Tuesday, 20 November 2012

Judicial review – the statistics

After Cameron’s speech to the CBI yesterday, it occurred to me to wonder whether there really has been a huge increase in judicial review cases as he alleged. I am grateful to the Guardian for publishing the relevant statistics on their website. I am told that this point was also picked up yesterday on The World at One on Radio 4. It immediately becomes clear that Cameron’s assertion is grossly misleading.

The statistics are divided into three categories – (1) Immigration / asylum, (2) Criminal, and (3) ‘Others’. The first category vastly outnumbers all the others combined. Immigration/asylum cases represent more than three-quarters of all judicial review applications. This is almost undoubtedly a reflection of a basically unfair process which inevitably causes perceived injustice, coupled with the inadequacy of the existing immigration/asylum appeals system. Nonetheless, the success rate in immigration/asylum cases is far lower than in any other category (about 0.6% of all immigration/asylum JR applications), and the successful challenges represent less than 10% of those cases that go forward for a full hearing.

It is this one area that accounts for the entire increase in JR applications, but there are entirely understandable reasons for this, given the government’s clamp-down on immigration/asylum claims in recent years. The hard-line approach the government has adopted has undoubtedly led to an increasing sense of injustice and to a resulting rise in the number of JR applications in this category. However, this increase should not be allowed to distort the overall view of JR cases in the other categories.

The criminal cases are in a special category of their own and represent by far the lowest number of JR applications – only 3% of the total number of applications. They add little or nothing to the statistics.

This leaves the “other” category of JR applications, which cover all the planning, environmental and other cases (such as the Virgin Rail challenge to the West Coast rail franchise decision). The numbers involved are far fewer than the PM would have us believe. When you strip out the immigration/asylum and criminal cases, you are left with just 2,213 JR applications in 2011, of which 527 went forward to a full hearing and 87 were successful (about 4% of all ‘other’ applications, and about 16 or 17% of those that went to a full hearing).

As to the rise in applications, the recent figures for ‘other’ JR applications were 2011 – 2,213, 2010 – 2,091, 2009 – 2,132, 2008 – 2,228, 2007 – 2,059, 2006 – 2,121, 2005 – 1,797, 2004 – 1,685. This does not indicate any recent increase, although the level does seem to have jumped slightly after 2005. I don’t have the figures for the years before 2004.

The percentage of ‘other’ JR claimants getting permission for a full hearing in these years has been 2011 - 24%, 2010 - 20%, 2009 - 21%, 2008 - 22%, 2007 - 22%, 2006 - 19%, 2005 - 21%, 2004 - 29%. One might have expected to see a reduction in the percentage of cases granted permission to go forward if there had been any significant increase in unmeritorious claims, which the PM seemed to be suggesting, but these figures certainly don’t indicate any significant change, other than an apparent drop in the proportion of cases granted permission to proceed after 2004. I am not in a position to say whether 2004 was untypical, or whether there was a change in 2005, compared with previous years.

However, judging by the figures over the past 8 years, Judicial Review does not appear to be a ‘growth industry’, as the PM alleges. The overall increase in JR applications has been solely attributable to immigration/asylum cases. The figures in the criminal and ‘other’ categories look fairly stable over the past few years. This is all too typical of the shoddy research (or compete lack of research) and general superficiality that lies behind ministerial policy initiatives under this government. There really doesn’t seem to be any justification for the prime minister’s strictures, or for any attempted limitation on the existing right to apply for judicial review in the ‘other’ category. (I don’t propose to stray into the minefield of immigration law and policy, which is an entirely different subject.)


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