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1. A sentence imposed, or other order made, by a magistrates' court may be varied or rescinded where it appears to that court to be in the interests of justice to do so 1. This power may not be exercised after the Divisional Court has determined a case stated or the Crown Court has heard an appeal 2. A sentence or other order made by the Crown Court 3 may be varied or rescinded within 28 days of the order being made. The court must be the same as on the original hearing 4. This power will usually be used to correct minor errors made by the court when passing sentence.
2. Either party may appeal to the Supreme Court from a decision of the Court of Appeal or a decision of the Divisional Court 5 on a point of law. However, an appeal can only be brought with the leave of the court below or of the Supreme Court . Leave will not be granted unless it is certified by the court that a point of law of general public importance is involved in the decision and it appears that the point is one which should be considered by the Supreme Court 6.
3. The application must be made to the lower court within 28 days of its decision (or, if later, the date on which the court gives reasons for its decision) and, if refused, to the Supreme Court within 28 days of the refusal, although an extension of time in which to make the application may be given in limited circumstances 7. All action will be initiated by Legal Adviser’s Office.
4. Judicial review is concerned with the control of the decision-making process of the magistrates' court, and the Crown Court in matters not relating to trial on indictment 8. It can apply where the court needs to be compelled to exercise its jurisdiction or to exercise it correctly.
5. For example, where magistrates have refused without good reason to hear any evidence put forward by the prosecution and have dismissed the prosecution case, the dismissal can be quashed and the defendant can then be properly tried 9. The decision of a magistrates' clerk to refuse to issue a summons on the grounds of delay may be judicially reviewable 10.
6. Either party may apply by way of judicial review to the Divisional Court 11. Leave of the Divisional Court must be obtained before an application for judicial review can be made. The application should be made within three months of the date when the grounds for application first arose.
7. All judicial review cases must be notified to Legal Adviser’s Office. In particular, Legal Adviser’s Office must be informed of all cases which may have an impact upon HSE national policy. Examples of such cases are:
8. An example of an area where HSE may be open to particular challenge is where it has a policy not to institute prosecutions 13. A decision by HSE or another public prosecuting authority not to institute a prosecution, or to discontinue a prosecution that they have instituted, is susceptible to judicial review. Judicial review applications have been successful in a number of reported cases 14.
9. What is clear from the case law is that the power to review a decision not to prosecute is one that is to be sparingly exercised. However, the standard of review will not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute.
10. A decision to institute a prosecution is also potentially subject to judicial review, but only in rare and exceptional situations (such as demonstrable fraud, corruption, mala fides, or failure to follow agreed policy on the part of the decision maker). Judicial review may be particularly inappropriate where an alternative remedy exists15.
11. As a general, rule the courts will refuse to entertain a judicial review application where the complaint could be raised within the criminal trial and appeal process. The House of Lords in R v DPP ex parte Kebilene and others 16 made it clear that judicial review is, however, available in an appropriate case in respect of a decision not to prosecute, because in such a situation there is no other remedy.
12. In order to avoid or, at least, reduce the risk of a successful challenge by way of judicial review (or generally), HSE inspectors must ensure that the provisions of HSE's Enforcement Policy Statement and the Code for Crown Prosecutors are both understood and followed. Compliance with obligations imposed by law, such as the provisions of the Police and Criminal Evidence Act 1984, their associated Codes of Practice and the disclosure provisions found in the Criminal Procedure and Investigation Act 1996 (‘CPIA’) , will also greatly reduce the risk of a successful challenge.
13. Where an application by way of case stated has been made to the Divisional Court, in some situations the parties may be able to agree the terms on which the proceedings could be disposed of. This may occur, for example, where HSE are unable to support a conviction which has been appealed by the defendant.
14. The defence and HSE should hand into the Crown Office a document signed by both parties, setting out the terms of the proposed agreed order and a short statement of the matters relied on as justifying the making of the order.
15 If the Court is satisfied that an order can be made, the order will be announced in open court without the parties (or representatives) having to attend 17.
16. Agreed orders will be dealt with by Legal Adviser’s Office.
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