Ewing v Director of Public Prosecutions & Anor (Rev 2)

The issue in this appeal is whether a vexatious litigant, subject to a civil proceedings order under section 42 of the Senior Courts Act 1981 (the 1981 Act) requires leave pursuant to section 42(3) before he can seek permission to commence proceedings for judicial review in a criminal cause or matter.

Section 42 provides:

“Restriction of vexatious legal proceedings.

(1)

If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground—

(a)

instituted vexatious civil proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or

(b)

made vexatious applications in any civil proceedings, whether in the High Court or any inferior court, and whether instituted by him or another, or

(c)

instituted vexatious prosecutions (whether against the same person or different persons),

the court may, after hearing that person or giving him an opportunity of being heard, make a civil proceedings order, a criminal proceedings order or an all proceedings order.

(1A) In this section—

“civil proceedings order” means an order that—

(a)

no civil proceedings shall without the leave of the High Court be instituted in any court by the person against whom the order is made;

(b)

any civil proceedings instituted by him in any court before the making of the order shall not be continued by him without the leave of the High Court; and

(c)

no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court;

“criminal proceedings order” means an order that—

(a)

no information shall be laid before a justice of the peace by the person against whom the order is made without the leave of the High Court; and

(b)

no application for leave to prefer a bill of indictment shall be made by him without the leave of the High Court; and

“all proceedings order” means an order which has the combined effect of the two other orders.

(2)

An order under subsection (1) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

(3)

Leave for the institution or continuance of, or for the making of an application in, any [civil] proceedings by a person who is the subject of an order for the time being in force under subsection (1) shall not be given unless the High Court is satisfied that the proceedings or application are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings or application.

(3A) Leave for the laying of an information or for an application for leave to prefer a bill of indictment by a person who is the subject of an order for the time being in force under subsection(1) shall not be given unless the High Court is satisfied that the institution of the prosecution is not an abuse of the criminal process and that there are reasonable grounds for the institution of the prosecution by the applicant.

(4)

No appeal shall lie from a decision of the High Court refusing leave required by virtue of this section.”

The factual background to this appeal may be shortly stated. In December 1989, the appellant, Mr Terence Patrick Ewing became subject to a civil proceedings order under section 42 of the 1981 Act. In June 2006, he commenced a private prosecution by laying four informations against Mr Kenneth George Davis for offences allegedly committed by him against Mr Christopher Haywood under the Public Order Act 1986 and the Protection from Harassment Act 1997. In September 2006, a district judge sitting in the Hastings Magistrates Court held that the proceedings were an abuse of process because the offences concerned a purely private, as opposed to a public, interest and Mr Ewing had no locus standi. Mr Ewing appealed by way of case stated. Mr Ewing did not need leave under section 42(3) to bring that appeal. In July 2007, Mitting J allowed the appeal on the ground that the alleged offences were of a public nature and the informations laid were valid. He remitted the matter for a hearing.

Before any hearing took place, on 3 September 2007, the Director of Public Prosecutions decided to exercise his powers under sections 6(2) and 23 of the Prosecution of Offences Act 1985 to take over the private prosecution and discontinue it.

Mr Ewing wishes to take proceedings for judicial review of that decision. On 3 December 2007, he applied to the court for a declaration that he did not require the leave of the a High Court Judge pursuant to section 42(3) of the 1981 Act but could proceed immediately to seek permission pursuant to CPR Part 54.4 to bring judicial review proceedings.

The application was heard on 4 July 2008 by the Divisional Court comprising Moses LJ and Blake J. Mr Ewing appeared in person. The DPP did not wish to appear and the Attorney General appointed Miss Samantha Broadfoot as Advocate to the Court.

At the outset, Mr Ewing asked Moses LJ to recuse himself on the ground that, between 1984 and 1986, he had appeared as junior counsel instructed by the Treasury Solicitor against Mr Ewing, at first instance and in the Court of Appeal. Moses LJ declined to recuse himself.

On the substantive issue, Mr Ewing’s argument was that the proceedings for judicial review which he wished to bring were criminal proceedings and, because he was subject only to a civil proceedings order and not a criminal proceedings order or an all proceedings order, he did not require leave under section 42(3). The Court held that the proposed proceedings were proceedings for judicial review in a criminal cause of matter but that the application for permission was a civil proceeding which Mr Ewing could not make without section 42(3) leave.

Mr Ewing wished to appeal that decision. He was of the view, rightly in my view, that an appeal lay to this Court. From Burton J, he obtained Section 42(3) leave to commence the appeal. Then, in July 2009, Keene LJ granted him permission to appeal on the issue of whether the proceedings for permission to seek judicial review were civil or criminal proceedings. Keene LJ refused Mr Ewing’s application for permission to appeal Moses LJ’s refusal to recuse himself.

