10.2 Rectifying Mistakes, Case Stated & Judicial Review
Key Takeaways
- Section 142 of the Magistrates' Courts Act 1980 allows a magistrates' court to vary or rescind a sentence, and to direct a rehearing before different justices where a defendant was convicted in their absence or pleaded not guilty, if it is in the interests of justice.
- An application to state a case must be made to the magistrates' court within 21 days of the decision, on the ground that it was wrong in law or in excess of jurisdiction.
- Applying to state a case extinguishes any right of appeal to the Crown Court under section 111(4) MCA 1980, so the choice of route must be made deliberately.
- Judicial review lies for illegality, irrationality and procedural impropriety, must be brought promptly and in any event within three months, and is the appropriate route where the complaint concerns fairness or bias rather than a settled point of law.
- The Divisional Court's powers on case stated under section 28A of the Senior Courts Act 1981 include reversing, affirming or amending the decision and remitting the case with its opinion.
10.2 Rectifying Mistakes, Case Stated & Judicial Review
An appeal to the Crown Court is a rehearing on the facts. It is not the right remedy for an error of law, an excess of jurisdiction, or a procedural unfairness. Three other routes exist, and choosing between them is itself an examinable skill.
1. Reopening in the magistrates' court — s.142 MCA 1980
The magistrates' court can correct its own mistakes. Section 142 provides two powers:
| Power | Provision | Scope |
|---|---|---|
| Vary or rescind a sentence or other order | s.142(1) | Where it appears to be in the interests of justice to do so |
| Direct a rehearing of the case (before different justices) | s.142(2) | Where a person is convicted and either pleaded not guilty or was convicted in their absence, and it appears in the interests of justice |
Key features:
- The 28-day time limit that formerly applied has been repealed; there is now no time limit, though delay bears on the interests of justice;
- The power is not available where the Crown Court or the Court of Appeal has determined an appeal in the case;
- Section 142 is often called the "slip rule", but it is wider than that: it can correct an unlawful sentence, a sentence passed on a false factual basis, or a conviction recorded after a plea that was not properly taken;
- It is not a substitute for an appeal on the merits, and justices should not use it simply because they have changed their minds.
Separately, a defendant convicted in absence who did not know of the proceedings may serve a statutory declaration under s.14 MCA 1980 within 21 days of learning of them, which renders the proceedings void from the summons onwards.
2. Appeal by way of case stated — s.111 MCA 1980
Who may apply. Either the prosecution or the defence — one of the two features that make case stated attractive to the Crown, which has no right of appeal against acquittal to the Crown Court.
Grounds. That the decision was wrong in law or in excess of jurisdiction.
Procedure.
- Apply in writing to the magistrates' court within 21 days of the decision (or of sentence, where the application relates to conviction and sentence is adjourned). The time limit is strict and cannot be extended.
- The justices (or the clerk on their behalf) draft a case setting out the findings of fact, the contentions of the parties, the decision and the question of law for the High Court's opinion. Parties may make representations on the draft.
- The justices may refuse to state a case if they consider the application frivolous, but must give a certificate saying so, which itself may be challenged by judicial review; they may not refuse where the application is made by or under the direction of the Attorney General.
- The appeal is heard by a Divisional Court of the King's Bench Division, on the facts found in the case — no evidence is heard.
Powers of the Divisional Court — s.28A Senior Courts Act 1981. The court may reverse, affirm or amend the decision, or remit the matter to the justices with its opinion, and may make such other order as it thinks fit, including as to costs.
The trap in s.111(4). Applying to state a case extinguishes any right of appeal to the Crown Court. A defendant who wants a rehearing on the facts must not apply for a case to be stated first.
3. Judicial review
Judicial review lies in the Administrative Court against the magistrates' court on the ordinary public law grounds:
- Illegality — acting outside jurisdiction, misdirecting itself in law, taking into account irrelevant considerations;
- Irrationality — a decision no reasonable bench could have reached;
- Procedural impropriety — breach of natural justice, apparent bias, failure to give reasons, refusal of an adjournment that made the hearing unfair.
Procedure. Under CPR Part 54, the claim must be filed promptly and in any event within three months of the decision, and permission is required. Remedies are discretionary: a quashing order, a mandatory order, a prohibiting order, a declaration.
Choosing between case stated and judicial review
| Feature | Case stated | Judicial review |
|---|---|---|
| Best for | A settled point of law on agreed findings of fact | Fairness, bias, procedural error, or where the facts are disputed |
| Time limit | 21 days, strict | Promptly, in any event 3 months |
| Permission | Not required | Required |
| Facts | Confined to the stated case | Evidence may be filed |
| Effect on Crown Court appeal | Extinguishes it | Does not |
Where the point is purely one of law and the facts are clear, case stated is the proper route, and the courts discourage the use of judicial review to circumvent the 21-day limit. Where the complaint is that the hearing was unfair, judicial review is normally correct.
4. Challenging the Crown Court in its appellate capacity
The Crown Court's decision on an appeal from the magistrates' court, and its decisions on committals for sentence, may themselves be challenged in the High Court by case stated (Senior Courts Act 1981, s.28) or by judicial review.
The critical limit is s.29(3) of the Senior Courts Act 1981: the High Court has no jurisdiction in relation to matters relating to trial on indictment. So a ruling made in the course of a Crown Court trial cannot be judicially reviewed; the route is an appeal to the Court of Appeal after conviction, or (for the prosecution) a s.58 CJA 2003 appeal against a terminating ruling. Distinguishing a decision "relating to trial on indictment" from an ancillary one is a recurring difficulty; bail decisions and legal aid decisions in the Crown Court have generally been held to be outside the exclusion, while rulings on evidence and on the conduct of the trial are within it.
Exam traps in this section
- s.142 has no time limit — the 28-day limit was repealed — but it cannot be used once an appeal has been determined.
- Case stated is available to both parties, which is why it is the prosecution's route against an acquittal on a point of law.
- 21 days, strict and unextendable, for case stated; promptly / 3 months and permission for judicial review.
- s.111(4): applying for a case stated kills the Crown Court appeal.
- s.29(3) SCA 1981 blocks judicial review of matters relating to trial on indictment.
The prosecution believes a bench misconstrued the statutory definition of an element of the offence and wrongly acquitted. What is the appropriate route of challenge?
A defendant convicted after a summary trial wants both to challenge the bench's construction of the statute and, if that fails, to have the facts re-heard. Counsel proposes to apply for a case stated first and to appeal to the Crown Court afterwards if unsuccessful. Advise.
During a Crown Court trial on indictment the judge makes a ruling admitting contested evidence. The defence wishes to challenge it immediately by judicial review in the Administrative Court. Is that possible?