On 15 May 2014 the final of the HRLA Judicial Review Competition was held at Middle Temple Hall. The two teams granted permission to apply for judicial review at the oral permission stage in March 2014 presented their submissions to the Divisional Court (Beatson LJ, Laing J and Geoffrey Robertson QC).
Daniel Isenberg (City Law School) and Mickey Keller (University of Law) represented the Claimant, the UK Religious Rights Organisation. The Claimant was applying for judicial review of the decision of the Criminal Procedure Rule Committee to prohibit the wearing of any full-faced veil by a defendant when giving evidence in criminal proceedings, and to introduce a discretionary rule allowing judges to prohibit other witnesses from wearing the same.
It was submitted on behalf of the Claimant that the new rule breached Article 6 (right to a fair trial) and Article 9 (right to religious freedom) of the European Convention on Human Rights, as well as breaching Article 14 (the prohibition on discrimination) when read with Articles 6 and 9. The Claimant relied on decisions in other common law jurisdictions, and in particular one from the Auckland District Court in New Zealand which held that a fair trial was possible with defendants and witnesses wearing the full face veil. Beatson LJ pointed out that that decision was qualified by the fact that the Auckland court had reached that conclusion “with considerable reluctance”.
Ben Woolgar and Jyoti Wood (both City Law School) represented the Defendant, the Secretary of State for Justice. It was submitted on behalf of the Defendant that the new rule pursued a legitimate aim (that of protecting the rights and freedoms of others), or alternatively that it was a necessary and proportionate interference with Article 9 rights. It was also submitted that the new rule did not impede the fairness of criminal proceedings, as trial judges were given a wide discretion and could order all witnesses for both prosecution and defence to remove any face coverings. Geoffrey Robertson QC asked whether the Secretary of State should be interfering with the right of a defendant to present herself as she chooses in court.
Michael Polak, Chair of the HRLA’s Student Committee, stated that “it was fantastic to have such an accomplished bench for our annual competition at Middle Temple and particularly impressive how both teams responded calmly to a number of judicial interventions.”
The court announced its decision after dinner. Beatson LJ, giving the judgment of the court, paid tribute to the excellent and focused submissions of both parties. He stated that the court had reached the conclusion that the application for judicial review should be dismissed, and had decided that Mr Woolgar and Miss Wood, for the Defendant, had a slight edge over Mr Isenberg and Mr Keller when marking for advocacy. Mr Woolgar and Miss Wood were therefore declared the winners of the 2014 HRLA Judicial Review Competition.
The winners and the runners-up were awarded various prizes, generously donated by The Pen Shop, Hart Publishing, Oxford University Press and Justice.
William Horwood, Secretary, HRLA Student Committee
Judicial Review Competition Finalists Emerge from the Oral Round
On 19th March 2014, the first oral round of the HRLA’s Judicial Review Competition was held at Doughty Street Chambers. The eight teams, who were selected because of the strength of their paper applications for permission to apply for judicial review, presented oral arguments before a bench of human rights lawyers. The teams were competing for the opportunity to participate in the final of the competition, which will consist of a substantive judicial review before a distinguished bench in Middle Temple Hall on 15th May 2014.
The competing teams predominately consisted of BPTC and GDL students. However, impressively two undergraduate teams were selected to appear at the oral permission stage. The teams had various motivations for entering the competition, including entering for the “glory, prestige and honour” and taking part because ‘the question was interesting and the format was different to other competitions.’
The Judicial Review question was in relation to a fictitious new rule by the Criminal Procedure Rule Committee prohibiting the wearing of any full-faced veil by a defendant when giving evidence and a discretionary rule allowing judges to prohibit other witnesses from wearing the same. Strong submissions were made for permission to apply for judicial review of this action, with teams basing their submissions on Article 9 (freedom of religion) and Article 6 (the right to a fair trial) of the European Convention on Human Rights. Reliance was also placed on the need to conduct criminal trials in such a way as to reduce, as far as possible, the intimidation and anxiety felt by the defendant, as identified by the Strasbourg Court in V v UK.
Submissions were also made on classic judicial review grounds, notably that the amendment was ultra -vires as s.69 of the Courts Act 2003, when read with s.6 of the Human Rights Act 1998, did not grant the Criminal Procedure Rules Committee the power to make rules which interfered with Convention rights. However, some teams submitted that trial judges were best placed to decide, on a case-by-case basis, whether the application of the amendment in a particular case would conflict with the defendant’s Convention rights.
The teams which were selected for the final of the competition were Daniel Isenberg from City University and Mickey Kneller from the University of Law, who will be representing the claimant, and Ben Woolgar and Jyoti Wood from City University who will represent the defendant.
Chetna Varia, HRLA Student Committee