What Is the Procedure for Judicial Review of Criminal Appeals?

The criminal justice system in England and Wales provides a structured hierarchy of courts and remedies to challenge decisions made during criminal proceedings. Most appeals in criminal cases are heard by specialist appeal courts, such as the Crown Court or the Court of Appeal (Criminal Division). In certain circumstances, however, a judicial review may be sought to challenge decisions connected to criminal appeals or decisions made by public bodies where no direct appeal route is available. This article explains the procedure for judicial review in the context of criminal appeals, the difference between judicial review and standard appeals, the steps involved, time limits, and practical considerations.

Introduction to Judicial Review in Criminal Context

Judicial review is a civil procedure in which the High Court examines the lawfulness of decisions, actions, or omissions by public bodies, including courts and tribunals acting in public law contexts. It is not an appeal on the merits of the original decision; instead, it focuses on whether the decision‑maker acted lawfully, fairly and within their legal powers. 

In criminal proceedings, judicial review may be used to challenge:

• decisions of the magistrates' court or Crown Court on procedural or jurisdictional grounds;
• procedural decisions during trial or sentencing where no direct appeal is available;
• decisions by public bodies connected to prosecution or review processes (for example, prosecutorial decisions). 

Because judicial review is a supervisory remedy rather than a conventional appeal, it is subject to specific rules and considerations.

Judicial Review vs Criminal Appeal

It is important to understand the distinction between judicial review and a criminal appeal:

• Criminal appeal: A formal process in which a convicted person asks a higher court to reconsider the conviction or sentence (for example, Crown Court to Court of Appeal). These appeals are governed by the Criminal Appeal Act 1968 and Criminal Procedure Rules and are fact‑ and law‑based reviews of the substantive case. 
• Judicial review: A challenge in the High Court to the lawfulness of a decision‑making process rather than the substantive outcome. It is not a route to re‑examine evidence or retry a case. 

Judicial review may be used when no adequate alternative remedy exists, or where the issue relates to public law grounds such as procedural fairness, irrationality or jurisdictional error.

When Judicial Review Can Be Used in Criminal Cases

Judicial review can arise in several criminal contexts:

1. Challenges to Magistrates' or Crown Court Decisions

A defendant (or sometimes a prosecutor) may seek judicial review of certain decisions made in lower courts when errors of law or excess of jurisdiction are alleged. For example, if a court acted beyond its powers or breached natural justice, judicial review may be available. 

The High Court's Administrative Court has supervisory jurisdiction over magistrates' courts and, in limited circumstances, Crown Court decisions under section 29 of the Senior Courts Act 1981. 

2. Prosecutorial Decisions by Public Bodies

Judicial review may challenge decisions of the Crown Prosecution Service (CPS) relating to prosecution policy or decisions not to prosecute where no statutory appeal exists. This is separate from criminal appeals and focuses on the lawfulness of prosecutorial decision‑making. 

3. Decisions Connected to Appeal Procedures

Where a party is denied permission to bring a criminal appeal and no direct appeal remedy is available, judicial review may be attempted in narrow circumstances to challenge the refusal of permission on public law grounds. However, this is exceptional and will only succeed where there is a clear procedural or jurisdictional error rather than a disagreement with the substantive merits of the appeal. 

Step‑by‑Step Procedure for Judicial Review

Step 1: Identify the Decision to Challenge

The starting point is to determine whether the decision you want to challenge is appropriate for judicial review. This usually involves:

• confirming there is no adequate alternative remedy (for example, a direct appeal route); and
• ensuring the issue genuinely involves public law grounds (illegality, irrationality, procedural unfairness, excess of power).

Step 2: Pre‑Action Protocol and Letter Before Claim

Before issuing a judicial review claim, claimants normally must follow the Pre‑Action Protocol for Judicial Review. This involves sending a letter before claim to the respondent detailing the decision being challenged, the grounds for review, and what remedy is sought.

Following the protocol can demonstrate reasonableness in the eyes of the court and may reduce the risk of adverse cost orders.

Step 3: File the Claim Form and Supporting Evidence

To start proceedings in the Administrative Court (part of the High Court), the claimant must:

1. Prepare and file Form N461 (the judicial review claim form).
2. Prepare a supporting statement of facts describing the decision and legal grounds for review.
3. Include any relevant evidence on affidavit (written evidence sworn for the purposes of the case).

