Assumed lawful, never proved
Why a High Court refusal order is doctrinally defective
This is the second article in a trilogy examining the meaning and consequences of a High Court order that refused permission for judicial review.
The immediate issue was narrow. I sought a temporary stay on enforcement of a fine while a basic jurisdictional question was tested: which court, exactly, had convicted me? At the same time, I sought to preserve access to supervisory review, which had already been repeatedly blocked. The response was an emphatic refusal of permission, accompanied by an order for substantial costs.
What makes the order worth close attention is not the outcome, but the reasons given for it. Those reasons exemplify the current state of administrative justice in England and Wales.
In the first article, I treated the order descriptively, reading it as a self-portrait of the justice system. That analysis showed how challenges to the existence of authority are acknowledged and then deflected into safer rulings about its exercise, allowing foundational questions to be displaced rather than resolved.
This second article turns from description to evaluation. It asks a more conventional public-law question: is this reasoning compatible with the rule of law as it has traditionally been understood? Here the focus is doctrinal. I examine where the order mischaracterises the claim, presumes authority where proof is required, and applies procedural doctrines in ways that depend on the very jurisdictional facts in dispute.
The final article will step back again to consider why this matters beyond my own case. It will explore what follows if this mode of reasoning is generalised—particularly for access to supervisory review, accountability for coercive enforcement, and the practical meaning of legality in routine cases.
B1. Failure to determine jurisdiction before permitting enforcement
What the law requires
In plain terms, the state has to show it had the legal right to act before it can punish someone. Where a claimant raises a genuine question as to whether a court existed, was properly constituted, or lawfully exercised power, that question must be determined, not merely noted. The court must either establish jurisdiction or explain why the alleged defect is legally irrelevant.
At the permission stage, the task is to decide whether such a challenge is arguable. If it is, the court must allow the issue to be adjudicated.
What the order does
The order identifies the claimant’s concern about jurisdiction but does not determine it. Instead, it asserts that the challenge is “not arguable”:
“it is not arguable that the Magistrates… did not have power to deal with his case…”
No analysis follows as to how that power arose, which court exercised it, or why the absence of a sealed or authenticated court order is legally immaterial. Crucially, the order makes no alternative finding: it does not say that such an order exists, that it is unnecessary, or that its absence is irrelevant as a matter of law.
What follows as a result
The jurisdictional question is neither answered nor resolved away. It is simply bypassed. Enforcement is permitted without the court having established — or even explained why it need not establish — the legal basis on which coercive power is exercised. In other words, a criminal punishment can be enforced without identifying a named court or demonstrated judicial act underpinning that coercion.
B2. Mischaracterisation of the claim to trigger exclusionary doctrines
What the law requires
A court must address the claim as pleaded — not a different claim. Characterisation cannot be used to transform a challenge to ongoing enforcement authority into a different challenge to the merits of conviction, so the jurisdiction defect can be dismissed by engaging doctrines of collateral attack or finality.
What the order does
The order reframes the claim at the outset:
“To the extent that the Claimant seeks, in reality, to challenge the initial imposition of the financial penalties…”
If the State did not have jurisdiction to enforce, then the conviction would necessarily be void. That is not a radical claim; it is a basic consequence of the rule of law. But this recharacterisation in the order precedes any determination of the jurisdictional issue. Once adopted, it allows the order to invoke collateral attack principles and alternative remedies without confronting the pleaded concern: whether enforcement is being pursued pursuant to a lawful court order.
What follows as a result
Foundational questions are displaced by re-categorisation from “difficult” to “safe” terrain for the system. The claim is excluded from review not because it lacks substance, but because it has been re-routed into a procedural category where adjudication is unavailable. Rather than enforcement flowing from jurisdiction, this is inverted: because enforcement is in effect, jurisdiction is presumed.
B3. Presumption of authority where proof is required
What the law requires
Where enforcement authority is challenged, the state must demonstrate the legal act by which that authority was conferred. Different attribution models exist in law, but they must be applied coherently and consistently.
What the order does
The order moves between incompatible attribution models without reconciliation. At times, authority appears to require a specific court act (a conviction or order); at others, authority is treated as flowing abstractly from the statutory framework:
“the legal powers derive from the statutory framework and not the guidance.”
No single operative rule is articulated. The order does not explain whether enforcement authority depends on a specific juridical act in this case, or whether such acts are dispensable altogether.
What follows as a result
Authority is presumed rather than proved. By failing to settle which attribution model applies, the order renders evidential challenge ineffective. The state need not show how power was lawfully instantiated, only that the system continues to operate. This effectively re-introduces the logic of general warrants, which have been deprecated for centuries in English law.
