This is not a post about David Bain. It just looks that way.

So late last year I posted an inexcusably long, meandering (and, let's be brutally honest, criminally self-indulgent) meditation on Ian Binnie's report on David Bain's "innocence" and Robert Fisher's criticisms of that report. I commenced said post by claiming it represented "an attempt to wipe [the Bain case's] tar from my fur with one last comment on where we are now and how we got to get there."

Right. Like that was ever going to happen. So here we go again.

David Bain's camp have lodged an application for judicial review, challenging Judith Collin's actions since she received the Binnie report last August. I haven't seen the pleadings, but I assume the crux of their challenge relates to the process she followed when first deciding upon, and then asking, Robert Fisher to review Binnie's report.

I'm not going to make any firm prediction about the chances of this claim succeeding - judicial review proceedings are so fact-dependent that I just don't have the appropriate level of insight. Instead, here's something of a primer on the issues involved, with some comments on how matters might (or, might not) play out when this gets in front of a judge.

The initial matter to note is that judicial review is about process, not substance. In other words, a court is not being asked to decide whether or not a given decision or action is right, but rather to look at how the relevant decision was made or the action was taken. So in this context, a court will not be required to assess whether Collins was permitted to obtain a second opinion on Binnie's report (even Binnie himself accepted it was within the Minister's right to seek additional views on the robustness of his conclusions) - much less whether Fisher's criticisms of Binnie's report were well founded.

In other words, this case will not decide whose report is the better one: Binnie's or Fisher's. It will instead be about how Collins went about deciding that it was necessary to get Fisher to have a look at Binnie's report, and how she then asked him to do that job.

So if a judicial review claim is about the process surrounding some decision or action, what does it then involve? Well, there's three questions you have to ask.

First, is the decision or action you want the court to look at one that is amenable to judicial review (i.e. is it "justiciable")?

Second, can you establish that one of the relevant grounds of review apply (i.e. are you able to show the court that there is a problem of a sort that it will take notice of)?

Third, will you be able to convince the court to exercise its discretion to grant a remedy (i.e. even if you can show the court there is a problem of a sort it will take notice of, can you get it to do anything about that problem)?

Again, without wanting to purport to predict how this application for review will play out, here's some thoughts on each of those questions.

On the first question, you might think that the fact that compensation for wrongful imprisonment is ex gratia (i.e. at the Crown's discretion) means that the issue is not one that the courts will involve themselves in at all. Certainly, this is the line David Farrar takes:

The Bain claim for compensation in fact falls outside the Cabinet guidelines. Bain and Karam have asked for Cabinet to use their discretion to give him compensation even though he doesn’t qualify outside the guidelines. It would be highly unusual for the courts to injunct a Minister from reporting an issue to Cabinet involving a discretionary decision.

With respect, this muddles a couple of issues. It may very well be that a court would not "injunct a Minister from reporting an issue to Cabinet involving a discretionary decision", but that's a question about remedies not justiciability (to which I'll get to later). And while a court might not be prepared to review the Cabinet's final decision on granting (or not granting) compensation in a given case (there's a suggestion of this in existing case law - see Akatere v Attorney General), that doesn't necessarily mean that a Minister is free to act in any way she pleases when gathering information to place before the Cabinet.

But for me the best evidence that the process leading to Cabinet's decision on compensation might very well be amenable to judicial review comes from a perhaps surprising source - Fisher's review of Binnie's report. In chapter 7 of his review, Fisher examines several instances where Binnie allegedly makes critical comments about individuals without giving them an adequate chance to respond, and concludes that this action means "that the possibility of successful [judicial review] proceedings by those criticised is a substantial risk."

Now, it would be odd if Fisher believes that a report provided to the Minister in order to help her inform Cabinet is "a[t] substantial risk" of judicial review, but the Minister's actions in deciding what to do with that report are not. Or, at the least, one might see a certain irony in Collins declaring that "The list of errors in Mr Binnie’s report is extensive, and according to Dr Fisher could be vulnerable to judicial review", whilst at the same time asserting that her actions are not justiciable as David Bain's claim "falls outside Cabinet guidelines and is entirely at Cabinet's discretion".

