Aru, R (On the Application Of) v The Chief Constable of Merseyside [2004] EWCA Civ 199

Case No C1/2003/1404[2004] EWCA Civ 199
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)
Venue Royal Courts of JusticeDate Friday, 30 January 2004
The Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE WALLER
LORD JUSTICE LONGMORE
LORD JUSTICE MAURICE KAY
Between
THE QUEEN ON THE APPLICATION OF CHARLIE ARUAppellant-v-
Between
THE CHIEF CONSTABLE OF MERSEYSIDERespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR LESLIE THOMAS (instructed by Jackson & Carter, Liverpool L1 8BN) appeared for AppellantMR JOHN DE BONO (instructed by Helen Mercer, Merseyside Police, Liverpool L69 1JD) appeared for Respondent

J U D G M E N T (Approved by the Court)

LORD JUSTICE WALLER:

Lord

Justice Maurice Kay will deliver the first judgment.

LORD JUSTICE MAURICE KAY:

[2]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.[3]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."
[4]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.[5]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.[6]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.[7]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 was the matter of substantive law. The writ of habeas corpus deals with the machinery of justice, and is essentially a procedural writ the object of which is to enforce a legal right."
Later, he said (at page 162):
"... If the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is 'a criminal cause or matter'. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but the effect of the order is to subject by means of the operation of English law the persons charged to a criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter..."
In Day v Grant [1987] 1 QB 972 Sir John Donaldson MR said (at 976A):
"So Lord Wright was saying that you look not at the particular order under appeal, but to the underlying proceedings in which that order was made and those are the proceedings which have to be characterised as criminal or non-criminal."
[8]It is instructive to have in mind some of the circumstances in which it has been held that the judgment at first instance was in a criminal cause or matter. In Carr vAtkins [1987] QB 963 the Court of Appeal held that an order under Schedule 1 to the Police and Criminal Evidence Act 1984 relating to excluded or special procedure material was made in a criminal cause or matter even though no proceedings had been started. In The Queen on the Prosecution of Hargraves vSteel (1876) 2 QBD 37 an order for the taxation of the defendant's costs following a failed prosecution for criminal libel was held to have been made "in a criminal cause or matter", those words appearing in section 47 of the Judicature Act 1873. It mattered not that the defendant was no longer in jeopardy.[9]Very recently in The Queen on theApplication of South West Yorkshire Mental Health NHS Trustv Bradford Crown Court [2003] EWCA Civ 1857 this court has had to consider section 18(1) of the 1981 Act in the context of a judicial review of an order made in the Crown Court consequent upon findings under the Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 that a man charged with an offence of murder was unfit to stand trial but that he had done the act charged against him as the offence. He subsequently sought to appeal to this court against an order made in judicial review proceedings on the application of the NHS Trust to whom he had been entrusted by the order of the Crown Court. His case on appellate jurisdiction was that once he had been found unfit to stand trial, the criminal proceedings had come to an end and had given way to proceedings of a protective nature which were non-punitive and without risk of a conviction. It was therefore not "a criminal cause or matter". In rejecting this contention and declining jurisdiction Pill LJ concluded that the application to the High Court had been "in a criminal cause or matter", adding (at paragraphs 34-34):
"Where proceedings are initiated in the Crown Court following an allegation of a breach of the criminal law, it appears to me that an overall view of the proceeding is appropriate and not an order by order analysis (lord Wright in Amand). That was also contemplated by Viscount Simon LC in Amand when referring to 'the nature and character of the proceedings' and by Lord Donaldson's reference to looking at the 'underlying proceedings' in which the order was made... As Lord Hoffman observed in Montgomery, Viscount Simon LC in Amand when referring to the direct outcome of proceedings being the possible punishment of the Defendant was giving an illustration relevant to the facts of that case and not an exhaustive definition of the proceedings. The Crown Court orders under consideration did not cease to be orders in 'a criminal cause or matter' because, upon the verdicts entered, the statute empowered the court to make a custodial order in the absence of a conviction. The orders were in no way collateral to the criminal proceeding which had been initiated by the making of the criminal charge. They provided a method of giving effect, in circumstances in which a conviction is not appropriate, to what had plainly been initiated as a criminal proceeding. They were not collateral to the criminal proceedings in the way that restraint and confiscation orders are."
