WHAT IS HAPPENING TO APPLICATIONS FOR JUDICIAL REVIEW?
| Date | 01 July 1987 |
| Author | Maurice Sunkin |
| Published date | 01 July 1987 |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb01720.x |
WHAT IS HAPPENING TO APPLICATIONS FOR
JUDICIAL REVIEW?
DESPITE the importance
of
judicial review within academic
scholarship and the recent developments in the area, surprisingly
little research has been done on the way the judicial review
procedure functions in practice.’ This paper begins to fill this gap.
It reports the results
of
an empirical study
of
the judicial review
caseload during 1981-1986 and provides more detailed data than
has hitherto been available on the trends in the use
of
judicial
review, the subject areas litigated, the operation of the leave filter,
delays, and legal representation.*
The role
of
the courts in government is inherently controversial
and will remain
so
whatever the statistics say. The purpose
of
this
report is to provide an opportunity for us (whether as academics,
practitioners, judges, administrators or reformers) to reassess our
assumptions and attitudes in the light
of
empirical data in the hope
that this will encourage a better informed and more focussed
debate on the role and operation
of
the judicial review process.
CONCERNS
AND
METHODS
We analysed the civil judicial review caseload with
a
view to
answering the following general questions:
Is
judicial review a
growth industry? Who
is
using judicial review? In which areas
of
governmental activity? Against what agencies? With what degrees
of
success? And, how efficient is the Order
53
procedure?
The data examined was drawn from the records kept by the
Crown Office at the Law Courts in the Strand, London. Since at
present there is no single and comprehensive record detailing
applications for judicial review, the statistics have been compiled
from two primary sources: the lawyers’ intake book and the Crown
Office Register. Both are day to day records
of
Crown Office
proceedings. The use made of the Register will be discussed
shortly. The lawyers’ intake book has been kept by the lawyers in
the Crown
Office
since early 1981 and provides them with a
succinct record
of
Crown Office
proceeding^.^
The entries include a
During the
1970s
an empirical study was undertaken by the Legal Research Unit
of
Bedford College, London. Although the results were made available to the Law
Commission they were not written up for publication.
*
The Official Statistics indicate overall caseload but are insufficiently detailed
to
give
any more than a very general, and often misleading impression, of what is happening.
See for example the criticisms made by
C.
Harlow
&
R. Rawlings,
Law
&
Adminislrafion
(1984)
at p.261.
The lawyers in the Crown Office are employed by the Lord Chancellor’s Department.
Their function appears to be to give advice and assistance to the administrative staff and
general support to the ‘udges. In some situations this extends to checking authorities and
very limited research. (Their role could develop into something resembling the American
judge’s clerk, although this is a long way
off
at present.)
432
JULY
19871
WHAT
IS
HAPPENING
TO
APPLICATIONS
433
brief summary
of
the subject matter
of
applications, the names
of
the parties, the procedure by which leave is sought and the decision
on leave. This was the source for compiling the annual caseload
figures and producing the tables on general trends. It was also the
principal source for identifying the subject matter
of
applications.
Collation
of
detailed information on substantive areas challenged,
and issues raised by applicants for judicial review, was dependent
on the quality
of
the entries made. This is erratic and apparently
depends on the style, approach and inclination
of
the compiler.
For example, although immigration matters were easily identified,
when we attempted to compile a detailed profile
of
the particular
immigration decisions challenged, we found (to take one type
of
case) that applications challenging refusals of entry were often
simply referred to as “refusal
of
entry,’’ or “refusal
of
entry
clearance.” At other times more detail was given. An illustration
of
these variations may be taken from the 1985 records. During the
first six months
of
1985 only 12 visitor applications were specifically
referred to as “genuine visitor” applications, whereas during the
second half
of
the year there were
181
“genuine visitor” applications
specifically identified. Although the numbers
of
“genuine visitor”
cases had been rapidly increasing over the period, the disparity
between the first half and second half
of
1985 was probably, at
least in part, explained by changes
of
compiler. In view
of
the
growing interest in particular types of judicial review it is perhaps
unfortunate that little attempt was made, in this record at least, to
facilitate routine collection
of
information on the precise substantive
issues raised on judicial
review^.^
Whilst the lawyers’ intake book revealed the parties, subject
areas and decisions on leave, it did not provide the dates of various
hearings, nor details such as the judges and legal representatives,
if
any. Nor did it give a reliable picture of the progress
of
applications
once leave had been granted. The Crown Office Register (a day to
day record
of
Crown Office matters maintained by the administrative
staff) was used to examine the procedure and obtain information
on progress
of
applications.
For
this more detailed examination we
limited our data source to three six-monthly samples taken during
1983, 1984 and 1985. In 1984 and 1985 we used the first six months
and in 1983 we used the first and third quarters. We did not
anticipate obvious seasonal variations in caseload, but decided to
vary the sample slightly in 1983 to take account of any there might
be.
Although the Crown Office has become more intercstcd in the areas
of
litigation and
is now collating data on the Crown Office list under the following heads: judicial reviews;
civil, homeless persons, immigration; criminal; town
&
country planning; case stated:
criminal
&
civil; miscellaneous appeals; Solicitors Act; habeas corpus: criminal, civil,
unelassifed; vexatious litigants; extradition; in person. During
1986
the lawyers have
started
to
keep records
of
“live” applications on a card index under more detailed sub-
headings.
434
THE
MODERN
LAW
REVIEW
[Vol.
50
The focus
of
the research was
civil
judicial reviews dealing with
administrative law matters. In view of the width and diversity
of
litigation handled by the Crown Office we had to exclude several
areas
of
potential interest including applications for judicial review
in criminal matters and appeals under the Town
&
Country
Planning Act 1971. Because the lines between criminal and civil,5
or administrative and non-administrative law are not always easy to
draw with perfect accuracy, for completeness the data includes
magistrates’ court matters involving non-payment
of
rates and
family issues. Applications for habeas corpus in the context
of
immigration law were also collated and are referred to where
appropriate.
The data was collected and analysed during 1986.6 A brief
follow-up study was made during the last week
of
the 1986
Michaelmas Term and the report includes material
on
the 1986
caseload. This provides some insights into the immediate effects
of
the decisions
of
the Court
of
Appeal in
R.
v.
Secretary
of
State,
ex
p.
Swati
and the House of Lords in
Puhlhofer
v.
London Borough
of
Hillingdon
.’
A systematic examination
of
individual casefiles, although
of
potential interest, was beyond the scope and resources
of
this
project and was not attempted. Neither was an analysis
of
the
burgeoning judicial review jurisprudence, a large proportion
of
which remains in unreported transcripts.*
The report
is
presented in two parts. The first
looks
at general
trends and the second at aspects
of
the procedure, in particular the
leave hurdle.
For
an explanation
of
the distinction between criminal and civil
in
this context see
We analysed the data usin
D
Base
11.
I19861
1
All
E.R.
717
and719861
1
All
E.R.
467 respectively.
Since 1983 unreported Crown Office list transcripts have been available on Lexis.
Aldous
&
Alder,
Applications
for
Judicial Review Law and Pracfice
(1985) p.135.
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