England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		9th April 1997

MR JUSTICE ASTILL: On the 2nd January 1996 a defendant name Bikha who lived in the Netherlands appeared before Dover Magistrates Court charged with facilitating the illegal entry of one named Singh. He was remanded in custody for committal for trial. There were several further remands in custody and eventually on the 14th February 1996 Bikha applied for bail which was granted subject to a surety to be taken in the sum of £5000.00 and the depositing of £5000.00 as security. The applicant was accepted as the surety and in his recognisance acknowledged that he understood the liability to pay that amount if Bikha did not surrender to custody before the magistrates on the 13th March 1996 and to the custody of the magistrates court at every time and place to which, during the course of the proceedings, the hearing may from time to time be adjourned and to the custody of the Crown Court "until case disposed of". Those words have a particular significance in this application.

The Defendants security of £5000.00 was provided by this applicant.

On the 13th March 1996 Bikha surrendered to his bail and he was committed to the Crown Court for trial. He was released on bail subject to the same two conditions that had applied before and again the applicant signed and dated the recognisance. The magistrates court fixed a plea and directions hearing date in the Crown Court for April 1996.

On the 19th April 1996 the plea and directions hearing took place in the Crown Court. Bikha appeared and was arraigned on an indictment charging the offence to which he pleaded not guilty. The judge directed that the case should enter the warned list for trial and ordered that bail should continue on the same terms as before. It will I think be of assistance if I recite the relevant extract from the judge's comments.

Judge Rook	He is in custody at the moment?
Mr Webber	No he is on bail.
Judge Rook	On what footing?, I am sorry, I saw him in the dock when I arrived, I assumed he had been brought up in custody.
Mr Webber	There is a security in the sum of £5000.00.
Judge Rook	There is a security?
Mr Webber	Yes, there is a security in the sum of £5000.00.
Judge Rook	There is a surety as well.
Mr Webber	I do not believe so.
Judge Rook	Well it says on the bail form to provide a surety of £5000.00 to be made continuous to crown court until case disposed of and to deposit with the court £5000.00 by way of security.
Mr Webber	In that case there is a misunderstanding on my part. There is a surety, the man that deposited the security is here so he could be taken.
Judge Rook	He does not have to be, it is continuous until disposal.
Mr Webber	I am very grateful.
Judge Rook	The magistrates have very helpfully re-jigged the bail form so it means the re-taking of a surety is obviated.

At the end of this hearing the judge said

"I will say warned list with effect from 10th June and if there needs to be fine tunings, as it were, in between whiles, so be it, and bail as heretofore unless any representations to the contrary. 10th of June it is then with effect from".

On the 5th August 1996 the trial was listed but Bikha did not attend, the proceedings were adjourned and a warrant was issued for his arrest. The applicant had not been given notice of this first hearing date by the Crown Court.

On the 27th August 1996 Bikha again failed to appear but the applicant attended. The judge issued a fresh warrant for the Defendants' arrest and without further inquiry ordered the forfeiture of the £5000.00 cash security which had been deposited on the 14th February 1996. He told the applicant that on the 25th September 1996 further consideration would be given to the forfeiture of the recognisance and the delay would allow time for the execution of the warrant if that was possible. The matter came back before the court on the 25th September 1996 when consideration of forfeiture was adjourned so that the Applicant could be represented. On the 22nd November 1996 the matter was heard by HHJ Croft Q.C. who held that the magistrates had the power to order that a surety was to continue beyond arraignment until the final disposal of the case in the Crown Court. He found as a fact that the applicant had known of the intended trial date of the 5th August 1996 although he accepted that he had not been informed of that date by the Crown Court in accordance with the best practice recommended by the Crown Court Manual. The learned judge ordered the forfeiture of £3000.00 of the £5000.00 surety because he found that there was no "positive fault" attributable to the applicant.

