Criminal Justice and Courts Bill (HC Bill 169)

Criminal Justice and Courts BillPage 50

(d) a member of staff of that court who would reasonably be
expected to disclose the information only to a person mentioned
in paragraphs (a) to (c).

(4) It is not an offence under section 20D for a person who reasonably
5believes that a disclosure described in subsection (1) has been made to
disclose information for the purposes of the investigation.

(5) It is not an offence under section 20D for a person to disclose
information in evidence in—

(a) proceedings for an offence or contempt of court alleged to have
10been committed by or in relation to a juror in connection with
the proceedings mentioned in section 20D(1),

(b) proceedings on an appeal, or an application for leave to appeal,
against a decision in the proceedings mentioned in section
20D(1) where an allegation relating to conduct of or in relation
15to a juror forms part of the grounds of appeal, or

(c) proceedings on any further appeal or reference arising out of
proceedings mentioned in paragraph (a) or (b).

(6) It is not an offence under section 20D to publish information disclosed
as described in subsection (5).

(7) 20It is not an offence under section 20D to solicit a disclosure described in
subsections (1) to (6).

(8) It is not an offence under section 20D to obtain information—

(a) by means of a disclosure described in subsections (1) to (6), or

(b) from a document that is available to the public or a section of the
25public.

(9) In this section—

  • “publish” means make available to the public or a section of the
    public;

  • “relevant investigator” means—

    (a)

    30a police force;

    (b)

    the Attorney General;

    (c)

    the Criminal Cases Review Commission;

    (d)

    the Crown Prosecution Service;

    (e)

    any other person or class of person specified by the Lord
    35Chancellor for the purposes of this section by
    regulations made by statutory instrument.

(10) The Lord Chancellor must obtain the consent of the Lord Chief Justice
before making regulations under this section.

(11) A statutory instrument containing regulations under this section is
40subject to annulment in pursuance of a resolution of either House of
Parliament.

(2) In the Contempt of Court Act 1981, as it extends to England and Wales, section
8 (confidentiality of jury’s deliberations) is repealed.

(3) In section 8(1) of that Act, as it extends to Scotland and Northern Ireland, at the
45beginning insert “In Scotland and Northern Ireland,”.

Criminal Justice and Courts BillPage 51

(4) In the heading of that section, at the end insert “: Scotland and Northern
Ireland”.

46 Juries at inquests

Schedule 7 makes provision about juries at inquests and their deliberations.

47 5Members of the Court Martial

Schedule 8 makes provision about members of the Court Martial and their
deliberations.

48 Supplementary provision

(1) In Schedule 1 to the Juries Act 1974 (persons disqualified for jury service), after
10paragraph 6 insert—

6A A person who at any time in the last ten years has been convicted
of—

(a) an offence under section 20A, 20B, 20C or 20D of this Act,

(b) an offence under paragraph 5A, 5B, 5C or 5D of Schedule 6 to
15the Coroners and Justice Act 2009 (equivalent offences
relating to jurors at inquests), or

(c) an offence under paragraph 2, 3, 4 or 5 of Schedule 2A to the
Armed Forces Act 2006 (equivalent offences relating to
members of the Court Martial).

(2) 20In section 22 of the Juries Act 1974 (consequential amendments, savings and
repeals), at the beginning insert—

(A1) Nothing in section 20A, 20B or 20C affects what constitutes contempt of
court at common law.

Other matters

49 25Minor amendments

(1) In section 132(4A) of the Powers of Criminal Courts (Sentencing) Act 2000
(compensation orders: appeals etc), for “House of Lords” substitute “the
Supreme Court”.

(2) In section 13(6A)(a) of the Tribunals, Courts and Enforcement Act 2007 (rules
30of court about when the Court of Session may grant permission to appeal
against a decision of the Upper Tribunal), after “principle” insert “or practice”.

Part 4 Judicial review

Judicial review in the High Court and Upper Tribunal

50 35Likelihood of substantially different outcome for applicant

(1) In section 31 of the Senior Courts Act 1981 (applications for judicial review),

Criminal Justice and Courts BillPage 52

after subsection (2) insert—

(2A) The High Court—

(a) must refuse to grant relief on an application for judicial review,
and

(b) 5may not make an award under subsection (4) on such an
application,

if it appears to the 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.

