that a point of law of general public importance is involved and it is considered that the point is one which ought to be considered by the House of Lords (section 1(2)) . Section 18(1) of the Supreme Court Act 1981 then provides that no appeal shall lie to the Court of Appeal from any judgment of the High Court "in any criminal cause or matter". Therefore, the issue before us is whether the proposed appeal is from a judgment of the High Court "in a criminal cause or matter". If it is, this court has no jurisdiction. The consequence would be that, in a case such as this, the judgment of a High Court judge is for all practical purposes unappealable because it cannot be said that a point of law of general public importance is involved in a case which turns on its facts. The position would be the same whether the case had been heard by a single judge or by a Divisional Court at first instance.
One view of this issue might be that judicial review proceedings are civil proceedings conducted within the parameters of Part 54 of the Civil Procedure Rules and that the case is therefore a civil one rather than a criminal one. However, as the authorities make clear, that view is overly simplistic.
In Amand v Home Secretary [1943] AC 147 the House of Lords was concerned with jurisdiction in relation to an appeal in which the Divisional Court had refused an application for a writ of habeas corpus. The governing statutory provision was in the same terms as section 18(1) of the Supreme Court Act. Viscount Simon LC traced the history of the distinction between criminal and civil habeas corpus applications before concluding (at page 156):
"It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal."
That has to be seen in context. As Lord Hoffman stated in Government of the United States of America v Montgomery [2001] 1 WLR 196 (at page 202C), the second of Viscount Simon's sentences is "illustrative" and "not an exhaustive definition of such proceedings". In Amand Lord Wright said (at pages 159–160):
"The words 'cause or matter' are, in my opinion, apt to include any form of proceeding. The word 'matter' does not refer to the subject matter of the proceeding, but the proceeding itself. It is introduced to exclude any limited definition of the word 'cause'. In the present case, the immediate proceeding in which the order was made was not the cause or matter to which the section refers. The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act and the order and to deliver the Appellant to the Dutch military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. That...
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