Mr Fortune's submissions are twofold. The first concerns the applicant as surety, with a subsidiary submission, that if he was properly regarded as a surety, there was a failure to inform him of the date of trial and that failure should have led to the judge to exercise his discretion in his favour and to make no order against him. The second concerns the order of the magistrates that the defendant provide security in the sum of £5000.00 which was in fact provided by this applicant.

Surety

When the matter came before the court on the 19th April 1996 at the plea and directions hearing Judge Rook made an order using the words that I have already referred to stating that bail should be as "heretofore". Mr Forturne submits that the judge erred in his reliance upon the continuous nature of the surety as expressed by the magistrates. His submission is that at that stage the learned judge should have considered whether a surety was necessary and if it was, an inquiry should have been made as to whether the applicant was both willing and suitable to continue as the surety. In other words a new order should have been made. Because that was not done, Mr Fortune submits that when the defendant surrendered to the custody of the crown court on the 19th April 1996 the obligations of the applicant as a surety ceased and never resumed because no new order was made.

Mr Calvert-Smith Q.C. referred this court to the terms of section 6 of the Magistrates Court Act 1980 and in particular section 6(3)(b)

"......the court may commit a person for trial - (b) on bail in accordance with the Bail Act 1976,

(b) that is to say, by directing him to appear before the Crown Court for trial".

Mr Calvert-Smith submits that the words "for trial" mean until the beginning of the trial. Therefore the bail granted by the magistrates and the condition that this applicant should be a surety remained in existence until the trial of the defendant began. Mr Calvert-Smith further submits that the words of the judge "bail as heretofore unless any representations to the contrary" at the end of the 19th April 1996 hearing did not amount to the making of a new bail order but were a comment on the fact that bail would continue unless any representations were made.

I am satisfied that the judge was making a new bail order on the 19th April 1996. The defendant had surrendered to the custody of the Crown Court and it was necessary for the judge in those circumstances to consider bail. I do not accept that the words "for trial" appearing in section 6(3)(b) of the Magistrates Court Act 1980 and again in section 128(4)(c) of that Act mean bail until the trial in the Crown Court begins. Those words mean "for the purposes of trial" and the first appearance of a defendant in the Crown Court at which he surrenders to custody is in my judgment an appearance before the Crown Court "for the purposes of trial". The point was dealt with by Sir Thomas Bingham M.R. (as he then was) in R v Central Criminal Court ex parte Guney 1995 2 Cr.App.R. 350 at page 353A. He said :-

"the grant of bail was continuous so long as the proceedings remained in the magistrates court, and extended until [the named defendant] first surrendered to the custody of the Crown Court".

He was then dealing with the exercise by the magistrates of powers conferred by section 3 of the Bail Act 1976 and section 128 of the Magistrates Court Act 1980 which apply to the present case. The matter was considered by the House of Lords in that same case reported at 1996 2 Cr.App.R. 352 at page 357. Lord Steyn said "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 the 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... 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 and comprehensible system which causes no problems for the administration of justice".

That, so it seems to me, is the clearest statement that at least at arraignment any bail granted by the magistrate ceases if the defendant surrenders himself to custody. In my judgment that applies to any appearance before the Crown Court where a Defendant surrenders to Custody.

Further support for that is to be found in section 6(4) of the Magistrates Court Act 1980 which states:- "Where the court has committed a person to custody in accordance with paragraph (a) of subsection (3) above, then, if that person is in custody for no other cause, the Court may, at any time before his first appearance before the Crown Court, grant him bail in accordance with the Bail Act 1976 subject to a duty to appear before the Crown Court for trial".

I am satisfied that on the 19th April 1996 the judge made a new order for bail as was required but failed to consider the question of whether a surety was necessary and therefore whether this applicant was suitable and willing so to act. Mr Calvert-Smith realistically concedes that if bail was considered and a new order made there was an obligation to consider the question of a surety if a surety was to be a condition . He concedes that in principle bail cannot be granted in parts. With that I agree.

