JUDICIAL REVIEW — Crown Court — Jurisdiction — Order made during trial remanding claimant in custody as a witness pending receipt of further evidence — Whether order matter “relating to trial on indictment” — Whether susceptible to judicial review — Criminal Procedure (Attendance of Witnesses) Act 1965, s 4(3) — Supreme Court Act 1981, s 29(3)

R (TH) v Crown Court at Wood Green

QBD: Auld LJ and Wilkie J: 31 October 2006

An order made in the course of a trial by the trial judge remanding a person in custody as a witness pending receipt of further evidence was a matter relating to trial on indictment for the purposes of s 29(3) of the Supreme Court Act 1981 and therefore not susceptible to judicial review. The Human Rights Act 1998 did not require s 29(3) to be read in any other way.

The Divisional Court so held when giving their reasons for dismissing, on 9 October 2006, the claim for judicial review by the claimant, TH, of the decision of Judge Ansell on 10 May 2006 to remand him in custody pursuant to s 4(3) of the Criminal Procedure (Attendance of Witnesses) Act 1965.

The Supreme Court Act 1981 provided by s 29(3): “In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make order of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.”

The claimant, after his cross-examination and re-examination as a hostile witness in a trial on indictment, was remanded in custody by the trial judge under s 4(3) of the 1965 Act on grounds that he remained a potential witness in the case. By way of his re-amended claim form the claimant sought, inter alia, a declaration that part of his detention was unlawful and damages in respect of that detention pursuant to s 8 of the Human Rights Act 1998. During the course of the hearing the claimant formed a claim pursuant to CPR Pt 7 for damages under s 8 of the 1998 Act and served it on the Secretary of State as defendant.

WILKIE J, giving the judgment of the court, said that the Secretary of State had been joined as a second interested party and had relied on the provisions of s 29(3) of the 1981 Act in raising afresh the question of the jurisdiction of the Divisional Court to entertain a claim for judicial review. A decision taken in the course of the trial by the trial judge to detain the claimant as a witness pending receipt of further evidence was a matter relating to trial on indictment and was one which was made in the course of such a trial. There was no need under s 3 of the 1998 Act to give s 29(3) of the 1981 Act anything other than its ordinary meaning. The court was persuaded by the Secretary of State’s submissions that the claimant was not deprived of remedies by virtue of the Divisional Court not having jurisdiction pursuant to s 29(3) of the 1981 Act. The claimant had remedies both in terms of obtaining his release by way of habeas corpus and by way of a claim for damages brought in the High Court. Time was abridged in respect of all procedural matters and the Part 7 claim was considered and dismissed by the court sitting as part of the Administrative Court.

Appearances: Stephen Field (Needham Poulier & Partners) for the claimant; Tim Ward ( Treasury Solicitors) for the Secretary of State for Constitutional Affairs; Simon Wild (Crown Prosecution Service) for the Crown Prosecution Service. The defendant did not appear and was not represented.

Reported by: Elanor Dymott, solicitor