All documents must be filed within strict time limits, usually promptly and within three months of the decision being challenged (or shorter where statute prescribes a tighter deadline). 

The respondent (often a public body or court) must be served with the claim and given an opportunity to respond.

Step 4: Permission (Leave) Stage

Before the High Court considers the substantive merits, the claimant must obtain permission (leave) to pursue the judicial review.

• Permission is usually decided on paper based on the written documents.
• If permission is refused on the papers, a claimant may request an oral hearing to argue for permission.
• Permission may be granted if the claimant has sufficient interest and the case has arguable merit on public law grounds.

Without permission, the claim cannot proceed to a full hearing.

Step 5: Substantive Hearing

If leave is granted, the case proceeds to a substantive hearing before a High Court judge (or a Divisional Court in more complex cases). At this hearing:

• Both sides make legal submissions.
• The court reviews whether the decision was lawful and within the powers of the decision‑maker.
• The court does not re‑weigh evidence as an appeal court would; it focuses on legality and fairness.

Possible outcomes include:

• Quashing order (nullifies the original decision);
• Mandatory order (requires the respondent to take a specific action);
• Prohibiting order (prevents the respondent from acting in a certain way).

Courts may also make declarations about the legal position.

Time Limits and Standing

Time Limits

Judicial review actions must be initiated promptly and, in most cases, within three months of the decision being challenged. Courts have discretion to treat later applications as out of time if they deem the delay unreasonable. 

Some public law decisions have shorter statutory deadlines, so claimants should check the specific regime governing the decision in question.

Standing (Sufficient Interest)

Claimants must demonstrate a sufficient interest (standing) in the matter. This means they are directly affected by the decision sufficiently to justify the court's intervention. 

Judicial Review and Criminal Appeals

In the context of criminal appeals, judicial review is not a substitute for a normal appeal to the Crown Court or Court of Appeal. Instead, it is reserved for reviewing procedural or public law aspects where no alternative appeal mechanism is available. For example:

• a refusal to allow a statutory appeal due to procedural error;
• irregularities in how appeal permissions were handled;
• decisions by prosecuting authorities impacting appeal rights or related public law issues.

The courts will not use judicial review to re‑open factual findings or mere factual disagreements with appeal outcomes.

Practical Considerations and Risks

Costs: Judicial review litigation can be expensive. If you lose, you may be ordered to pay the respondent's legal costs.

Remedies: Even if successful, the court may only quash a decision and send it back for reconsideration. It may not overturn a conviction or sentence directly.

Alternative routes: Where available, direct appeals (for example to the Crown Court or Court of Appeal) are often more appropriate for challenging conviction, sentence or substantive errors.

CCRC referrals: Where normal appeal rights are exhausted, the Criminal Cases Review Commission (CCRC) can investigate and refer cases back to the Court of Appeal if there is a real possibility the court will overturn the conviction or reduce sentence. 

Common Questions

Can a defendant use judicial review instead of appeal?
No. Judicial review is not a substitute for an appeal against conviction or sentence. It is available only for public law challenges where no other remedy exists.

Is judicial review automatic on appeal refusal?
No. Permission must be obtained, and the grounds must relate to procedural fairness or legality rather than substantive disagreement with the decision.

Does judicial review examine evidence afresh?
No. It focuses on whether the decision‑maker acted lawfully and within jurisdiction. It does not reassess factual findings like an appeal court.

Key Takeaways

The procedure for judicial review in criminal appeals in England and Wales involves challenging the legality or procedural fairness of decisions where no direct appeal route is available or where decisions by public bodies impact criminal appeal rights. Judicial review is initiated in the High Court's Administrative Court and requires strict compliance with procedural rules, time limits and public law grounds. Unlike conventional appeals, judicial review does not reconsider factual evidence and is focused on ensuring decisions were lawful and fair. Those seeking judicial review must identify the proper decision to challenge, follow pre‑action protocols, file the correct forms, secure permission, and make persuasive legal arguments at a substantive hearing. Remedies usually involve quashing the impugned decision or directing reconsideration rather than directly overturning convictions or sentences.