At the hearing before us, Mr Ewing appeared in person. Miss Broadfoot was again appointed as Advocate to the Court. We are grateful for her most helpful skeleton argument and her succinct oral submissions.

Mr Ewing renewed his application for permission to appeal on the recusal issue. After hearing him, we refused the application and said that reasons would be given with the judgment in the appeal.

Mr Ewing contended that, although Moses LJ was not actually biased against him, there was an appearance of bias from the history of his conduct of two cases against Mr Ewing between 1984 and 1986. In 1984, Mr Alan Moses, as he then was, was instructed by the Treasury Solicitor before Woolf J in R v Governor of HMP Cardiff, ex parte Ewing, CO/881/84. In 1985, he was again instructed by the Treasury Solicitor in Ewing v Deputy Governor of HMP Wandsworth. That case was heard in the High Court in 1985 and in the Court of Appeal in 1986. No criticism is made of counsel’s conduct on any occasion, save that, at the start of the Cardiff case, he told the judge that Mr Ewing ‘had brought many cases against public authorities’. Mr Ewing does not contend that that was untrue. However, he seems to have regarded it as implying some form of criticism. When Mr Ewing reminded Moses LJ of this remark in the course of the present proceedings, Moses LJ remembered the event and said that he had intended his remark as a compliment.

Mr Ewing reminded the Court of the test to be applied in cases in which it was alleged that some factor gave the appearance of bias. In Porter v Magill [2002] 2 AC 357, at 494H, Lord Hope of Craighead said:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

The informed observer must be taken to understand the rules and ethics by which the independent Bar operates in England and Wales. The facts to be considered here are that complaint is made about a connection which occurred well over 20 years ago. On each occasion, Mr Alan Moses was acting in a professional capacity advancing the contentions of his client. He had no personal interest in the litigation. The only alleged criticism of his conduct is the remark I have mentioned above. However Mr Ewing took that remark, it does not seem to me that an informed bystander could possibly have understood it to indicate any personal animus on counsel’s part.

I do not consider it to be arguable that an informed bystander would conclude that, by reason of that long past, professional association, there was a real possibility that Moses LJ might be biased in his conduct of the hearing in the present matter. For that reason, which was shared by other members of the Court, we refused permission to appeal on the recusal issue.

Both Mr Ewing and Miss Broadfoot urged us to consider whether we have jurisdiction to hear this appeal. They both submitted that we have. Section 18(1)(a) of the 1981 Act provides that no appeal shall lie from any judgment of the High Court in ‘a criminal cause or matter’. By Section 1(1) of the Administration of Justice Act 1960, as amended, an appeal from the High Court in a ‘criminal cause or matter’ lies to the Supreme Court. Both Mr Ewing and Miss Broadfoot submitted that, although the decision which it is sought to have reviewed is a decision in a criminal cause or matter, the decision which is presently under appeal (namely the decision of the Divisional Court to the effect that Mr Ewing needs section 42(3) leave before commencing his application to bring judicial review) was made in proceedings which are collateral to the main proceedings which are not yet begun. These collateral proceedings are civil proceedings and appeal lies to this Court.

In my view that submission is plainly right. Proceedings for a declaration that Mr Ewing does not need section 42(3) leave before he applies for permission to bring judicial review proceedings under CPR 54.4 cannot in my judgment be proceedings in a criminal cause or matter. They would not be proceedings in a criminal cause or matter even if this Court were to hold, as Mr Ewing contends is the case, that proceedings for judicial review in a criminal cause or matter were themselves criminal proceedings within the meaning of section 42. The present proceedings are collateral to such proceedings and do not fall within section 1(1) of the Administration of Justice Act 1960. The appeal from the decision of the Divisional Court lies to this Court.

Mr Ewing has submitted three documents in which his contentions are set out in detail. These documents cover a great number of points many of which were not pursued orally and would in any even be unarguable. I do not propose to lengthen this judgment by dealing with all Mr Ewing’s arguments. I will deal with those which go to the heart of the matter.

His first submission is that the judicial review proceedings which he wishes to bring are criminal proceedings and are not caught by the civil proceedings order against him. The argument is that the decision of which he seeks review was taken in the course of criminal proceedings. Therefore, judicial review of that decision is judicial review in a criminal cause or matter. Therefore such judicial review is itself a criminal proceeding. He cited a large number of authorities which he contended support that proposition. His conclusion is that section 42(3) leave is not required.

