England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		15 January 1999

THE LORD CHIEF JUSTICE: This appeal was last before the court on 16 December 1998 when the court heard argument on behalf of the appellant and the Crown. It appeared to us that the appeal raised an issue of some difficulty and general significance. We accordingly adjourned the hearing of the appeal in order to invite the Attorney General to instruct an amicus to assist us on the issue. This the Attorney has kindly done, and we are grateful for the assistance we have received from Mr David Perry. On that occasion a judgment was given summarising the outline facts and the issues. We incorporate the judgment which we gave on that occasion.

On 3 August 1998, at the Central Criminal Court, the appellant was convicted on an indictment which charged him with doing acts tending and intended to pervert the course of public justice. The particulars of that offence were that:

".... between the 1st day of January, 1993 and the 5th day of May, 1993 with intent to pervert the course of public justice [the appellant] did a series of acts which had a tendency to pervert the course of public justice, in that he made arrangements for, and gave assistance in, the flight from the United Kingdom of one Asil NADIR, knowing that the said Asil NADIR was due to stand trial on criminal charges and that the said Asil NADIR was prohibited, by reason of his bail conditions, from leaving the United Kingdom."

The appellant appeals against that conviction by leave of the single judge.

On 16 December 1990 Mr Asil Nadir, whose name is familiar to everyone, was charged with a number of offences of theft and false accounting. He appeared in the Bow Street Magistrates' Court and on 17 December 1990 was remanded on bail. The conditions of his bail included a condition that he should deposit £2m; that he provide five sureties in the sum of £1.5m; that he live and sleep at a named London address; and that he surrender his passport and make no application for other travel documents. The grant of bail was continuous so long as the proceedings remained in the magistrates' court, and extended until Mr Nadir first surrendered to the custody of the Crown Court. Pursuant to those bail conditions a surety named Guney signed a form of recognisance whereby he bound himself to procure the surrender of Mr Nadir to the custody of the court in the sum of £1m. Mr Nadir, on 25 October 1991, was charged with further offences and Mr Guney continued as surety. On 7 February 1992 the charges against Mr Nadir were transferred to the Central Criminal Court and the proceedings were assigned to Tucker J. An important stage in that trial took place before Tucker J on 22 June 1992. He was sitting at Chichester Rents, an unofficial court room which is not laid out or constructed in the manner of a more formal court room. The hearing however was held in that court and preparatory orders were made for the trial.

In the course of those proceedings Mr Nadir was arraigned and pleaded not guilty. It seems that at no stage during that hearing was any reference whatever made to Mr Nadir's bail. Because no reference was made, Mr Guney was not present and was not asked to give any further recognisance or undertaking for the appearance of Mr Nadir on any future date, nor was his recognisance formally discharged.

The reason for the question of bail and of Mr Guney's undertaking being ignored was simply that counsel both for the Crown and for the defence agreed that it was unnecessary for Mr Nadir to surrender to the custody of the court on that occasion and they believed that the effect of that agreement was to continue the existing bail arrangements without the need for any further order. The judge, to whom this matter was not expressly mentioned, shared a belief that, in the absence of any further order, the existing arrangements would continue.

It now is plain from the decision of the House of Lords in R v Central Criminal Court, ex parte Guney [1996] AC 616, [1996] 2 Cr App R 352, that counsel, the judge, the defendant Mr Nadir, and Mr Guney were all labouring under a misapprehension as to the legal effect of what took place on 22 June. As Lord Steyn, giving the unanimous decision of their Lordships, said at pages 622G and 357E:

"It is imperative that there should be an objectively ascertainable formal act which causes a defendant's bail to lapse at the beginning of a trial. In my judgment that formal act can only be the arraignment of a defendant. The arraignment of a defendant involves (1) calling the defendant to the bar by name; (2) reading the indictment to him; (3) asking whether he is guilty or not: Archbold: Criminal Pleading, Evidence and Practice, (1995 ed., vol 1), p1/465, para 4-84. When a defendant who has not previously surrendered to custody is so arraigned he thereby surrenders to the custody of the court. From that moment the defendant's further detention lies solely within the discretion and power of the judge. Unless the judge grants bail the defendant will remain in custody pending and during his trial. This is a readily comprehensible system which causes no problems for the administration of justice."

Thus the plain effect of that decision is that, whatever anyone thought, Mr Nadir's arraignment on 22 June had the effect as a matter of law of constituting his surrender to the custody of the court with the result that what Mr Guney had bound himself to do he had thereby done and he no longer remained liable under his recognisance unless (which was not the case) it was renewed.

