It is very important for any person who works in close proximity with the court system to understand both judicial review and review on appeal in some detail. Although both reviews are quite similar it is important not to forget or confuse both. In this essay I plan on defining what both mean while highlighting the differences between them.
Judicial Review
Judicial review is a key aspect of any legal system around the world. It is crucial because it allows laws that are contrary to the constitution or that violate the rights and liberties of people protected by the constitution to be revised or wiped out. Judicial review is an application put before the courts to determine whether an official action conforms within the power given. These decisions of judicial review can come from certain specific groups such as a government departments, tribunals and other lower courts. The right to a judicial review extends to decisions made by inferior courts and not to decisions to superior courts. In the English case of R v Secretary of State [2001] Lord Hoffman highlighted the importance of judicial review by saying "The principles of Judicial Review give effect to the Rule of Law. They ensure that administrative decisions will be taken rationally in accordance with a fair procedure and within the powers conferred by Parliament". [1]
A review is usually submitted by the person affected or their solicitor. It is not unusual for parties to submit further information to the courts and ask the court system to re-consider their decision. The purpose of the review is to allow the courts to re-examine and if appropriate, reverse the decision. If the applicant does not include additional information it is not likely that the decision will be altered. It is in the best interests of both parties to include all the information available when asking for a review.
Judicial Review is the reassessment of legal actions or decisions made by those in position of public authority or bodies such as a Judge. The action or decision in question is brought before a Judge in court proceedings where the lawfulness of the decision is tested. There are three main grounds for judicial review. They are illegality, irrationality and unfairness. The Illegality of a decision is referred to as ultra vires. This deems the decision unlawful because the decision maker did not have the power to make the relevant decision. Irrationality refers to the absurd nature of a decision that is completely inaccurate with the moral standard of the courts. The final ground for judicial review is unfairness. This relates to the disregard of procedural rules made by a member of the court system.
The AtThe authority of judicial review is set in stone in article 34 of The Irish Constitution. In Article 34 3 1- it states that "The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal". This article highlights the power of the supreme court as the most powerful court in the country. Article 34 3 4 – states that the people of Ireland have the right to a fair appeal. [2] One of the leading cases in Ireland that highlights the authority of judicial review is Criminal Assets Bureau v. Hunt [2003] 2 I.R case. This case was about a couple who had been accused of the importation of illegal tobacco and firearms. After 12 days the judge finally made his judgement that Mr. Hunt was to pay outstanding taxes and charges of almost £2,000,000. Mr. Hunt appealed for judicial review and the courts reversed the decision. The Constitution allowed the court system to a judicial review.
Review on Appeal
An appeal is a process that challenges the outcome of a decision made by a court. An appeal is usually contested by the party affected by the original verdict. It is crucial for any person willing to go down the road of appeals to have a clear understanding of the courts hierarchy in order to lodge a valid appeal.
A person has the right to appeal against any decision, including any decision taken following a review of an original decision. In the appeals process the court must review the facts and findings of the case and review the case from a fresh perspective. An appeal, reviews the the outcome made by the decision-maker and the reasoning the decision-maker gives for the decision. An appeal often said to be de novo. This means that the appeal court placed itself in the shoes of the original decision-maker. It considers all the
evidence and decides whether the decision reached is the correct or preferable one. A successful appeal may replace the decision made by the original decision maker.
The leading case in Ireland that describes both processes is Amjad Hussein v. The Labour Court [2016] 1 I.R. 180. This case was about a restaurateur from Dublin. The applicant hired a relative of his to work for him. Both of whom were of Pakistani origin. The applicant was accused of breaching various illegal working conditions and reasonable pay. A rights commissioner believed the applicant should pay considerable relief. The applicant failed to pay the money and the commissioner issued him to the Labour Court. The provisions that were eluded to by the commissioner entitled the Labour Court to apply the relief. The Applicant then sought judicial review, Mr. Hussein wanted a reassessment of the public authority that brought the relief forward. Mr. Hussein was successful before the High Court and Judge Hogan quashed them. The case was quashed because the commissioner did not have the right permit.
Following the ruling of the high court, the notice party appealed to the Supreme Court that was made up of Murray, Hardiman and MacMenamin JJ which allowed the appeal.[3] "The Supreme Court noted in passing that, given the multiplicity of regulatory measures in a modern economy concerning employment relationships and the supply of goods and services, the question of the circumstances in which some form of illegality in a contractual relationship might be considered a ground for not enforcing it, was a complex one. It indicated that traditional judicial dicta on the point might have to be reviewed or nuanced in the light of the modern regulatory environment, and applied with the principle of proportionality in mind".[4] The court did not believe that because the relationship between the employer and the employee was illegal the charges should not stand. Thus the Supreme Court decided to allow the decision of the Labour Court to Stand.
Differences
There are a number of differences between judicial review and the review on appeal:
First of all the review is concerned with the correctness of the legal matters of a decision, whereas an appeal is concerned with the correctness of the decision itself. In an appeal the process will entail that the original decision maker was wrong on his conclusion of the law or the facts in the case. The review will cast over the procedure and make sure it was done so in the correct manor.
A key difference between both the review on a appeal and judicial review is that an appeal is a statutory right for any individual whereas review is a discretionary right of the court. This difference has been key to many decisions and highlighted numerous times by Judges.
The judicial review is filed in the same court as the decision was made whereas appeal is filed in a higher court then the original decision maker.
Illegality, irrationality and unfairness form the basis of a judicial review whereas there can be grounds of dissatisfaction or disappointment for filing a review on appeal.