UKCP layperson guide to Judicial Review

A right preserved under section 6(1) of the Prosecution of Offences Act (POA) 1985

A Judicial Review is described as

a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached

Judicial Reviews are not a means to appeal the outcome of a decision, only how a decision was made based on the rules of how the decision should be made.

The idea is to prevent those who have the power to make decisions from making them unlawfully or unreasonably. A simple but basic example would be if the police may make a decision not to investigate a crime simply because they do not like you. If they actually gave that as a reason, then you would win the Judicial Review for obvious reasons. It would not mean that there are other lawful reasons for not investigating the crime.

I will use a real-world example for the basis of a scenario of a police decision that is (believed) to be incorrect and would challengable by an application for Judicial Review.

Scenario.

A person posts a comment on his personal (and public) Facebook page. The comment names another man and makes a grossly offensive comment that the other man is a paedophile. The facts are 

    1. the other man is not a paedophile
    2. the person posting the comment knows what he posted was false
    3. The person knows the man has a Facebook account; and 
    4. knows the man will see his Facebook comment. 

It would appear that the comment was posted with the intent to cause distress or anxiety to the man by the grossly offensive nature of the comment. The comment is considered grossly offensive by the standards of any reasonable member of society (the reasonable person test), and therefore argued as an act of Malicious Communication.

Malicious Communications can be prosecuted by either s1 of  the Malicious Communications Act 1988 or s 127 of the Communication Act 2003 as both define an act of communicating a grossly offensive message.

The incident within this scenario was reported to the police, and they reviewed the evidence. The police agreed that the comment is grossly offensive but said it was not an offence under the Malicious Communications Act as the comment was not sent to a person and that it was only posted to Facebook. Based on their assessment, they made the decision to take no further action, NFA.

The police reasoning for this decision was that, for it to be malicious communications, it must be sent to someone, and that by only posting it on a Facebook page, even though it names a person as being a paedophile, fails to be a crime. (how abused could this be?)

The Malicious Communications Act states (I have separated out the elements needed and removed the unneeded)

 Any person who sends to another person an electronic communication or article of any description which conveys a message which is grossly offensive or information which is false and known or believed to be false by the sender or any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

The police, who are not by default legally trained (and are generally by default, uneducated), interpreted the legislation as written and only as they understood it in thier little minds, believing that the wording “any person who sends to another person” is definitive, when in fact, legislation is intended to be interpreted by those qualified to interpret it (Judges) as to the actual meaning intended by the legislation.  This can often differ from what an untrained person believes and is the case here. There is often case law and other guidance that can often be considered.

For example, the CPS, who is the prosecuting authority, gives the following guidance on this very subject.

Who a communication is sent to

The prosecution must establish that the message was sent to another person. Depending on the facts of the case, a social media communication which is merely a blog or a comment posted on a website may not suffice as sending to another. Prosecutors should consider the evidence that the communication was addressed (either by name or in terms) to a specific recipient, and how likely the specific recipient was to receive it (did they also have a Twitter or Facebook account?).

Immediately, the CPS guidance shows that the police’s reasoning was wrong, and as the decision was based on incorrect reasoning, the decision, based on the incorrect reasoning,  was wrong.

The incident could even be considered under the lesser offence within s127 of the Communications Act based on published caselaw.

In Chambers v DPP [2012] EWHC 2157, the defendant posted a message on Twitter suggesting he would blow up Teesside Airport. That was held to constitute a message sent under section 127(1)(a), even if that message may not have been accessed immediately but by a subsequent search. The Court noted that posting a message generally to Twitter, not for the attention of a specific individual or group, which was then stored electronically, was still an offence.

 

Now that the scenario is laid out, how do you start the process for this decision to be Judicially Reviewed?

As with all legal processes, there are strict rules, and the Judicial Review process is no different.

BEFORE YOU START

The decision to be reviewed must have been made within 90 days of the application for permission to seek a Judicial Review.

Yes, the application is only for permission for a Judicial Review, the Judicial Review

 

 

 

 

 

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