The House of Lords did not have to address the question as to what Mr Nadir's position was when he left the court at the conclusion of the hearing on 22 June. He may have remained technically in the custody of the court. Nothing was, as it would seem, said or done which amounted to the grant of bail either conditionally or unconditionally. It has been suggested that when he left the court on that date he was unlawfully at large, but it would seem to us difficult to impute to him unlawful conduct when he was doing something which was in no way inconsistent with anything which he had been ordered to do or refrain from doing. It may be that he was simply released, not on bail.

A further hearing was held before the trial judge on 17 December 1992. On this occasion there was extensive reference to bail because one of the matters specifically raised with the judge was the desire of Mr Nadir, who was represented by leading counsel, to be permitted to visit Northern Cyprus. Mr Scrivener QC on behalf Mr Nadir made application that the bail conditions which were believed to be in force should be varied in order to permit Mr Nadir, subject to strict conditions, to be allowed to go to Northern Cyprus for a short period. That was an application which the judge expressly rejected when he said:

"This is an application to vary terms of bail to allow the defendant, Asil Nadir, to travel to Northern Cyprus. I have substantial grounds for believing that [if] the variation were granted the defendant would fail to surrender to custody and also that he would interfere with witnesses or otherwise obstruct the course of justice. In my judgment the present conditions of bail are necessary for the purpose of preventing occurrence of those events.

In reaching that decision, I have had regard to the nature and seriousness of the offences and the probable outcome if the defendant were convicted and the strength and the evidence together, of course, with the evidence of all the witnesses called before me, both by prosecution and by the defence. Accordingly I refuse the application to vary the conditions of bail and they will remain as at present."

In giving that ruling the judge was still under the impression (contradicted by the decision of the House of Lords) that the order of bail which had been made some months before in the magistrates' court continued since the judge thought and everyone thought (but wrongly thought) that there had been no surrender to the custody of the court.

The hearing in December lasted some three days and did not end with that ruling of the judge, which we have just recited. Following that, Mr Nadir was invited to plead to various new counts in the indictment. It seems clear that that process amounted to a re-arraignment. One of the questions which arise is: what was the legal effect of that re-arraignment?

It seems that there were further applications to the trial judge, but at none of them was any reference made to bail and Mr Nadir, as a matter of fact, remained a free man: he was not thereafter in custody unless he remained technically so.

The trial was set for 13 September 1993, but on 4 May 1993 Mr Nadir left this country and went by an indirect route to Northern Cyprus. This is where the appellant comes into the story because it was admittedly he who was instrumental in arranging Mr Nadir's flight from an airport in this country to Beauvais in Northern France. It is not in issue that arrangements were made for an executive jet to fly Mr Nadir by this indirect route to Northern Cyprus. The outcome, as a matter of fact, is that Mr Nadir never returned to this country to stand his trial, which was accordingly aborted.

It is in those circumstances that the charge against the appellant was laid.

Viewing the matter in broad common sense terms, one can see an obvious merits basis upon which it could be said that the appellant had committed an offence, since it appears that he clearly understood that Mr Nadir was not permitted by the court to leave this country, but nonetheless he took it upon himself to facilitate that result. Whatever his understanding of the technicalities, he made no bones at his trial about the fact that he did know that Mr Nadir's passport remained in the hands of the authorities and that the court was not willing that he should leave the jurisdiction.

There are nonetheless questions which arise on the way in which this indictment is framed and the evidence called to support it. Mr Martin-Sperry on behalf of the appellant makes a series of submissions. Summarising those very shortly, he submits that if all the Crown can prove is that the appellant took action which involved a risk that Mr Nadir would not return, that was not an act having a tendency to pervert the course of justice, and in any event there was nothing to suggest that the appellant had an intention to pervert the course of justice, which was what was charged against him. Alternatively, he submits that it was incumbent upon the Crown to show that Mr Nadir was granted bail subject to a condition that he should not leave the jurisdiction and that such condition remained in force in May 1993 when the act charged against the appellant took place. Mr Martin-Sperry submits that there was, as a matter of fact, no grant of bail to Mr Nadir on 22 June because of the misapprehension under which everyone laboured, and moreover, that there was no grant of bail on 17 December either. He submits that the passage that we have quoted from the ruling of the judge did not amount to a grant of bail but that, even if it did, that grant of bail came to an end on the re-arraignment of Mr Nadir and that there was thereafter no grant of bail. Accordingly, Mr Martin-Sperry submits that the Crown are unable to show that there was a breach of any existing or valid bail conditions.

