Judicial review

Introduction

Like all public authorities, the police are required by the Human Rights Act to respect basic liberties such as the right to assemble on the streets for political purposes; they can also be called to account before the Courts for serious and large scale abuses of their statutory and common law powers such as preventing protestors reaching an assembly, ‘kettling’, mass stop and search exercises, unjustified arrests and unlawful retention of DNA, fingerprints and other personal information.

Is there a case?

It is always important to seek advice from a public and human rights law specialist at the earliest stage where you think you may have a claim for judicial review against a public body. This is because under the court rules, judicial review claims must be brought promptly and in any event no later than 3 months from the date of the decision/action being challenged. It also takes some time to arrange funding and prepare a claim for submission to the Court.

If you are bringing a claim under the Human Rights Act 1998, your claim should be issued within 12 months of the date of the decision under challenge (except where judicial review is used, in which case the tighter time limit above applies). 

Judicial review is not always appropriate in challenging the policing of protests. As a general guide, it will be appropriate where there is an apparently unlawful policy or decision which:

• affects a large number of people (such as a kettling decision or a mass arrest for some unlawful purpose);
  has caused significant injustice/ seriously infringed civil liberties
• was not made in circumstances where the key facts are disputed by the police and difficult to prove one way or the other (cases of this kind will normally need to be pursued in the County or High Court where live evidence is more common).

Judicial review is a discretionary remedy of last resort. The court will only look at your case if there is no alternative remedy available. As a rule, judicial review will not be appropriate in cases concerned with:

• an isolated, less serious incident of police misconduct
• seeking compensation for an injury or false imprisonment (in this case a civil action against the police is likely to be more appropriate – Please click here)