In his first written argument, he appeared to accept that an application for permission to apply for judicial review of a decision taken in the course of civil proceedings is itself a civil proceeding. He referred to R v Highbury Corner Magistrates Court ex parte Ewing [1991] 1 WLR 388 as authority for that proposition. In that case, Mr Ewing wished to bring judicial review proceedings of the issue a summons relating to his liability for community charge. The Court of Appeal held that he required leave under section 42(3) before seeking leave to proceed. In his first written argument, Mr Ewing did not suggest that that case had been wrongly decided; indeed he appeared to accept that it was correct. But, he submitted, it must be distinguished on the facts because, in that case, the judicial review proceedings related to a decision in a civil cause or matter whereas in the present case the proposed judicial review proceedings would be judicial review in a criminal cause or matter.

In his first supplementary written argument, Mr Ewing departed from that argument and advanced a second and wider argument to the effect that judicial review proceedings (whatever they relate to) are not civil proceedings and never require section 42(3) leave. So, (contrary to his earlier concession and the holding of the Court of Appeal in the Highbury Corner Magistrates case) as a vexatious litigant subject to a civil proceedings order, he would not need section 42(3) leave even if he wished to bring judicial review in a civil cause or matter. He would move immediately to his application for CPR 54.4 permission.

For this contention Mr Ewing relied on a passage from the judgment of Ackner LJ in Ex parte Waldron [1986] 1 QB 824, where this Court (Ackner, Neill and Glidewell LJJ) held that a restriction on the bringing of civil or criminal proceedings imposed by section 139 of the Mental Health Act 1983 did not apply to proceedings for judicial review. In brief, Mr Ewing’s submission was that the Court had held that judicial review proceedings were not civil proceedings. That holding was of general application. This meant that the Highbury Corner Magistrates case (in which there was no reference to ex parte Waldron) had been decided per incuriam. It should not be followed.

Miss Broadfoot submitted that Mr Ewing was wrong in respect of both limbs of his argument. She accepted that the judicial review proceedings which Mr Ewing wishes to commence would be judicial review in a criminal cause or matter but submitted that an application for permission to bring judicial review and the judicial review proceedings themselves (whether in a civil or criminal cause or matter) are all civil proceedings and are caught by the civil proceedings order against Mr Ewing. She submitted that Mr Ewing had misunderstood the authorities on which he sought to rely. She drew attention to the case of R v Tottenham Magistrates Court ex parte Gleaves (unreported 18 December 1992 CO/2253/90) which she submitted is Divisional Court authority for her proposition.

As to Mr Ewing’s wider submission, Miss Broadfoot submitted that he had misunderstood the effect of the decision of the Court of Appeal in ex parte Waldron. That decision was of narrow application. The Court had held only that, when enacting section 139 of the Mental Health Act, Parliament had not intended to restrict the bringing of public law proceedings arising out of acts pursuant to the Mental Health Act but only private law proceedings. The Court had not held that, for all purposes, judicial review proceedings were not civil proceedings.

It seems to me to be logical to deal first with Mr Ewing’s second and wider submission because, if that is correct, the first does not arise. This is the contention based on ex parte Waldron that proceedings for judicial review are not civil proceedings at all and section 42(3) leave is never required.

In ex parte Waldron, the appellant had been compulsorily admitted to a mental hospital pursuant to section 3 of the Mental Health Act 1983. She wished to take judicial review proceedings to contend that her admission was unlawful. At first instance, the judge ruled that her application for judicial review was a civil proceeding and was barred by section 139 of that Act. Section 139 provided:

“(1)

No person shall be liable, whether on the ground of any want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act … unless the act was done in bad faith or without reasonable care. (2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court… . ”

On appeal, this Court held that, in the context of section 139, the term ‘civil proceedings’ did not cover proceedings for judicial review (or indeed any public law proceedings) but were intended to restrict the bringing of private law claims to those based on bad faith or lack of reasonable care. The Court was of the view that, unless the claimant could bring judicial review proceedings, there would be no way in which she could challenge the legality of her admission. Parliament could not have intended that consequence and, if it had, clear words would have been required.

The high point of Mr Ewing’s argument is the citation of a short passage from the judgment of Ackner LJ at page 845 C-D:

“In my judgment the words of section 139 do not provide the clear and explicit words that are necessary to exclude the jurisdiction of the court to grant the remedy of certiorari. On the contrary, the words “civil proceedings”, unless specially defined, are apt only to cover civil suits involving claims in private law proceedings. The words are not apt to include proceedings for judicial review.”

