Judicial Review and Courts Act 2022
By Alec Samuels
Alec Samuels explores the changes of the new Judicial Review and Courts Act 2022
The Judicial Review and Courts Act 2022 has a number of purposes. Firstly, it seeks to stem the flow of judicial review of unmeritorious immigration cases and to expedite magisterial proceedings. It also aims to reduce the backlog largely caused by covid-19 and to conduct proceedings by electronic means so far as possible, to reduce the need for oral hearings.
In the past, a party has been able to secure a quashing order over an unlawful decision by a public body. The public body has had to start the decision process all over again. From now on, the court will be able to make a prospective or suspended quashing order, unless the public body makes appropriate redress and rectifies the error.
The government’s view is there are too many judicial review cases, having exhausted the tribunal system – up to 750 annually – with no merit and little or no prospect of success, with a 3.4 per cent success rate.
Hitherto a party to a First Tier Tribunal (FTT) who has been refused permission to appeal has tried again at an Upper Tribunal (UT_ and has been refused again, has been able then to apply to the High Court, known as the Cart Principle (R (Cart) v The Upper Tribunal  UKSC 28).
The new statute is intended to protect the system from ‘litigation attrition’ and to give judges greater protection. The judicial reviews have taken up a disproportionate amount of judicial time – 180 judge days.
In general terms, the government has felt purely political issues and policies have been taken to the courts in order to undermine or to delay those purely political policies.
Electronic justice, the automatic online conviction and sentence, has now arrived, meaning cases can proceed with absolutely no court involvement. An electronic notice may be served on a defendant aged 18 or over indicating the offence and the punishment decided by the single magistrate.
Conviction, fine, penalty points, compensation, costs and surcharge will all be done electronically, with no hearing. If not content, the defendant may always insist on going to court, in the old-fashioned manner. The purpose of the new statute is to streamline justice, to digitise the in-person processes.
Guilty plea in writing
A defendant aged 16 or over may plead guilty electronically in writing so that no hearing is necessary. The court may electronically decide the allocation in an either way case.
Single justice procedure
The single justice procedure will no longer be limited to individuals but is extended to corporations.
The defendant may in writing indicate his plea and choice of mode, i.e. election for jury where eligible, triable either way.
Option to reject summary trial
Having pleaded not guilty the defendant may decline summary trial and elect jury trial for a single triable either way offence.
Allocation hearing absenteeism
If the accused has previously appeared but does not appear for the allocation hearing and there is no acceptable reason for the non-appearance the court may proceed accordingly.
Crown Court trials
Too many cases are sent to the Crown Court and could be more readily disposed of in the Magistrates’ Courts. Magisterial sentencing powers are up to 12 months imprisonment. Magistrates may be more ready to convict than juries, but they are more lenient in sentencing than judges.
Remittal to the Magistrates Court
The Crown Court may send the case back to the Magistrates Court, usually if the accused consents. There is a serious backlog, so the Crown Court needs to concentrate on the really serious cases.
The accused turns 18
An accused who started in court under 18 and has now attained 18 can be transferred to the appropriate adult court.
Involvement of parent or guardian
Where the case of an accused under 18 is conducted in writing the court must be satisfied that a parent or guardian is aware and involved.
Relaxation of procedural rules
In an electronic and transparency age, the older and more traditional procedural rules are being relaxed, writing being allowed in many procedural rather than substantive matters.
Electronic service in matters such as road traffic, drugs, weights and measures and sentencing is finally arriving (Schedule 1).
There will be an independent Online Procedure Rule Committee, endowed with appropriate powers, to make the rules, including the rules required by the Lord Chancellor and Secretary of State for Justice; the Lord Chief Justice and the Senior President of Tribunals will be closely involved.
A key duty is the duty to make support available for those who require it, e.g. the digitally incompetent and excluded. Divorce, probate and debt collection matters are also being greatly expedited by electronic communication.
The Tribunal Procedure Committee will make the Tribunal Rules. There are provisions regarding composition, authorised case officer delegation, and remuneration.
The coroner may discontinue an investigation before the inquest takes place if the cause of death becomes clear, e.g. a clear undisputed post-mortem result. A non-contentious non-jury inquest may be conducted in writing. By remote hearing, the distress of a bereaved family may be reduced. Video and audio links will be possible at the inquest.
A jury need not necessarily be held in the case of a covid-19 death. The coronial areas may be changed and merged. Legal aid is available on a means and merits basis, and in exceptional cases, and the eligibility limits may be waived. But the government took the view that, as the duty of the inquest is simply inquisitorially to establish the facts, the process should not become too legalistic. Ministry of Justice Guidance is available on coroner services for bereaved people, and information is available from the Regulators, the Bar Standards Board (BSB) and the Solicitors Regulatory Authority (SRA).
Local justice areas are being abolished in order that cases may be easily transferred from one court to another. In order to cope with the shortage of magistrates the retirement age is being raised to 75 (Public Service Pensions and Judicial Offices Act 2022).
The responsibility of the Corporation of the City of London for the Mayor’s and City of London Court and the City of London Magistrates’ Court is going to end. There will be a new combined state of the art courthouse, in Fleet Street, with two additional county courts and eight new Crown Courts, making 18 hearing rooms in all. The new courts will concentrate on economic crime, white collar crime, fraud, high value business and property cases.
Alec Samuels is a barrister