B4. Misuse of curative doctrine to bypass nullity
What the law requires
Curative doctrine (like typos in names) applies only after a valid legal act has been identified and a defect in its form or expression classified. It cannot cure the absence of jurisdiction or substitute for proof that a lawful act occurred.
What the order does
In response to concerns about the identity of the court, the order invokes curative reasoning:
“any error as to the name of the court would not invalidate the jurisdiction…”
The order does not classify the alleged defect (naming, constitution, or existence), nor does it establish that a valid court existed whose acts might be cured. Curability is assumed in advance of validity — but you cannot “cure” something that did not exist in the first place.
What follows as a result
Nullity is never tested as a hypothesis, even though it fits the facts. Curative doctrine is transformed from a limited remedial principle into a mechanism for avoiding foundational inquiry altogether, effectively conjuring existence out of nowhere.
B5. Exhaustion and alternative remedies applied as absolute bars
What the law requires
Claimants have to exhaust alternative remedies before invoking judicial review. Exhaustion doctrines presuppose the existence of a valid authority whose decisions can be challenged within an alternative forum. They cannot apply where the very existence of that authority is disputed.
What the order does
The order relies on the general proposition that:
“Judicial review is a remedy of last resort.”
It does so without identifying any alternative forum capable of determining the jurisdictional issue, and without addressing the fact that any such forum would itself presuppose the authority in dispute. Furthermore, appeal was pursued by way of Case Stated but was not processed, rendering any purported alternative remedy illusory in practice.
What follows as a result
Exhaustion is treated as absolute, even though its application depends on resolving the very question being excluded. Procedural doctrine assumes what it should be testing — a circular logic used to exclude review of the foundational issue.
B6. Permission-stage overreach into merits determination
What the law requires
The permission stage exists to screen out unarguable claims, not to determine disputed legal questions conclusively. Serious jurisdictional issues must proceed to adjudication unless plainly hopeless.
What the order does
The order uses permission-stage reasoning to make substantive findings on jurisdiction, attribution, and evidential sufficiency. These matters are disposed of through assertion rather than analysis. Yet the point of the claim was to create space for those matters to be properly tested in another forum (a Part 8 claim), conserving the status quo on enforcement until it was properly argued and adjudicated.
What follows as a result
Permission becomes a mechanism of summary determination, acting as a gatekeeping function against challenges that might expose ultra vires acts or structural defects in enforcement authority. The claimant is denied the adjudication that judicial review exists to provide.
B7. Inadequate reasons and conclusory reasoning
What the law requires
A refusal of permission must give sufficient reasons to explain why a claim is unarguable. Conclusory statements and bare statutory citation are insufficient where foundational issues are raised.
What the order does
Key conclusions are expressed in formulaic terms (“not arguable”) without analysis. Statutory powers are cited without application to the facts of the case.
What follows as a result
The claimant — and any reviewing court — is left unable to understand how the decisive conclusions were reached. The reasoning lacks the transparency required of lawful adjudication.
B8. Adoption of defence positions without scrutiny
What the law requires
Where competing submissions are made, the court must engage with them. It cannot simply adopt one party’s narrative without addressing contrary argument.
What the order does
The order reflects the Defence’s position alone, particularly on jurisdictional and evidential claims. The order does not engage with the claimant’s Reply, despite it directly addressing the points relied upon by the Defendant.
What follows as a result
Adjudication collapses into endorsement. The appearance of reasoned decision-making is maintained, but the substance of adversarial scrutiny is lost.
B9. ECHR Article 6 displaced rather than engaged
What the law requires
Article 6 of the European Convention on Human Rights (ECHR) guarantees a practical and effective right of access to a court. Where access to adjudication is repeatedly blocked, this must be confronted directly.
What the order does
Article 6 concerns are displaced by procedural doctrine. No assessment is made of whether the claimant had any realistic opportunity to have the jurisdictional issue determined.
What follows as a result
Access to justice exists in theory but not in practice.
B10. Costs imposed without resolving legality
What the law requires
Costs should not penalise the raising of unresolved jurisdictional questions.
What the order does
Following refusal of permission, the order imposes costs:
“the Claimant must pay the Defendant’s costs…”
Yet the legality of enforcement — the very basis of the claim — was never determined.
What follows as a result
Financial pressure reinforces procedural closure, discouraging scrutiny of authority.
Closing clarification
The procedural mechanics of judicial review were formally observed: permission was considered, reasons were given, and renewal was available. The order itself is therefore not void. What it does instead is evade adjudicating the possible nullity of the conviction whose enforcement is being challenged.
The defects identified here do not arise because the outcome was adverse, nor do they imply bad faith. They arise from how discretion was exercised when authority itself was put in issue.
The order is unlawful not because it refused permission, but because it did so without determining the foundational questions on which lawful enforcement depends.