The Supreme Court has set aside a High Court order barring an anonymised applicant from pursuing judicial review because of delay, ruling that the delay issue should be considered alongside the wider circumstances of the case.
The appeal concerned the procedure used by the High Court, not the merits of the applicant’s judicial review challenge. The Supreme Court directed that the alleged delay be considered with the other issues at the substantive hearing, and said each side should have the opportunity to file further affidavits about the respective allegations of delay.
The Director of Public Prosecutions had argued that the applicant waited about three years after being sent forward for trial to seek judicial review. The High Court heard that issue as a preliminary matter, decided it in the Director’s favour, dismissed the applicant’s judicial review motion and ordered him to pay the Director’s costs.
The Supreme Court judgment recounted a more complicated timeline. The applicant was charged in September 1998 and received the Book of Evidence in July 1999. His first trial began in December 2000 but collapsed four days later. The judgment said the collapse appeared not to have been attributable to the applicant and might have resulted from confusion or delay by the prosecution, while noting that this was disputed. Among the circumstances described were a psychiatrist’s evidence statement that, contrary to the impression it gave, he had not examined the relevant complainant, and late disclosure of statements concerning a separate complaint against another person.
A later trial date was postponed after no High Court judge was available. In July 2002, the applicant obtained leave to seek judicial review, including on grounds of delay. The Director’s motion to have the delay issue tried separately followed in June 2003.
Delivering the Supreme Court judgment on 3 June 2005, Mr Justice Hardiman said the High Court had erred by assessing the applicant’s delay without considering, among other matters, the apparent delay by the prosecution in the case as a whole. He said the preliminary hearing approach had led to that error because deciding whether delay justifies refusing relief can require consideration of a wider range of circumstances, including the respondents’ conduct.
The Supreme Court did not decide whether the applicant was ultimately entitled to judicial review or whether his delay was justified. It set aside the High Court order and left all issues, including delay, for consideration at the substantive hearing.