The learned judge, not having considered the question of taking a surety on the 19th April 1996, it follows that the obligations of the applicant as a surety ceased when the defendant surrendered to custody on that date. It was not therefore lawful to order the forfeiture of £3000.00 of the £5000.00 recognisance.

I would grant the Application to that extent.

Security

Mr Fortune submits that when bail is granted section 3 of the Bail Act 1976 demands that the court considers whether a defendant is required to give security. On the 19th April 1996 there was a fresh grant of bail and there was no separate consideration of the need for security.

He submits that the words used by the judge on the 19th April "bail as heretofore unless any representations to the contrary" were not enough for an order for security to be made. He says that security is a condition of bail and there should have been a full inquiry concerning the need for security because an order can only be made if the terms of section 3(5) of the Bail Act are satisfied. Mr Fortune also submits that the judge should have considered that a third party i.e. in this case the applicant, was providing the money and he should have been asked if he wished to continue and whether he could still provide the money.

I am satisfied that the words used by the learned judge "as heretofore" mean precisely what they say and convey what he intended. In the absence of further representations, he was entitled to continue the security as a condition of bail. The distinction to be drawn between the applicant's position as a surety and his position as a provider of the security funds is that it was the defendant's security and not the applicant's. There was in my view no obligation upon the judge to go further than to invite submissions from the defendant concerning the condition that he the defendant, should provide security. He did that when saying "unless any representations to the contrary". No representations were made by the defendant.

The point was considered in a ruling given by the Recorder of London in R v Nadir at the Central Criminal Court on the 10th September 1996. The learned Recorder was dealing with security given by the defendant but I see no difference in principle because the applicant in the instant case was not the defendant. The learned Recorder said "It has been argued today that there must be a difference between the recognisance and the security, the security having been imposed in a way that does not require those holding it to enter into a recognisance or to bind themselves again". And again later "that there was an error so far as the recognisance is concerned does not mean that here must have been an error in respect of all the other conditions. The same reasons for requiring those conditions were re-asserted by the judge and no one can be in any doubt that he regarded all the conditions as being appropriate and all of them as being applicable and it seems to me that by what happened on that occasion in December any error that may have occurred in June was potentially put right. That is applicable to all but one of the conditions of bail. The one that required a recognisance to be renewed was not put right, but in my judgment the security at least from December of 1992 was re-imposed as a condition of bail and I take the view accordingly that this court has jurisdiction to consider whether or not application for forfeiture ought to be entertained either in whole or in part".

In my judgment that is of assistance because it correctly illustrates the clear distinction between this applicant's position as a surety and his position as the provider of funds. I do not accept that there is any obligation on a judge to make inquiries into the liability of a third party to pay when the obligation belongs only to the defendant. Accordingly I would refuse the application so far as security is concerned.

LORD JUSTICE PILL: I agree.

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LORD JUSTICE PILL: For the reasons given in the judgment handed down, the appeal is allowed in part and dismissed in part.

MR CONLIN: My Lords, in those circumstances I ask that the Order of His Honour Judge Croft QC, made on 22nd November 1996, that the Applicant forfeit the sum of £3,000 be quashed.

My Lord, I make an application for the costs of the hearing before His Honour Judge Croft on 22nd November 1996. I make that application against the Crown on the basis that it is a civil matter, that it is not therefore within the costs in criminal cases, that it is in the discretion of the court, and that it ought to follow the event.

LORD JUSTICE PILL: Miss Coward.

MISS COWARD: My Lord, the Respondents' view is that we should resist this application for costs. The Crown was not at fault in this respect and, as I understand it, the surety was held to have been irresponsible in some respects, so I resist the application.

LORD JUSTICE PILL: However, you accept that it is a civil matter, do you, and so the court has power to make an Order against you?

MISS COWARD: My Lord, yes. As far as the surety is concerned, the Respondents accept that this is a civil matter.

