Prince Harry v Home Office: Part 1: What Is A Judicial Review?

The Duke of Sussex is understood to have recently filed a claim for Judicial Review against the Home Office for their failure to allow him to privately pay for police protection when he and his family visit the UK.

Whilst the claim itself has not yet been made public, I would predict that it will focus on the discretion that the police have to provide special services under s.25(1) Police Act 1996 to allow a person to privately hire the police,

“The chief officer of police of a police force may provide, at the request of any person, special police services at any premises or in any locality in the police area for which the force is maintained, subject to the payment to the local policing body of charges on such scales as may be determined by that body”

The wording of the Act means that the police may provide services to an individual at a private fee. They do not have to.

There is no guidance within the Act itself as to what a special service is, though the National Police Chief Council published guidelines in April 2019 that police forces will have to comply with when exercising discretion under s.25 to provide a special service. This is to ensure that there is uniform application throughout the UK in policing services.

Why a claim for Judicial Review?

Under the Police Act 1996, an individual can ask the police to use the special service, but they cannot compel them to do so since the service is discretionary.

A Judicial Review is a legal remedy used to challenge certain decisions, actions or failures to act of public bodies, such as local authorities in the exercise of their public functions. It is also a way of compelling a public body to make a decision or to exercise discretion where the law has placed them under a duty to do so.

The claim will be brought in the High Court, who will likely be asked to compel the police to provide these special services to the Duke and his family when in the UK, this is known as a mandatory order.

Interestingly, the Queen’s name will be included within the case title as a formality, this reflects the historical position where Her Majesty’s Judiciary, on her behalf, acted in a supervisory capacity. However, the Queen will have no involvement in the proceedings.

What will happen now?

After the claim is filed, the Home Office will have 21 days to provide any written reply as to why they consider the claim should not proceed. The Court will decide on the papers whether the claim has sufficient merit to proceed. This is known as the “permission stage”. The threshold for a Judicial Review is high and the Courts are generally reluctant to intervene unless there is very clear evidence that the authority is acting unlawfully. Such cases are therefore very rare.

As the Dukes claim isn’t urgent; for example, most of my cases are usually urgent as they generally involve a challenge to an unlawful decision by a local authority that will result in a vulnerable person being placed onto the street, it therefore could take a few months for permission to be considered.

The judge can make one of the following orders:

• to grant permission to proceed with the claim (if the judge accepts that the Duke has an arguable case);

•  to refuse permission (if the judge considers the claim is unarguable);

• to refuse permission and certify the claim as “totally without merit” (if the judge considers the claim to be hopeless);

• to order that permission be considered at an oral hearing (if the judge is not sure whether the claim is arguable, and would like to hear oral argument on that point);

• to order that the question of permission be decided at a hearing, with the final hearing to follow immediately afterwards if permission is granted (this is often referred to as a ‘rolled up/hearing’). An order of this sort is often made in cases that the judge considers are too complicated to grant permission without a hearing but need to be heard and decided urgently.

If permission is refused, any request that the decision be reconsidered at an oral hearing must be made within 7 days, unless the case has been certified as totally without merit, in which case the claim cannot proceed further.

Hodge Jones & Allen are experts in public law and are vastly experienced in bringing claims for Judicial Review against public bodies and when challenging housing decisions. To talk to one of our specialists about your situation, get in touch with us today on 0330 822 3451.