Thirdly, but perhaps less persuasively, Mr Martin-Sperry suggests that the judge was wrong to deny him the opportunity to make submissions on issues of fact relating to the question whether or not, after June or after December, Mr Nadir was on bail.

It appears to us that the issue argued in this appeal is one of some very considerable general significance regarding the grant of bail. On the one hand we have difficulty in accepting, as Mr Paton for the Crown submits, that there was here what he suggested in answer to the court amounted to a constructive grant of bail. On the other hand, there is difficulty about accepting that after June or after December Mr Nadir was subject to no order of the court at all, although that may be the true interpretation.

Having heard argument from both parties and the amicus today, we are satisfied that the crucial question at the heart of the appeal is: what was Mr Nadir's legal position following his re-arraignment in court before Tucker J in December 1992? It seems that there are four possible answers. The first possible answer is that he was on bail. That possibility we reject. Bail is now governed by the Bail Act 1976, which clearly envisages the grant of bail by a court as comprising a judicial decision and a judicial act. So much appears, for example, from section 3(1) and (8) of the Act and subsection (1) of section 4. It is also plain that the Act envisages the making of a formal record of the grant of bail, as provided by section 5. We understand that there was no such record in this case for the very good reason that neither the court nor the parties conceived that a grant of bail was necessary, and no grant of bail was in fact intended. Had a grant of bail been intended it seems quite clear that conditions would have been imposed, including the provision of a surety. But Mr Guney was never approached to renew his undertaking because everybody, including he, thought that he remained bound. So it is in our judgment clear that Mr Nadir was not on bail after his arraignment in June, nor after his re-arraignment in December.

On one view that conclusion may be enough to support the appellant's primary argument, but we should briefly consider the other three possibilities.

The second possibility is that Mr Nadir was unlawfully at large. That possibility we also reject. Mr Nadir could only, we consider, be unlawfully at large if his presence in the community involved a breach of some law or order of the court. In our view it did neither. When he walked out of court following his re-arraignment, with the full acquiescence of all involved, it would in our judgment be far-fetched in the extreme to suggest that he was acting unlawfully.

The third possibility is that he remained technically in the custody of the court. That possibility derives some possible support from a literal reading of the House of Lords' decision in R v Central Criminal Court, ex parte Guney (supra), where at page 622H Lord Steyn said:

"Unless the judge grants bail the defendant will remain in custody pending and during his trial."

Having concluded that in this case there was no grant of bail, the possibility would appear to exist that he remained in custody. We note from Director of Public Prosecutions v Richards [1988] QB 701, 711, that it has been accepted as possible for a defendant to be in the custody of the court, although outside the court room and in informal surroundings.

Mr Perry accepts the possibility that Mr Nadir remained technically in the custody of the court, and that appears to us to be a possible view of the facts. We bear in mind that in other contexts it is possible for a person to be technically in custody although not physically so, as where, for example, a prison inmate is released on an unaccompanied home visit or is permitted to perform unsupervised employment outside the prison. There is of course an obvious contrast between a case of that kind where the release is strictly defined and the wholly undefined and unregulated character of Mr Nadir's position. But it is the case that he surrendered to the custody of the court on two occasions and it is also the case that he was never formally released.

The fourth possibility is that Mr Nadir was neither on bail, nor in custody, nor unlawfully at large, but was the subject of an indictment and liable if he did not attend his trial to be compelled to do so. Mr Perry submits that there has always been a category of those not on bail or in custody, and in support of that submission draws our attention to section 3 of the Indictable Offences Act 1848, section 13 of the Courts Act 1971 and section 80 of the Supreme Court Act 1981. Prospective defendants would regularly fall into this category, he suggests, if they were the subject of a voluntary bill of indictment which would obviate the need for committal proceedings at which orders for bail or remand in custody would commonly be made. It may be that this is the most apt category in which to place Mr Nadir following his re-arraignment, but it is in our judgment unnecessary for us to choose between that possibility and the third which we have considered.