From that passage and in particular from the last two sentences, Mr Ewing derives the proposition that proceedings for judicial review are not civil proceedings. I am afraid that he has taken the passage out of context. When the judgment is read as a whole, it is clear that Ackner LJ construed the section as providing protection for a potential defendant (usually a doctor who had to make decisions under the provisions of the Act) against harassment by a private law claim but as not preventing the bringing of public law challenges to his decisions. In short, he was not saying that proceedings for judicial review were not civil proceedings. He was saying that, in the context of section 139, the term ‘civil proceedings’ referred only to private law actions and not public law proceedings.

In my judgment, Mr Ewing’s argument based on ex parte Waldron is fundamentally flawed. He has misunderstood Ackner LJ’s words by taking them out of context. However, my judgment on this issue is not important because the point has already been decided by the Court of Appeal (Sir Thomas Bingham MR, Stuart-Smith and Leggatt LJJ) in Ex parte Ewing (No 2) [1994] 1 WLR 1553. In that case, Mr Ewing wished to take proceedings for judicial review of certain decisions of the Legal Aid Board. He applied for leave under section 42(3) of the 1981 Act and (save in respect of one application) was refused. He sought to renew his unsuccessful applications to the Court of Appeal. The Court held that it had no jurisdiction to hear a renewed application because section 42(4) entrusted exclusive jurisdiction to grant or refuse leave to the High Court. However, Mr Ewing raised the preliminary point that section 42(3) leave was not necessary at all before he applied for leave to move for judicial review because proceedings for judicial review were not civil proceedings and therefore not covered by the section 42 order against him. He relied on ex parte Waldron. He argued that any doubt about what proceedings were comprised within the expression ‘civil proceedings’ should be resolved in favour of the litigant. The Court rejected his arguments. After reciting Mr Ewing’s submission (including his contention that the Court of Appeal had decided the Highbury Corner Magistrates case per incuriam), Sir Thomas Bingham MR, giving the judgment of the court said, at page 1558G:

“Under the present legislation the court may make a “civil proceedings order” (as it did in this case) or a “criminal proceedings order” or an “all proceedings order”, this last having the combined effect of the other two orders. The principle of construction for which Mr Ewing contends is sound. But there is no ambiguity or lacuna in the present section and it seems clear to us that the draftsman intended all court proceedings to be comprised under heading of either civil or criminal proceedings. He intended “all proceedings” to be just that, and cannot have intended to leave a well defined class of proceedings uncovered.

Ex parte Waldron [1986] QB 824 concerned section 139 of the Mental Health Act 1983. The issue was whether that section precluded a mental patient from applying for leave to move for judicial review. The Court of Appeal held that it did not.

Mr Ewing submits, quite correctly, that there are strong similarities between the language of section 139 and that of section 42 and he relies strongly on the court’s conclusion that “civil proceedings” did not cover applications for judicial review. Ackner LJ concluded that Parliament had not intended to bar the court’s supervisory jurisdiction “because, had it done so, there would indeed have been no remedy to quash a compulsory admission to hospital made a result of a reasonable misconstruction of a public official’s powers” and that this “would have disclosed a serious inadequacy in the power of the courts to protect the citizen from an actual or potential loss of liberty arising out of a serious error of law:” see [1986] QB 824 at 846G.

….

The background and object of section 139 of the Act of 1983 and section 42 of the Act of 1981 are, however, so very different that we see no reason to conclude that Parliament intended the same result to follow in each case. …. But in the ordinary case, we can see no reason why Parliament should not have intended a vexatious litigant seeking judicial review to obtain leave under section 42(3) as well as leave to move.

…

Mr Ewing is correct in submitting that the Court of Appeal in Ex parte Ewing [1991] 1 WLR 388 (that is the Highbury Corner Magistrates case) was not referred to Ex parte Waldron [1986] QB 824 of which he was then unaware. But we do not think reference to that case would have altered the court’s decision. In our view the manifest purposes of section 42 compelled the court to reach the conclusion it did.”

The conclusion in the passage I have cited is plainly part of the ratio decidendi of the judgment and is therefore binding on us. The Court has held that in the context of section 42 of the 1981 Act, (unlike the context of section 139 of the Mental Health Act 1983), the expression “civil proceedings” was plainly intended to include proceedings for judicial review. For that reason, Mr Ewing’s wider argument is untenable.

I turn to Mr Ewing’s first and narrower argument. It is that, even accepting that the Highbury Corner Magistrates case is correctly decided and that the proceedings for judicial review (and also those in ex parte Ewing No 2) were indeed civil proceedings, those cases are to be distinguished from the present. In those cases, the underlying decisions of which review was sought were civil causes or matters; in the present case, the decision of the Director of Public Prosecutions to discontinue the proceedings in the Hastings Magistrates court is a decision in criminal proceedings and the judicial review presently sought is therefore judicial review in a criminal cause or matter.