MR JUSTICE ASTILL: The surety was held to be at fault in what way?

MISS COWARD: As I understand it, the surety was held to be at fault in that he was irresponsible and lied to the court.

LORD JUSTICE PILL: Should not costs follow the event?

MISS COWARD: It may well be the case, my Lord.

LORD JUSTICE PILL: Do you have anything to say in reply?

MR CONLIN: My Lords, it is true that he lied to the court, but he was not irresponsible, in my respectful submission; but it ought to follow the event.

LORD JUSTICE PILL: A point of law was involved.

MR CONLIN: My Lord, yes.

LORD JUSTICE PILL: Yes, you may have your costs.

MR CONLIN: My Lords, I am grateful. So far as your decision in relation to the cash security is concerned, may I have your leave to appeal to the House of Lords. I make that application on the basis that it is a criminal matter. The question that I respectfully submit is appropriate is this: Whether full reconsideration should be given to renewal of a cash security obligation previously imposed ----

LORD JUSTICE PILL: Do you have this in writing?

MR CONLIN: I can submit it in writing. I have not at the moment, my Lord.

LORD JUSTICE PILL: Start again, please.

MR CONLIN: Whether full reconsideration should be given to a renewal of a cash security obligation previously imposed and deposited at the Magistrates' Court when the question of bail is reviewed on arraignment at the Crown Court. Shall I repeat it again, my Lord?

LORD JUSTICE PILL: Yes, please.

MR CONLIN: Whether full reconsideration should be given to a renewal of a cash security obligation previously imposed and deposited at the Magistrates' Court when the question of bail is reviewed on arraignment at the Crown Court.

LORD JUSTICE PILL: So you want us to certify and give leave to appeal.

MR CONLIN: Yes, my Lord.

MR JUSTICE ASTILL: You accept security from a normal condition of bail, do you, in that sense? Because the judgment was given on the basis that the judge said "bail as heretofore" and invited submissions to the contrary and thereby was giving bail on the same conditions as before. That is the basis of the judgment. Therefore, in order to plead your question you would have to say that the security is different from any other condition.

MR CONLIN: My Lord, yes.

MR JUSTICE ASTILL: That must be the basis of your question.

MR CONLIN: That is basis of the question. I accept what your Lordships have said in relation to the basis of your decision, yes.

MR JUSTICE ASTILL: So your question is confined not to conditions but that to security only.

MR CONLIN: My Lord, yes.

MR JUSTICE ASTILL: On what basis?

MR CONLIN: My Lord, simply on the basis that I have been invited to make that question by counsel who appeared on the matter.

LORD JUSTICE PILL: You justify it. On what basis is security different from any other condition to justify your question?

MR CONLIN: My Lord, in the ordinary course of events it would be difficult for me to distinguish it other than in the circumstances of this case where the security was provided by the Applicant and not by the defendant.

MR JUSTICE ASTILL: You are saying that the court should have regard to the fact that a third party was involved?

MR CONLIN: My Lord, yes.

LORD JUSTICE PILL: That does not emerge from the question.

MR CONLIN: My Lord, I can certainly put that into the question.

LORD JUSTICE PILL: Let us hear Miss Coward's submission.

MISS COWARD: My Lord, the Respondents agree that this is, indeed, a criminal matter, but the Respondents' view is that this is not a point of public importance because of the factual conclusions that your Lordships came to at page 7 of the judgment, that being that the learned judge was making a new bail Order.

LORD JUSTICE PILL: Yes, thank you. Is there anything in reply, Mr Conlin?

MR CONLIN: My Lords, only to put in "... of a third party previously imposed ..." after "... of a cash security obligation...".

LORD JUSTICE PILL: We have regard to what we have heard you say orally as to the proposed question and now as amended, but we decline to certify.

Does anything else arise?

MR CONLIN: Nothing else, my Lord.

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