(2) 10In that section, before subsection (4) insert—

(3B) When considering whether to grant leave to make an application for
judicial review, the High Court—

(a) may of its own motion consider whether the outcome for the
applicant would have been substantially different if the conduct
15complained of had not occurred, and

(b) must consider that question if the defendant asks it to do so.

(3C) If, on considering that question, it appears to the High Court to be
highly likely that the outcome for the applicant would not have been
substantially different, the court must refuse to grant leave.

(3) 20In that section, after subsection (7) insert—

(8) In this section “the conduct complained of”, in relation to an application
for judicial review, means the conduct (or alleged conduct) of the
defendant that the applicant claims justifies the High Court in granting
relief.

(4) 25In section 15 of the Tribunals, Courts and Enforcement Act 2007 (the Upper
Tribunal’s “judicial review” jurisdiction), after subsection (5) insert—

(5A) In cases arising under the law of England and Wales, section 31(2A) of
the Senior Courts Act 1981 applies to the Upper Tribunal when
deciding whether to grant relief under subsection (1) as it applies to the
30High Court when deciding whether to grant relief on an application for
judicial review.

(5) In section 16 of the Tribunals, Courts and Enforcement Act 2007 (application
for relief under section 15(1)), before subsection (4) insert—

(3B) In cases arising under the law of England and Wales, when considering
35whether to grant permission to make the application, the tribunal—

(a) may of its own initiative consider whether the outcome for the
applicant would have been substantially different if the conduct
complained of had not occurred, and

(b) must consider that question if the respondent asks it to do so.

(3C) 40In subsection (3B) “the conduct complained of” means the conduct (or
alleged conduct) of the respondent that the applicant claims justifies
the tribunal in granting relief.

(3D) If, on considering the question mentioned in subsection (3B)(a) and (b),
it appears to the tribunal to be highly likely that the outcome for the
45applicant would not have been substantially different, the tribunal
must refuse to grant permission.

Criminal Justice and Courts BillPage 53

(6) In that section, after subsection (6) insert—

(6A) In cases arising under the law of England and Wales, section 31(2A) of
the Senior Courts Act 1981 applies to the Upper Tribunal as regards the
making of an award under subsection (6) as it applies to the High Court
5as regards the making of an award under section 31(4) of the Senior
Courts Act 1981.

51 Provision of information about financial resources

(1) In section 31(3) of the Senior Courts Act 1981 (applications for leave to apply
for judicial review)—

(a) 10after “unless” insert “—

(a), and

(b) at the end insert , and

(b) the applicant has provided the court with any
information about the financing of the application that is
15specified in rules of court for the purposes of this
paragraph.

(2) In that section, after subsection (3) insert—

(3A) The information that may be specified for the purposes of subsection
(3)(b) includes—

(a) 20information about the source, nature and extent of financial
resources available, or likely to be available, to the applicant to
meet liabilities arising in connection with the application, and

(b) if the applicant is a body corporate that is unable to demonstrate
that it is likely to have financial resources available to meet such
25liabilities, information about its members and about their ability
to provide financial support for the purposes of the
application.

(3) In section 16(3) of the Tribunals, Courts and Enforcement Act 2007
(applications for permission or leave to apply for relief under section 15(1):
30Upper Tribunal’s “judicial review” jurisdiction)—

(a) after “unless” insert “—

(a), and

(b) at the end insert , and

(b) in cases arising under the law of England and Wales, the
35applicant has provided the tribunal with any
information about the financing of the application that is
specified in Tribunal Procedure Rules for the purposes
of this paragraph.

(4) In that section, after subsection (3) insert—

(3A) 40The information that may be specified for the purposes of subsection
(3)(b) includes—

(a) information about the source, nature and extent of financial
resources available, or likely to be available, to the applicant to
meet liabilities arising in connection with the application, and

(b) 45if the applicant is a body corporate that is unable to demonstrate
that it is likely to have financial resources available to meet such
liabilities, information about its members and about their ability

Criminal Justice and Courts BillPage 54

to provide financial support for the purposes of the
application.

