To Assist the Court:
Third Party Interventions
Angela Patrick
Director of Human Rights,
JUSTICE
7 May 2015
JUSTICE Student Human Rights Network
Webinar Series
What is an intervener?
Intervention in England and Wales is traditionally viewed as a means
for a 3rd party to join a case in order to protect their interests:
„Intervention is unknown in our Courts of Law and Equity but is
admitted in the practice of our Ecclesiastical Courts‟
Chitty, 1834
However, the CPR now allows 3rd parties directly affected by a
case to either be named as an interested party (Part 54.1(2)), or
joined as a party (Part 19.2(2)). Third party interventions distinct.
Third party interventions (TPIs):
in the public interest?
•
First NGO intervener before US Supreme Court: Ah How v
United States 193 US 65 (1904). NAACP intervened in Guinn v
United States (1915) and ACLU intervened in Carlson v
California (1940). Now 90% of US Supreme Court cases
involve an amicus brief.
•
House of Lords allowed public bodies as interveners from the
late 70s, e.g: Shields v Coomes (1978) (EOC).
•
But the Children‟s Legal Centre refused leave to intervene in
Gillick v West Norfolk Health Authority (1986).
TPIs in the UK: History

To Assist the Court (2009)

A Matter of Public Interest: Reforming the law and practice on interventions
in public interest cases (1996) JUSTICE and PLP report

R v Khan (1996) – Liberty

Thompson and Venables (1997) – JUSTICE

Chahal (1997) – JUSTICE (ECtHR)

Pinochet (1998) – Amnesty and HRW (HL)

Myra Hindley (2000) – JUSTICE (HL)
TPIs in the UK
• Parts 52; 54 CPR (England & Wales)
• RCS, Rule 58.8A (Scotland)
• The Supreme Court: Rules 15 and 26
• Rules of Court, ECtHR, Rule 44
Common features?
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Identifying public interest
•
Reasonableness
• Length of submissions (SC, 20 pages, ECtHR,
10 pages), time etc.
•
Timing
• CA: “promptly”
• SC: “6 weeks” (PD 6)
• ECtHR: 12 weeks after communicated
Key issues in interventions
• Identifying suitable cases
•
„Adding value‟
•
The wider work of JUSTICE
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Obtaining pro bono assistance
•
The consent of the parties
•
Oral v written submissions
•
Costs
Criminal Justice and Courts Act
2015
Section 87: creates a new duty to award costs against an intervener if four
criteria apply:
a)the intervener has acted, in substance, as the sole or principal applicant,
defendant, appellant or respondent;
(b)the intervener‟s evidence and representations, taken as a whole, have not
been of significant assistance to the court;
(c)a significant part of the intervener‟s evidence and representations relates to
matters that are not necessary for the court to consider in order to resolve the
issues that are the subject of the stage in the proceedings;
(d)the intervener has behaved unreasonably.
Criminal Justice and Courts Act
2015
•
Applies only to judicial review proceedings lodged after 13 April 2015;
•
Does not apply to the Supreme Court, where RSC Rule 15 continues to
apply (Presumption no costs order against a public interest intervener,
saving in defined circumstances);
•
When will the criteria apply?
•
No duty to make an order where “there are exceptional circumstances that
make it inappropriate to do so. (Section 87(7))
•
Chilling effect?
Some recent interventions
•
•
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•
•
•
•
•
•
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R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth
Affairs [2010] EWCA Civ 65
Al Rawi and others v Security Service and others [2010] EWCA Civ 482
Al Khawaja and Tahery v United Kingdom (ECtHR, 19 May)
Cadder v HM Advocate (UK Supreme Court, 24-26 May)
PH v Prosecutor of Genoa [2012] UKSC 25
Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2
Rahmatullah v Secretary of State for Foreign Affairs [2012] UKSC 48
Smith v MoD [2013] UKSC 41
Nunn v Chief Constable of Suffolk [2014] UKSC 37
Belhadj & Ors v Straw & Ors [2014] EWCA Civ 1394
A view from the Court…
“helpful”
Baroness Hale, Cadder, [47]
“powerful and significant”
Lord Kerr on JUSTICE in
Rahmatullah
Contacts
[email protected]
www.justice.org.uk
@JUSTICEhq