Judicial Review, Proportionality and Appellate Standards: R(AR) v Chief Constable of Greater Manchester Police  UKSC 47
What should an appellate court do in an appeal from an application of the proportionality test by a lower court?
In his judgment for a unanimous UK Supreme Court in R (AR) v Chief Constable of Greater Manchester Police  UKSC 48, Lord Carnwath concluded that the appellate court need not conduct the proportionality analysis afresh. Rather, it may intervene only where “a specific principle – whether of law, policy or practice – has been infringed by the judgment of the court below” or “because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion” (at para. 64).
He quoted with approval Elias LJ’s observation in R (C) v Secretary of State for Work and Pensions  EWCA Civ 47;  PTSR 1344, at para. 34, that the appellate court should not second-guess the lower court: “It does not carry out the balancing task afresh as though it were rehearing the case but must adopt a traditional function of review, asking whether the decision of the judge below was wrong”.
The primary authority on which Lord Carnwath relied was In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33;  1 WLR 1911. Here, the first-instance judge had made a care order. Clearly, the making of a care order engages Article 8 of the European Convention on Human Rights. There was a statutory appeal to the Court of Appeal. By a majority of 3-2, the Supreme Court held that in considering the appeal, the appellate courts did not need to conduct an independent proportionality analysis. It was enough to review the first-instance’s judge’s application of the proportionality principles. As Lord Neuberger commented, “the court system as a whole must fairly determine for itself whether the requirement of proportionality is met, but that does not mean that each court up the appeal chain does so” (at para. 85). The dissenting judges (Lord Kerr and Lady Hale) would have required a fresh proportionality analysis on appeal, albeit with weight being given to the assessment of the first-instance judge.
This is slightly different from the scenario in AR. Here, the applicant had challenged the decision to include in his Enhanced Criminal Record Certificate his acquittal of rape by a jury after a criminal trial. The Certificate is significant because it must be disclosed by those applying for certain types of employment. Despite the applicant’s protestations, the Certificates for which he applied, one for a job as a lecturer, one for a job as a private hire driver, contained details of the rape allegation. The essence of his judicial review claim was that including this information on his Certificates was a breach of the presumption of innocence and the right to private life. He was unsuccessful at first instance, in the High Court ( EWHC 2721 (Admin)) and unsuccessfully appealed to the Court of Appeal. In the Supreme Court, the only issue was the lawfulness of the Certificates having regard to Article 8 of the Convention. Such an inquiry focuses on proportionality.
The procedural posture in AR was thus different to the procedural posture in In re B. In the latter, a trial judge made the proportionality determination and there was a statutory appeal. But in AR, the decision to include the information in the Certificates was an executive decision, where the first assessment of proportionality was made in the High Court. Put another way, in In re B, there was an appeal to the Court of Appeal and Supreme Court from a discretionary decision of a trial judge. In AR, the High Court determined, as a matter of legal principle, whether the Certificates had been lawfully issued having regard to the applicant’s Article 8 rights.
Counsel for the applicant pressed this distinction (at para. 55) without success. For Lord Carnwath, it had “clearly” been rejected by the majority in In re B. Moreover, the distinction ran counter to the “general policy consideration that the purpose of the appeal is to enable the reasoning of the lower court to be reviewed and errors corrected, not to provide an opportunity for the parties to reargue the same case” (at para. 57). Even Lord Kerr, who had dissented in In re B, did not voice any objections.
It is clear, then, that where the High Court makes a proportionality determination under the Convention, the Court of Appeal and Supreme Court can only allow an appeal in limited circumstances. One wonders how far this principle will extend. What about a proportionality determination at common law, or an assessment of Wednesbury unreasonableness? Presumably the same considerations would apply. What about the necessarily contextual procedural fairness inquiry? Again, the same considerations would seem to apply. One might even argue that the principle should extend to cases where proportionality or Wednesbury unreasonableness are relevant to an interpretation of vires, as in a case like R (UNISON) v Lord Chancellor  UKSC 51 (see here), though here the appellate court would be dealing with a (relatively pure) question of statutory interpretation, not an exercise of discretion or judgment by the High Court.
This decision is timely as well as interesting. One of the many issues the Supreme Court of Canada might consider in the upcoming “standard of review trilogy” is the use of appellate standards in judicial review. Current practice in Canada is that an appellate court steps into the shoes of the lower court and performs the analysis the lower court ought to have performed: Agraira v. Canada (Public Safety and Emergency Preparedness),  2 SCR 559, at paras. 45-47. This practice has been challenged, however, by Justice David Stratas, most recently in our Dunsmuir Decade symposium: “In every other appellate context, unless the first instance judge makes an error of law or of extricable legal principle, the standard is palpable and overriding error: Housen. Why a different approach in this area of law? Given the importance of access to justice and minimization of expense (see Hryniak), why require the appellate court to conduct a complete rerun of the exercise?” (“A Decade of Dunsmuir: Please No More“).
Indeed, if the Supreme Court of Canada “Housenized” judicial review by decreeding that ordinary appellate standards should henceforth be applied, the workload of appellate courts around the country would decrease dramatically. Where a first-instance judge had delved into the decision-maker’s reasons and accompanying record to make a determination as to reasonableness (in truth, a highly context-sensitive assessment, heavily reliant on judicial judgement), the appellate court would only be able to intervene to correct an error in principle or, otherwise, a palpable and overriding error.
There are obvious access-to-justice benefits to such an approach. It makes little sense to have many layers of internal appeal and/or reconsideration, followed by a judicial review in a provincial superior court (or Federal Court), followed then by the same exercise in an intermediate appellate court, followed finally (if leave is granted) by a further repeat in the Supreme Court of Canada. At present, three judicial reviews are conducted. One will usually be enough, especially if there is the safeguard of an appeal to an intermediate appellate court.
In addition, “Housenizing” judicial review of administrative action would not unduly limit the Supreme Court of Canada’s own administrative law docket, if the Court were to develop a practice of granting leave to appeal only on important questions of principle. The Court would no longer perform judicial reviews of administrative action, but would carve out a dispositive issue for its authoritative determination.
One obvious benefit would be to reduce the “noise” currently generated by the tension between the Court’s advocacy of a deferential approach to judicial review and its role as an apex court. The Court often misapplies its own principles of judicial review, in order to facilitate the making of authoritative statements of legal principle to guide the Canadian legal community, with the unfortunate side effect of causing confusion about the content of the principles of judicial review. In a “Housenized” world (or, Lord Carnwath’s Brave New World) the Court could lay out deferential principles of judicial review but, by judicious use of its discretionary power to grant leave to appeal, never actually do any judicial reviews itself. The “standard of review trilogy” would be an obvious point for the development of such an approach, though considerations of fairness to the parties to the trilogy counsels in favour of a prospective, rather than retrospective, change.
This content has been updated on August 6, 2018 at 22:32.