52 Use of information about financial resources

(1) This section applies when the High Court, the Upper Tribunal or the Court of
5Appeal is determining by whom and to what extent costs of or incidental to
judicial review proceedings are to be paid.

(2) The information to which the court or tribunal must have regard includes—

(a) information about the financing of the proceedings provided in
accordance with section 31(3)(b) of the Senior Courts Act 1981 or
10section 16(3)(b) of the Tribunals, Courts and Enforcement Act 2007, and

(b) any supplement to that information provided in accordance with rules
of court or Tribunal Procedure Rules.

(3) The court or tribunal must consider whether to order costs to be paid by a
person, other than a party to the proceedings, who is identified in that
15information as someone who is providing financial support for the purposes of
the proceedings or likely or able to do so.

(4) In this section “judicial review proceedings” means—

(a) proceedings on an application for leave to apply for judicial review,

(b) proceedings on an application for judicial review,

(c) 20proceedings on an application for permission to apply for relief under
section 15 of the Tribunals, Courts and Enforcement Act 2007 in a case
arising under the law of England and Wales,

(d) proceedings on an application for such relief in such a case,

(e) any proceedings on an application for leave to appeal from a decision
25in proceedings described in paragraph (a), (b), (c) or (d), and

(f) proceedings on an appeal from such a decision.

53 Interveners and costs

(1) This section applies where, in judicial review proceedings, a person other than
a relevant party to the proceedings (an “intervener”) is granted permission to
30file evidence or make representations in the proceedings.

(2) A relevant party to the proceedings may not be ordered by the High Court or
the Court of Appeal to pay the intervener’s costs in connection with the
proceedings.

(3) Subsection (2) does not prevent the court making an order if it considers that
35there are exceptional circumstances that make it appropriate to do so.

(4) On an application to the High Court or the Court of Appeal by a relevant party
to the proceedings, the court must order the intervener to pay any costs
specified in the application that the court considers have been incurred by that
party as a result of the intervener’s involvement in the proceedings.

(5) 40Subsection (4) does not require the court to make an order if it considers that
there are exceptional circumstances that make it inappropriate to do so.

(6) In determining whether there are exceptional circumstances that are relevant
for the purposes of subsection (3) or (5), the court must have regard to criteria
specified in rules of court.

Criminal Justice and Courts BillPage 55

(7) In this section, “judicial review proceedings” means—

(a) proceedings on an application for leave to apply for judicial review,

(b) proceedings on an application for judicial review,

(c) any proceedings on an application for leave to appeal from a decision
5in proceedings described in paragraph (a) or (b), and

(d) proceedings on an appeal from such a decision.

(8) For the purposes of this section, “a relevant party” to judicial review
proceedings means any of the following—

(a) the applicant and the defendant,

(b) 10in the case of proceedings on an appeal, the appellant and the
respondent, and

(c) any other person who is directly affected by the proceedings and on
whom the application for judicial review, or for leave to apply for
judicial review, has been served.

54 15Capping of costs

(1) A costs capping order may not be made by the High Court or the Court of
Appeal in connection with judicial review proceedings except in accordance
with this section and sections 55 and 56

(2) A “costs capping order” is an order limiting or removing the liability of a party
20to judicial review proceedings to pay another party’s costs in connection with
any stage of the proceedings.

(3) The court may make a costs capping order only if leave to apply for judicial
review has been granted.

(4) The court may make a costs capping order only on an application for such an
25order made by the applicant for judicial review in accordance with rules of
court.

(5) Rules of court may, in particular, specify information that must be contained in
the application, including—

(a) information about the source, nature and extent of financial resources
30available, or likely to be available, to the applicant to meet liabilities
arising in connection with the application, and

(b) if the applicant is a body corporate that is unable to demonstrate that it
is likely to have financial resources available to meet such liabilities,
information about its members and about their ability to provide
35financial support for the purposes of the application.

