R v The Provincial Court of the Church in Wales and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LATHAM |
| Judgment Date | 16 October 1998 |
| Judgment citation (vLex) | [1998] EWHC J1016-2 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 October 1998 |
| Docket Number | CO/2880/98 |
[1998] EWHC J1016-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Mr Justice Latham
CO/2880/98
MR M BELOFF QC & MISS M DEMETRIOU (Instructed by Gills, Southall, Middlesex UB2 4AJ) appeared on behalf of the Applicant.
MR N PLEMING QC & MISS A FOSTER & MR G LITTLE (Instructed by Swayne Johnson & Wight, Denbigh, Denbighshire LL16 3PA) appeared on behalf of the Respondent.
PROCEEDINGS
For this application for leave to apply for Judicial Review I appear with my learned friend Miss Demetriou.
The putative Respondent is represented by my learned friends Mr Pleming, Miss Foster and Mr Little.
This is an application for leave to apply for Judicial Review in respect of two decisions, the first being a judgment of a Provincial Court of the Church of Wales on 1st November last year which found the Applicant guilty of three charges of misconduct. To summarise it related to adultery, lying and disobeying the lawful order of the Bishop, recommended among other sanctions that have been imposed.
Secondly in consequential judgment of the same court, 7th May this year, refusing the Applicant leave to appeal to the Supreme Court of the Church in Wales.
It is the case of the Applicant (who continues to protest his innocence of the charges made against him) that he is a victim of a miscarriage of justice. He so asserts by reference to three named propositions. Firstly, that the standard of proof that was required by the Provincial Court for the allegation against him was set too low; secondly, that in any event the punishment that was imposed upon him was disproportionate to any offence that was said to have been proven; thirdly; that the Bishop of Bangor, who both prosecuted and punished him, by so doing violated a fundamental rule of natural justice that no-one can be a judge in their own cause.
It is for those reasons that he seeks to engage the supervisory jurisdiction of this court to remedy the injustice he has sustained.
If your Lordship had the opportunity to see the outline submissions filed on behalf of both parties, your Lordship will note that we set out in the second part of our first paragraph the four issues upon which, if it is convenient to my Lord, we propose to address the court.
Could I just ask this of Mr Pleming: it does not seem to me from reading your skeleton argument that you are seeking to raise an issue of delay, is that right?
My Lord, we did not concede delay. I had not appreciated the time that the original decision had been the subject of challenge at the time. My learned friend has pointed out to me that there was a form 86A served.
In relation to the first, that is the November 1997 decision.
In effect this is not a new application. This is a renewed, amended application, unless I have misunderstood the rules. Perhaps I could come back to that point later.
I just wanted to know whether we are going to deal with the substance or technicality, that is all.
Substance.
My Lord, I also was under a marginal misapprehension, but the position is (as my learned friend described to you and I sought to describe to him) that on 5th January 1998—only two months after the initial judgment—the Applicant at that stage did not have the benefit of that, appropriate legal assistance, filed a form 86A raising, it must be said in fairness to him, a substantial point that we now seek to advance on his behalf.
Latterly when leading and junior counsel were instructed they felt the form 86A might be re-fashioned in a manner more acceptable to the court. Strictly speaking if it were necessary I would apply for leave to amend, but I suspect that Mr Pleming, who has been well aware of the nature of the case advanced against him, is not going to oppose that if that application is made.
It seems to me that the right course to take in these circumstances, rather than having two concurrent applications before the court, is for you to ask leave to withdraw the first application and to proceed on the second so that it is all within one set of proceedings.
I make that respectful request my Lord.
Mr Pleming, I would suggest that that was the right course. Have you anything to say about that?
No.
In those circumstances what I propose to do is to give you leave to withdraw the first application. We will proceed with this case on the basis of the form 86A and the second application.
Much obliged. Which of course, as you Lordship appreciates, raises the challenge to both of the decisions.
Exactly.
My Lord, before I come to address the issues may I remind my Lord this is an application for leave only. As a test, as your Lordship well knows, and indeed has espoused in an application made earlier today, a test of arguability.
My Lord, that is the obligation that reposes upon us. By the relative position the obligation that reposes upon a putative Respondent who is granted an opportunity to address the court is to deal with what I think the previous Master of the Rolls described colloquially as a "swift knock-out blow".
Yes, I think one way in which it can be expressed is that if, having heard the arguments, I am satisfied that your case is bound to fail …
Yes, that is a another way of putting it which I will readily accept.
My Lord, I make, as it were, two footnote observations only. It seems to us that the test is not dissimilar to the test that is applied in Privy Law proceedings when a defendant seeks to strike out a claim. That is the position that Mr Pleming finds himself in. Your Lordship will be well aware of recent jurisprudence that where one is involved in what is described as a developing area of the law the court should be particularly cautious about striking out matters or, in our respectful submission, by parity of reasoning refusing leave.
My Lord, the second footnote point that I make—conscious of the fact that there is one authority, as I read it, of co-ordinate jurisdiction to your Lordship—one of your Lordship's brethren appeared to take the view that the jurisdictional challenge rested on a different footing, but there is no authority, principle or logic in such distinction.
Mr Pleming has not, I do not think, sought to suggest that I should approach the argument on jurisdiction in a different way from the arguments of substance.
My Lord, I do not attack him before he has spoken, I merely make the preemptive observation that such a submission should not be entertained.
My Lord, may I then come straight to the jurisdictional issue. May I start with the observations I have just mentioned. Could I refer you to a passage in a public lecture given by the present Master of the Rolls, Lord Woolf. My Lord, if your Lordship has the bundles of authorities prepared by both sides, you will find this at tab W of our own.
My Lord, this was a lecture that Lord Woolf, as he now is, gave to the Minister of the Bar Association entitled Judicial Review: A Possible Programme for Reform [1992] PL 211.
At page 235 he deals with Scope of Judicial Review. If I may just read to your Lordship those two paragraphs:
"Another area in which it is difficult to distinguish between procedure and substance is with regard to the scope of Judicial Review. Here there has been a continuing process of development [I stress those words], and it may well be that the Law Commission would take the view that that process should be allowed to continue. On the other hand, I would encourage the Commission to provide more precise markers than exist at present. If that view is taken, then the Law Commission should make two principles clear."
Here, in our respectful submission, Lord Woolf is describing what he sees as the law as it is, although not given the sharpness of focus that he would desire.
"The first is that judicial review is a remedy of last resort, and it should not be available if there is some suitable alternative remedy. The second principle is subject to the first principle. It is that a body should be subject to judicial review if it exercises authority over another person or body in such a manner as to cause material prejudice to that person or body and, if judicial review were available, that person or body could show the decision-maker had acted lawfully.
"This would be a wide jurisdiction. It would mean that the fact that the decision-making body was exercising its powers in the world of sport or within a religious community, would not necessarily exclude the jurisdiction of the court. The jurisdiction would, however, be subject to the discretion of the court as to whether a remedy should be withheld. It would have the great benefit that if, for example, a sportsman or a rabbi were unlawfully deprived from earning his living in his chosen profession, he might have a remedy in judicial review if he was not entitled to any other form of redress. If he had another remedy, there would be no need for judicial review. If he has no other remedy, he should be able to obtain justice on judicial review. Why should a policeman be in a better position than a sportsman or a minister of religion?"
That is a call for change, is it not?
I do not so interpret it, with respect, I say it is a call for clarity. That is the way in which Lord Woolf sees the …
Yes.
My Lord, the way I put the...
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