[10]How then do these authorities assist in the taxonomy of the present case? First, it is important to keep in mind that the words used in section 18 of the 1981 Act are "criminal cause or matter" and not, say, "criminal proceedings". The words "or matter" denote a wider ambit. Secondly, although the administering of the caution put an end to the risk of prosecution and conviction in the Magistrates Court, I find it impossible to escape the conclusion that it was simply another way of disposing of a "criminal matter". On the face of it, and as found by Elias J, Mr Aru was accepting his criminality and agreeing to be cautioned as an alternative to possible prosecution and conviction. Thirdly, it is necessary to have regard to the inherent nature and consequences of a caution. As Schiemann LJ said in R v Commissioner of Police of theMetropolis ex parte Thompson [1997] 1 WLR 1519 (at page 1520): "It is a method of disposal of criminal cases outside court which is more severe in possible consequences than a warning but usually less severe in its outcome than a successful prosecution. A formal caution is not something to be regarded lightly. Records are kept of the administering of cautions. The Home Secretary has power to direct over what period of time records should be retained... We understand... that in practice a record of caution will be kept for a minimum of three years. Such a caution, while carrying no immediate disagreeable consequences for the recipient, has potential adverse consequences for him should he be accused of offending on a future occasion. He is more likely to be prosecuted for that offence and he will not be able to claim a good character before the trial court. If convicted, the existence of a prior formal caution may affect his sentence. Formal cautions are usually cited after any conviction of a juvenile. In practice they are rarely cited in cases of adult offenders but may be referred to if they are relevant to the crime under consideration." (The question of the relevance of extant cautions to the issue of good character in the context of a subsequent criminal trial was further considered by the Court of Appeal Criminal Division Martin [2000] 2 Crim App R 42). This is to be contrasted with proceedings such as those relating to an application for an anti-social behaviour order which are civil because no criminal offence need be established, no conviction or condemnation as guilty of an offence is implied, no penalty ensues (unless and until there is a subsequent breach) and the order does not go on the person's criminal record. For these reasons such orders were classified by the House of Lords in Clingham v Royal Boroughof Kensington and Chelsea [2002] UKHL 39 as not relating to a criminal cause or matter. They are civil, their purpose is preventive and they are more akin to injunctions.[11]All this leads me to the conclusion that a caution falls on the other side of the line, and that the judgment and order of Elias J were undoubtedly made in a criminal cause or matter.[12]Mr Thomas' alternative submission produced in a supplementary skeleton argument this morning is that if the judgment of Elias J was in a criminal cause or matter and there is for all practical purposes no avenue of appeal against that judgment, then Mr Aru can invoke the Human Rights Act 1998 and the European Convention of Human Rights and Fundamental Freedoms. The suggestion is that the absence of an avenue of appeal interferes with his right to a fair trial under Article 6. The first answer to that is that Article 6 does not confer a right of appeal, although where such a right exists in domestic law Article 6 applies to it (see Emerson and Ashworth, Human Rights and Criminal Justice, chapter 17, and Lester and Pannick, Human Rights Law andPractice, paragraph 4.6.22). The second answer is that there is an avenue of appeal in domestic law. The fact that it is limited does not engage Article 6.[13]It is because Article 6 is silent on the question of appeals that the contracting states adopted the Seventh Protocol in 1984, Article 2 of which provides:
"1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal."
This provision does not avail Mr Aru. It was not incorporated into English law by the 1998 Act. Moreover, I cannot see how a caution, which can be challenged by way of an application for judicial review, can be said to give rise to even an arguable breach of the Seventh Protocol. In my judgment neither Article 6 of the Convention, nor Article 2 of the Seventh Protocol has any application to the present case.[14]In my judgment, neither section 18(1) of the Supreme Court Act nor recourse to Convention law confers on this court jurisdiction to entertain an appeal. I would dismiss the appeal from the order made by Master Venne. Because of the constraints upon any appeal to the House of Lords, it follows that the decision of Elias J is, for practical purposes, unappealable. Leaving aside the present case, in which any appeal would have faced mountainous difficulties in any event, there may well be cases where that would be regrettable. For example, where the judgment in the High Court may be afflicted by legal error, but not one raising a point of law of public importance. In such circumstances, perhaps the better course would be for amending legislation to provide an appellate route from a criminal cause or matter in the Administrative Court to the Court of Appeal Criminal Division rather than to the House of Lords or to this court. However that is for others to consider.

LORD JUSTICE LONGMORE: I agree.

LORD JUSTICE WALLER: I also agree. (Appeal dismissed; the appellant do pay the respondent's costs of the appeal, such costs to be the subject of a detailed assessment by a costs judge).

Cited in 4 later judgments