And I'll leave it at that.

On the second question, is there anything about the way that Collins decided a second opinion on Binnie's report was needed, and then commissioned Fisher to conduct it, that might represent a problem in the court's eyes? Well, in my last post on this topic I went through a number of what I saw to be shortcomings in Collins' actions. That she decided a review was necessary after hearing from the Police and Crown Law, but without any input from David Bain or his representatives. That she "prepped" Fisher before he undertook his review of Binnie's report with those institutions' negative comments about it. That it at least appeared that the two of them were already discussing how a new inquiry into David Bain's guilt/innocence should be conducted before Fisher had conducted his peer review of Binnie's report.

The issue then will be whether any of these "shortcomings" amount to a breach of natural justice - either by failing to hear from a party affected by Collins' decision, or by displaying inappropriate bias when deciding what to do. Deciding that gets us deep into both questions of legal duty (what expectation about being consulted could David Bain legitimately have?) and fact-dependent territory (what actually was said to whom and when?). So all I'll say here is that it would not surprise me if a court looked at the way Collins handled the matter and found it to be "unfair", in the sense of breaching one of the requirements of natural justice. But, equally it would not surprise me if a court went the other way. That's the great thing about "natural justice" - it can mean whatever a court wants it to mean.

And I'll leave it at that.

Which then brings us to the third question: even if a court did find that this issue is justiciable, and that Collins did breach some requirement of natural justice, would a court exercise its discretion to grant a remedy? Because in judicial review proceedings you don't have a right to any particular remedy - rather, the court may decide what sort of remedy (if any) is appropriate in the circumstances. And it's here that I think David Bain's camp may face its biggest problem.

Let's say that David Bain successfully convinces a judge that she or he can look at the judicial review claim, and that Collins actually has treated him unfairly (in a legal sense) in the way she went about getting a second opinion of Binnie's report. What could a court do about that? Well, ideally David Bain would like the court to order the Minister to disregard Fisher's report and make a recommendation to Cabinet based on Binnie's report alone. But that's not going to happen, for a couple of reasons.

First, the criticisms of Binnie in Fisher's report can't be magicked away by judicial decree. And as I said in my last post on the topic, I think the core criticism that FIsher makes is a legitimate one. So even if unfairly produced, Fisher's report may still have substance to it that a Minister (and Cabinet) cannot be expected to ignore. Furthermore, a court simply is not in a position to legislate precisely as to how the Minister must go about advising Cabinet on compensation issues. Sure, it may be able to lay down general rules such as "act in a fair way when collecting information to help Cabinet decide what to do". But going beyond that to specifically order the Minister to carry out (or, not carry out) a particular action starts to encroach on territory that the executive has explicitly marked out as its own. And courts ought not to start doing the job of the other branches of government for them.

Which may mean that the only remedy that David Bain can expect to gain is a declaration that the Minister acted unlawfully in her handling of the Binnie report, without any further orders to bind the Minister's next step. Which would then mean that the Minister can continue to say that she regards the Binnie report as flawed and that she wants a new one on the issue. Which is what she was likely to tell Cabinet next week in any case.

Well, wouldn't that then amount to a Pyrrhic victory? Maybe. Or maybe not. Because even if such a finding has limited legal effects, it could still be a pretty strong weapon in an ongoing PR campaign to force the Government's hand on this issue. If Collins is portrayed as having acted unfairly and unlawfully in the way she rejected the Binnie report, then that may help to build public pressure on the Government to "do the right thing" by him. And that may make it politically that much more difficult for it not to.

Is it wrong for the David Bain camp to do so? Well - if the Government wants to retain the power to give (or not give) compensation as its own special discretionary so as to avoid having to pay out "unworthy" candidates, can it really complain when it becomes the target of public campaigns to force its hand? If you don't like the heat, you could always take yourself out of the kitchen by handing the job over to someone else ... .

OK - there you have it. Now, all you JR aficionados out there, have at it. Is David Bain's claim a goer, or dead on arrival?