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<p>The Government accepts that failures of procedure can amount to substantive unlawfulness,
and that judicial review is a crucial mechanism by which such unlawfulness is considered
and remedied by the court.</p><p> </p><p>However, we are concerned by the continuing
potential for a judicial review to be brought on minor technical points which could
not have, or which were highly unlikely to have, substantially affected the outcome
for the applicant.</p><p> </p><p>The potential for this type of challenge has been
recognised by the courts, which have developed an approach in case law under which,
if the outcome would inevitably have been the same even if the alleged defect had
not occurred, the court can refuse the remedy sought – see, for example, <em>R v The
Chief Constable of the Thames Valley Police, ex parte Cotton</em> [1990] IRLR 344.</p><p>
</p><p>However, in the Government’s view the ‘inevitable’ threshold is too high to
deal effectively with claims brought on minor technical points. Consequently, in clause
64 of the Criminal Justice and Courts Bill (as introduced into the House of Lords),
the Government is legislating to provide for a ‘highly likely’ threshold.</p>
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