As I have said, Miss Broadfoot accepted that the judicial review presently sought would be judicial review in a criminal cause or matter. That is plainly right. Mr Ewing then submitted that, because he is seeking judicial review in a criminal cause or matter, it follows that the proceedings themselves are criminal proceedings. He says that, if an appeal by way of case stated from the decision of a magistrate to quash an information is a criminal proceeding, there is no logical reason why judicial review of the Director’s decision to discontinue criminal proceedings should not be. Also, he submitted that, if judicial review proceedings in a criminal cause or matter are to be classed as civil proceedings, they must be criminal and civil proceedings at the same time. That, he said, cannot be right.

Mr Ewing drew our attention to a large number of authorities, including but not limited to R v Blandford Magistrates Court ex parte Pamment [1990] 1 WLR 1490, R v Tottenham JJ ex parte Ewing (1986) Supreme Court Library transcript 86/752, R (Mehmet) v Clerk to the Justices of Miskin Cynon Valley and Merthyr Tydfil Petty Sessional Division [2002] EWCA Civ 1248 and Cuochi v Governor of Brixton Prison and Another [1997] 1 WLR 1346. I do not propose to cite from any of these cases. In each of them the issue before the court was whether or not the judicial review in question was judicial review in a criminal cause or matter. The issue mattered because it determined the route of appeal which would follow the initial decision. The cases were not concerned with the question in issue here, namely whether an application for permission to proceed with judicial review and/or the judicial review proceedings themselves are civil proceedings even where the judicial review in question will be judicial review in a criminal cause or matter. Thus the authorities Mr Ewing relied on are of no assistance one way or the other on the issue which has to be determined here.

In the court below, Moses LJ and Blake J confined their decision to the narrow question of whether an application under CPR 54.4 for permission to bring judicial review proceedings in a criminal cause or matter is itself a civil or criminal proceeding. They answered that it was a civil proceeding. In Gleaves, a similar question arose but the Divisional Court chose to deal with the matter more broadly and considered whether the judicial review proceedings themselves were civil or criminal proceedings. The court (Evans LJ and Otton J) held that both the application for leave to proceed and the substantive proceedings for judicial review in a criminal cause or matter were civil proceedings.

I propose to start with the broader question because if judicial review proceedings in a criminal cause or matter are civil proceedings it will follow inevitably that the application to begin such proceedings is also a civil proceeding and section 42(3) leave will be required.

It seems to me that in order to determine whether proceedings are criminal or civil one has to consider their nature. What happens in the proceedings? What procedure is followed? What powers are invoked? Between whom do the proceedings take place? What results are possible? This was the approach that was adopted in the case of Gleaves as the following passage from the judgment of Evans LJ shows. After stating his conclusion that all proceedings under RSC Order 53 were civil proceedings, he explained his reasoning at page 9F as follows:

“The matter can be tested in this way. So far as these proceedings are concerned, that is to say, Mr Gleaves’ application for judicial review, … there is no prosecutor and there is no defendant. Indeed, …. the intended defendant in the Magistrates Court is not necessarily a party to these proceedings.

This is an application by Mr Gleaves and the respondent is the Tottenham Magistrates Court. These are civil proceedings. Mr Gleaves seeks to invoke the powers of the civil courts admittedly for the purposes, as he sees them, of the criminal proceedings which he seeks to institute in the magistrates court but does not alter the fact in my view that he is invoking the powers of the civil court and that an application under O 53 at all its stages, even when the application relates to a criminal cause or matter, is nevertheless properly to be regarded as a civil proceeding.”

I think that approach was the correct one. In the present case, one asks what is the nature of the proposed proceedings for judicial review? The parties in the judicial review proceedings, if they take place, will be Mr Ewing and the Director of Public Prosecutions. The defendant in the criminal proceedings in Hasting Magistrates Court, (Mr Davis) will not be a party. The judicial review proceedings will be subject to the Civil Procedure Rules. The procedure to be followed will be that followed in the civil courts. There will be no charge and no possibility of conviction or acquittal. The possible outcome will be invocation of the power of the High Court to quash an unlawful decision or order; unlawful not in the sense of being criminally unlawful but in the sense of being taken in excess of jurisdiction.

It seems to me that, taking those factors into account, these proposed proceedings for judicial review in a criminal cause or matter are civil proceedings. It therefore follows that the application to bring those proceedings is itself a civil proceeding and Mr Ewing requires permission under section 42(3) before he can make such an application.

For those reasons I would dismiss this appeal.

I agree.

I also agree.