Courts and Tribunals Bill — Further written evidence submitted by the Bar Council (CTB34)

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Courts and Tribunals Bill
Public Bill Committee
Bar Council Written Evidence - Judicial Review and Clause 3

Summary
Clause 3, page 9, line 17 of the Courts and Tribunals Bill, as introduced, reads1

(1) There is no right of appeal against a determination under section 74A or 74B

Under s.28(1)(a) and s.29(3) of the Senior Courts Act 1981, it is not possible to appeal
by way of case stated or claim judicial review in respect of a judgment or other
decision of the Crown Court relating to trial on indictment.

Case stated or judicial review can, for example, be used for a decision of the Crown
Court not related to trial on indictment, such as an appeal against conviction from a
magistrates’ court or a decision under the Bail (Amendment) Act 1993.

BUT it will not be available in respect of any decision relating to the conduct of a
Crown Court trial on indictment: Re Smalley [1985] AC 622.

The key question from the caselaw is whether or not the decision in question arises
from the issue between the prosecution and the defence, and whether the decision
will have any effect on the conduct of the trial.

Put another wayif there were to be a judicial review claim, would the trial have to be
delayed to await the resolution of such a claim?

In relation to the proposed allocation to the CCBD, such a decision would affect the
conduct of the trial on indictment (i.e. the nature of the bench trying the case ). A
judicially reviewed claim would be likely to cause delay to the trial, as the Crown
Court would likely have to await the decision of the High Court before trying the case.

And so- the law points against there being jurisdictional power to judicial review the
allocation decision by a Judge.

1 Courts and Tribunals Bill, as introduced, page 9

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After Conviction
At conviction, the defendant can apply for leave to appeal.

At this stage, is the Bill seeking to prevent the defendant from including allocation by
Judge in their appeal?

So, a Judge could act unlawfully on allocation with no appeal safeguard (there being
no power to judicially review)?
If the appeal against allocation happens after conviction, the Court of Appeal would
have to have power to return the case for trial by jury.

A proper safeguard is appeal against allocation at that allocation stage.

Overview
Relevant passages from practitioner texts
Archbold 2026, §§ 7-2, 7-10; Blackstone’s 2026, § 29.40

Relevant authorities
1. Re Smalley [1985] AC 622 (HL)

• Concerned the Crown Court judge’s order estreating the whole amount of
the recognizance given for a surety as part of bail.
• The House of Lords held that the test as to whether the judge’s decision fell
within s.29(3) was whether the decision was one affecting the conduct of
trial on indictment in the course of the trial or pre -trial directions. The
parameters are ‘a decision given during the trial’ as well as ‘a decision given
in advance of the trial which affects the conduct of the trial’. The Divisional
Court had therefore been wrong to decline jurisdiction, as the decision was
one concerning bail and could not ‘affect the con duct of any trial on
indictment in any way’ (per Lord Bridge, pp 642–643).

2. R (McCann) v Manchester Crown Court [1993] 1 WLR 1524 (HL)

• Considers Re Smalley, but also later decisions in which the Divisional Court
accepted jurisdiction relating to abuse of process (which were then
overruled by the HL in Re Ashton [1993] 2 WLR 846).
• A ‘helpful further pointer’ when construing s.29(3) may be to ask if the
decision in question ‘arises in ’ the issue between the Crown and the
defendant formulated by the indictment (including costs). If it does, to
permit challenge by judicial review may lead to delay and is therefore
probably excluded from review by the section (per Lord Browne-Wilkinson,
pp 1524 and 1530).

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• The central point is to ‘avoid delay’, which would be created by leaving
open the possibility of judicial review (p 1529). (Lord Browne -Wilkinson’s
reasoning here seems to be that, if JR would lead to delay of the trial itself,
the decision in question is likely to be included in s.29(3).)

For further information, please contact publicaffairs@barcouncil.org.uk

Bar Council & Criminal Bar Association
20 April 2026