(6) The court may make a costs capping order only if it is satisfied that—

(a) the proceedings are public interest proceedings,

(b) in the absence of the order, the applicant for judicial review would
withdraw the application for judicial review or cease to participate in
40the proceedings, and

(c) it would be reasonable for the applicant for judicial review to do so.

(7) The proceedings are “public interest proceedings” only if—

(a) an issue that is the subject of the proceedings is of general public
importance,

(b) 45the public interest requires the issue to be resolved, and

Criminal Justice and Courts BillPage 56

(c) the proceedings are likely to provide an appropriate means of resolving
it.

(8) The matters to which the court must have regard when determining whether
proceedings are public interest proceedings include—

(a) 5the number of people likely to be directly affected if relief is granted to
the applicant for judicial review,

(b) how significant the effect on those people is likely to be, and

(c) whether the proceedings involve consideration of a point of law of
general public importance.

(9) 10The Lord Chancellor may by regulations amend this section by adding,
omitting or amending matters to which the court must have regard when
determining whether proceedings are public interest proceedings.

(10) Regulations under this section are to be made by statutory instrument.

(11) A statutory instrument containing regulations under this section may not be
15made unless a draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.

(12) In this section and sections 55 and 56—

  • “costs capping order” has the meaning given in subsection (2);

  • “the court” means the High Court or the Court of Appeal;

  • 20 “judicial review proceedings” means—

    (a)

    proceedings on an application for leave to apply for judicial
    review,

    (b)

    proceedings on an application for judicial review,

    (c)

    any proceedings on an application for leave to appeal from a
    25decision in proceedings described in paragraph (a) or (b), and

    (d)

    proceedings on an appeal from such a decision,

    and the proceedings described in paragraphs (a) to (d) are “stages” of
    judicial review proceedings.

(13) For the purposes of this section and section 55, in relation to judicial review
30proceedings—

(a) the applicant for judicial review is the person who is or was the
applicant in the proceedings on the application for judicial review, and

(b) references to relief being granted to the applicant for judicial review
include the upholding on appeal of a decision to grant such relief at an
35earlier stage of the proceedings.

55 Capping of costs: orders and their terms

(1) The matters to which the court must have regard when considering whether to
make a costs capping order in connection with judicial review proceedings,
and what the terms of such an order should be, include—

(a) 40the financial resources of the parties to the proceedings, including the
financial resources of any person who provides, or may provide,
financial support to the parties;

(b) the extent to which the applicant for the order is likely to benefit if relief
is granted to the applicant for judicial review;

Criminal Justice and Courts BillPage 57

(c) the extent to which any person who has provided, or may provide, the
applicant with financial support is likely to benefit if relief is granted to
the applicant for judicial review;

(d) whether legal representatives for the applicant for the order are acting
5free of charge;

(e) whether the applicant for the order is an appropriate person to
represent the interests of other persons or the public interest generally.

(2) A costs capping order that limits or removes the liability of the applicant for
judicial review to pay the costs of another party to the proceedings if relief is
10not granted to the applicant for judicial review must also limit or remove the
liability of the other party to pay the applicant’s costs if it is.

(3) The Lord Chancellor may by regulations amend this section by adding to,
omitting or amending the matters listed in subsection (1).

(4) Regulations under this section are to be made by statutory instrument.

(5) 15A statutory instrument containing regulations under this section may not be
made unless a draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.

(6) In this section—

  • “free of charge” means otherwise than for or in expectation of fee, gain or
    20reward;

  • “legal representative”, in relation to a party to proceedings, means a
    person exercising a right of audience or conducting litigation on the
    party’s behalf.

56 Capping of costs: environmental cases

(1) 25The Lord Chancellor may by regulations provide that sections 54 and 55 do not
apply in relation to judicial review proceedings which, in the Lord
Chancellor’s opinion, have as their subject an issue relating entirely or partly
to the environment.

(2) Regulations under this section—

(a) 30may make provision generally or only in relation to proceedings
described in the regulations, and

(b) may include transitional, transitory or saving provision.

(3) Regulations under this section are to be made by statutory instrument.

(4) A statutory instrument containing regulations under this section is subject to
35annulment in pursuance of a resolution of either House of Parliament.

