It is almost a year now since the Criminal Justice and Courts Bill 2014-15 (CJCA 2015) received Royal Assent on 15 February 2015. One of the changes heralded by Part 4 of the CJCA 2015 was section 84, dealing with the likelihood of a substantially different outcome for the applicant, see Legal update, Criminal Justice and Courts Bill 2014-2015 receives Royal Assent: public sector implications. That section amended section 31 of the Senior Courts Act 1981 (SCA 1981) with effect from 13 April 2015, to provide that if it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred, the court:
- Must refuse to grant relief on an application for judicial review.
- May not make an award under subsection 4 (relating to damages) on such an application.
(Section 31(2A)(a)(b), SCA 1981.)
Section 31(2B) of the SCA 1981 states that the court may disregard the requirements in section 31(2A) if it considers that it is appropriate to do so for reasons of exceptional public interest.
Since the coming into effect of these provisions, there have been a few cases dealing with these changes. One in particular, (R (Hawke) v Secretary of State for Justice  EWHC 3599 (Admin) (3 December 2015)), is of particular interest, given the comments of the judge whose attention was drawn to the provisions that had been added to section 31 of the SCA 1981 and the fact that they were relied on by the defendant to avoid any consequence of its unlawful action.
For the purpose of this blog, it is not necessary to give the full details of the facts in Hawke. It is sufficient to know that the claimants were a prisoner and his disabled wife. The prisoner’s wife was unable realistically and at proportionate cost to visit the prisoner, who had been convicted of a number of serious sexual offences, and detained in a category B prison on the Isle of Wight. The claimants brought a claim contending that the Secretary of State for Justice (SoS) had acted, and had continued to act, unlawfully by not detaining the prisoner in a prison closer to his wife’s home in Cornwall. The SoS was not prepared to transfer the prisoner, despite receiving a request for him to be moved long term to a category C prison in Exeter. In addition to claiming that the SoS’s decision was irrational and in breach of public law, the claimants contended that the refusal of the SoS to move the prisoner was in breach of the public authority’s public sector equality duty (PSED) under section 149 of the Equality Act 2010 (EqA 2010). For more information on the section 149 duty, see Practice note, PSED: general public sector equality duty under section 149 of the Equality Act 2010.
The High Court found no evidence that the government had had any real regard to the PSED when making the relevant decisions and that for this reason the SoS had failed to discharge his duties under section 149 of the EqA 2010. However, having declared that he would make a declaration to the general effect that, on the facts and in the circumstances of the case, the SoS had failed to discharge his duties under section 149 of the EqA 2010, the judge Mr Justice Holman went on to consider the impact and effect of section 31(2A) of the SCA 1981.
The impact and effect of section 31(2A) of the SCA 1981
What was interesting was that no reference had been made in the formal pleadings, the skeleton arguments of counsel or their oral submissions to the recently added provisions of section 31 of the SCA 1981. Indeed, it did not occur to the barrister instructed by the SoS that the new provisions of section 31 might be a point in the case until she was outside court considering the drafting of the order as to costs. The judge himself admitted in his decision that he had not had any occasion to consider the added provision in section 31(2A), nor had it ever been specifically drawn to his attention. For that reason, having stated that he would make the declaration the claimants sought, he reconsidered that part of the decision.
On behalf of the SoS, it was submitted that subsection (2A) was directly in point and that there were no reasons of exceptional public interest that made it appropriate for the court to disregard the sub-section’s requirements. Subsection (2A) had to be read as if it stated “must refuse to grant a declaration”. The words of subsection 31(2A)(a) are of course mandatory and completely binding upon the court. Given that Holman J had already indicated in paragraph 47 of the judgment that neither claimant had suffered any loss as a result of the SoS’s failure to discharge his section 149 duties, it was “crystal clear” that it appeared highly unlikely that the outcome for the claimants would not have been substantially different if the conduct complained of, that is the failure to have regard to the PSED, had not occurred. Therefore, the facts and circumstances of the case fell fair and square within the embargo in section 31(2A). In the judge’s view, there was nothing about the case that could be construed as “exceptional public interest”, although there was obviously significant public interest.
Having had his attention drawn to section 31(2A) of the SCA 1981, Holman J was satisfied that it applied to the case and that the exception under section 31(2B) was not established. He was therefore forbidden by statute from granting the declaration that in paragraph 47 of his judgment he had previously contemplated granting. For this reason, he dismissed the whole of the claim for judicial review.
Although the judge indicated that, as a judge sitting in the Administrative Court, it might have been thought he would have the provisions of section 31(2A) of the SCA 1981 in mind, the reality was that the pace, volume and complexity of modern legislation, combined with the fact that (like most Administrative Court judges) he sat only intermittently and not continuously in the court, meant that he had not previously had any occasion to consider the added provision. Section 31(3C)(a) of the SCA 1981 provides that the court may of its own motion consider whether the complained of flaw would have made a difference to the outcome.
However, there is a requirement that any defendant who intends to contest the application for permission on the basis that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred must set out a summary of the grounds for doing so in the acknowledgement of service (CPR 54.8(2)(a)(ia)). For more information on the amendment to the CPR rules to effect this change, see Legal update, 79th CPR update: Civil Procedure (Amendment No 2) Rules 2015 published and Practice note, Judicial review procedure: a practical guide. For a standard summary grounds of resistance, see Standard document, Judicial review: defendant’s summary grounds of resistance.