The overriding question for our consideration is whether in the light of that consideration this conviction is safe. We note that the indictment as framed made express reference in the particulars of offence to the bail conditions. We have now concluded that there were no bail conditions, but they were an ingredient of the offence as charged, although not proved. It is suggested that we could now substitute an alternative conviction for attempting to do what was alleged by virtue of section 6(3) of the Criminal Law Act 1967 and section 1(1) and (2) of the Criminal Attempts Act 1981, and our attention has been drawn to the House of Lords' decision in R v Shivpuri [1987] AC 1. Mr Perry is, we accept, correct to suggest that by virtue of section 6(4) of the Criminal Law Act 1967 that such an alternative conviction could be recorded without amendment of the indictment.

We have, however, to bear in mind that the indictment on which this appellant stood trial represented the second version of the indictment preferred by the Crown and was no doubt substituted for the first version on the assumption that it presented a more water-tight case. The first version made no reference to bail conditions and we feel sure that the Crown acted advisedly in introducing that reference. We note that the issue of bail conditions was the subject of considerable attention during the trial. Mr Martin-Sperry for the appellant made submissions on which the trial judge, the Recorder of London, gave a ruling in these terms:

"Two submissions were made by Mr Martin-Sperry on behalf of the defendant. The first is that as a matter of law the prosecution cannot prove what they allege in the indictment. The prosecution alleges that the defendant knew inter alia that:

'Asil Nadir was prohibited by reason of his bail conditions from leaving the United Kingdom.'

The submission which is made is that as a matter of law Mr Nadir had no conditions attached to his bail, even although everyone concerned in the trial, including Nadir himself, his legal advisers and the judge, thought that there were a number of conditions imposed on him, including the requirement for a surety. So it is argued that Mr Dimond could not have known about a condition which did not in law exist."

The Recorder considered that submission at length, and at page 6 of the ruling said:

"It is clear to me on the facts that I have rehearsed that on 17 December Mr Nadir, both in law and in fact, was allowed to leave the court on conditions relating to residence, passport and travel documents which had been then considered by Mr Justice [Tucker] during the application to vary. Mr Justice [Tucker] was effectively granting Mr Nadir bail, having specifically considered the question of whether he should have his passport back and whether he should suspend the condition of residence and the restriction on obtaining travel documents for the duration of a short time abroad. He decided in a reasoned ruling to refuse the application.

I therefore find that as a matter of law Mr Nadir was subject to those restrictions on travel out of the country made by due order of the Court on 17 December 1992 and that they still applied on 4 May when Mr Nadir left the country. Mr Martin-Sperry's first submission is accordingly rejected."

Mr Martin-Sperry did not however leave the matter there. He sought the judge's leave to address the jury concerning the issue of bail conditions. He very properly raised this question with the judge, who ruled in clear terms that Mr Martin-Sperry might not do so. At page 5 of his second ruling he said:

"You will remember that the basis upon which I put my ruling was whatever the position was between 22 June and 17 December, it changed on 17 December because the court dealt specifically with the topic of bail, through the variation and therefore my conclusion was, as a matter of law, that whatever the position had been before 17 December, Mr Nadir left court on the clear understanding that he was on bail, with those conditions namely: residence, passport in the hands of the police, no travel documents."

The jury were accordingly not addressed on that question.

When it came to the summing-up the judge was, consistently with his earlier rulings, very clear in his direction to the jury. At page 8 he gave a clear direction on the conditions to which Mr Nadir was subject following the hearing in December. At page 11 of his summing- up he returned to that subject. He then said:

"I have already made clear that as a matter of law, on 4 May, the defendant, Mr Nadir, was on bail in the terms which had been imposed by Mr Justice [Tucker] in the passage to which I have referred."

At page 13 of his summing-up he reiterated the same point.

It seems to us that the prosecution having nailed their colours very firmly to the mast, it would at this stage be unfair to attempt to redraw the indictment. We note both that no such application was made or suggestion advanced at the first hearing of the appeal, and also that counsel for the Crown has advanced this possibility with very muted vigour today.

This is, and was, on any showing a very unusual offence. If one were to attempt to re-read the indictment in terms of an attempted offence it is not at all clear to us how it would read.

Although there were other arguments that Mr Martin-Sperry advanced before us on the earlier hearing, we think it unnecessary to consider those in detail. We observe that they would in our judgment stand a poor chance of succeeding on their own. As it is, the appellant may well consider himself in the event somewhat fortunate, but in our judgment the conviction as it stands is unsafe. We do not think it right to substitute an alternative conviction. We accordingly allow the appeal, quash the conviction and order the discharge of the appellant.

_____________________________________