Planning proceedings

57 Leave of court required for certain planning proceedings

(1) Section 288 of the Town and Country Planning Act 1990 (proceedings for
questioning the validity of other orders, decisions and directions) is amended
40as follows.

(2) In subsection (3) after “this section” insert “relating to anything other than an
English matter”.

Criminal Justice and Courts BillPage 58

(3) After subsection (3) insert—

(3A) An application under this section relating to an English matter may not
be made without the leave of the High Court.

(3B) An application for leave for the purposes of subsection (3A) must be
5made within six weeks from (as the case may be)—

(a) the date on which the order is confirmed or (in the case of an
order under section 97 which takes effect under section 99
without confirmation) takes effect, or

(b) the date on which the action is taken.

(4) 10After subsection (5) insert—

(5A) When considering whether to grant leave for the purposes of
subsection (3A), the High Court may, subject to subsection (6), by
interim order suspend the operation of the order or action the validity
of which the person or authority concerned wishes to question, until
15the final determination of—

(a) the question of whether leave should be granted, or

(b) where leave is granted, the proceedings on any application
under this section made with such leave.

(5) In subsection (6), after “orders” insert “; and subsection (5A) shall not apply
20where leave is sought to make such an application.”

(6) After subsection (9) insert—

(9A) In this section “English matter” means—

(a) an order to which this section applies which is made by—

(i) a local planning authority in England,

(ii) 25a mineral planning authority in England, or

(iii) the Secretary of State, or

(b) action to which this section applies which is on the part of the
Secretary of State.

(7) After subsection (10) insert—

(11) 30References in this Act to an application under this section do not
include an application for leave for the purposes of subsection (3A).

Part 5 Final provisions

58 Power to make consequential and supplementary provision etc

(1) 35The Lord Chancellor or the Secretary of State may by regulations make
consequential, supplementary, incidental, transitional, transitory or saving
provision in relation to any provision of this Act.

(2) The regulations may, in particular, amend, repeal or revoke legislation.

(3) Regulations under this section are to be made by statutory instrument.

Criminal Justice and Courts BillPage 59

(4) A statutory instrument containing regulations under this section is subject to
annulment in pursuance of a resolution of either House of Parliament, subject
to subsection (5).

(5) A statutory instrument containing regulations under this section that amend or
5repeal a provision of an Act (whether alone or with other provision) may not
be made unless a draft of the instrument has been laid before, and approved by
a resolution of, each House of Parliament.

(6) In this section—

  • “Act” includes an Act or Measure of the National Assembly for Wales;

  • 10“legislation”, in relation to regulations made under this section, means—

    (a)

    an Act passed before or in the same Session as this Act, or

    (b)

    an instrument made under an Act before the regulations come
    into force.

59 Financial provision

15There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown under or by virtue of this
Act, and

(b) any increase attributable to this Act in the sums payable under any other Act
out of money so provided.

60 20Commencement

(1) The provisions of this Act come into force on such day as the Lord Chancellor
or the Secretary of State may appoint by order, subject to subsection (2).

(2) This Part comes into force on the day on which this Act is passed.

(3) An order under this section is to be made by statutory instrument.

(4) 25An order under this section may—

(a) appoint different days for different purposes, and

(b) make transitional, transitory or saving provision.

61 Extent

(1) An amendment or repeal made by this Act has the same extent as the provision
30amended or repealed (ignoring extent by virtue of an Order in Council), subject
to subsections (2) to (4).

(2) Section 37(2)(a), (3), (4) and (5) extend to England and Wales only.

(3) An amendment or repeal of a provision of the Armed Forces Act 2006 extends
to England and Wales, Scotland and Northern Ireland.

(4) 35An amendment or repeal of any other provision, so far as it is applied by the
Armed Forces Act 2006, extends to England and Wales, Scotland and Northern
Ireland (and section 385 of that Act does not apply in relation to the
amendment or repeal).

(5) A provision of this Act, other than an amendment or repeal, extends to
40England and Wales, Scotland and Northern Ireland, subject to subsection (6).

(6) The following provisions extend to England and Wales only—