England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE DYSON: This an application for judicial review of the decision of her Honour Judge Freedman sitting at Harrow Crown Court on 9 September 1997, whereby she ordered the estreatment of £150,000, being part of the recognisance entered into by the applicant in the sum of £200,000 in respect of her husband, to whom I shall refer as "the defendant".

2. The defendant is a citizen of the United Arab Emirates and a native of Abu Dhabi. At the time of his arrest on 28 September 1996 he had a prosperous trucking business in Abu Dhabi and was a man of some wealth. As well as their residence in Abu Dhabi, he and his wife owned their matrimonial home in Milton Keynes. He and the applicant had been married for 16 years. She was a partner in the trucking business. She also worked as an aide to one of the Emirate's Royal families, for which she received a substantial income. It is also of some relevance to this application that the defendant is a serving officer in the Abu Dhabi Army.

3. On 28 September 1996 the defendant was charged with the offence of unlawfully wounding a young woman with intent to do her grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861. He was detained in custody. On 30 September he appeared before the Milton Keynes Magistrates' Court, where he was granted bail subject to conditions of residence, daily reporting, the surrender of his passport to the police, and the provision of a surety with a recognisance in the sum of £200,000. That surety was provided by the applicant who gave evidence on oath before the justices as to her means.

4. On 9 December the justices varied the defendant's bail conditions so that he could return to the United Arab Emirates in order to attend to his business affairs. On 16 December he was committed for trial to the Aylesbury Crown Court. The surety provided by the applicant was retaken.

5. As a serving officer in the Abu Dhabi Army, he was required by the military authorities to report to them on 4 January 1997. He failed to do so, and on 2 February was treated as a deserter.

6. Meanwhile, on 27 January, he appeared at Aylesbury Crown Court for a plea and directions hearing. He pleaded not guilty to the indictment and the case was adjourned for trial. He was remanded on bail, subject to the same conditions as before, including the condition of a surety. The applicant signed the surety forms, but did not give evidence. There is an issue as to whether her failure to give evidence invalidated her recognisance.

7. On 5 March the defendant returned to Abu Dhabi. On his return he was arrested by the Abu Dhabi authorities for desertion from the armed forces, and held in custody for a short period. Upon his release he was subject to travel restrictions and not allowed to leave the country.

8. On 11 April the defendant's case was transferred to Harrow Crown Court and the date of 30 June was fixed for the trial. On 27 June the defendant applied for the fixture to be broken. The court was told that he was a serving member of the armed forces in Abu Dhabi and had been detained since April. His application was refused. The applicant, who was present, was informed by the judge that she should attend court on 30 June and that she should be legally represented, so that the matter of her surety could be considered.

9. On 30 June the defendant's case was listed for trial. He failed to attend and a warrant was issued for his arrest, not backed for bail. The judge agreed to adjourn the matter until 1 September. Consideration of the estreatment of the applicant's recognisance was adjourned to the same date. The applicant was directed by the judge to have in her possession on that date a banker's draft made payable to Her Majesty's Paymaster General in the event of estreatment.

10. On 3 September the defendant's case was relisted for trial before Her Honour Judge Freedman. Once again the defendant failed to attend. The court was told that he was no longer being held in custody in Abu Dhabi, but that he was still subject to travel restrictions which prevented him from leaving the country. An application was made on behalf of the defendant for the case to be adjourned again. A similar application was made on behalf of the applicant concerning the question of estreatment. The judge refused both applications and proceeded to consider whether the applicant's recognisance should be estreated. The applicant gave evidence on oath. Counsel representing her made submissions. He cited a number of authorities, including R v Maidstone Crown Court, ex parte Jodka (The Times, 13.6.97). The judge decided to adjourn the hearing until 9 September for a transcript of that judgment to be obtained.

11. On 9 September the judge, having considered a full transcript of that decision, decided that the applicant's recognisance was valid and binding. She found the applicant culpable and ordered the estreatment of the recognisance in the sum of £150,000, to be paid within a period of three months, with nine months' imprisonment to be served in default.

12. On 10 September the defendant sought an audience with a senior officer in Abu Dhabi. He was then given leave to return to the United Kingdom. He arrived on 23 September and was arrested.

13. It is necessary to consider the judge's decision of 9 September in a little detail. She formed an extremely unfavourable view of the applicant. She described her as "an intelligent woman who was doing her best to avoid being frank with the court". She was not therefore "in a position of not being culpable". This conclusion at page 8 of the judge's ruling seems to have been based on a finding that the applicant had been less than frank with the court about whether she had given evidence as to her means to the justices on 30 September 1996; whether she had understood the significance of being a surety; and the extent of her contact with the defendant after he had arrived in Abu Dhabi. The judge returned, however, to the question of culpability at page 10 of the transcript of her ruling. Having referred to a number of authorities she said at page 11 that the applicant was culpable because

14. It will be seen therefore that in this part of the ruling the judge found the applicant culpably responsible for the applicant's failure to surrender to his bail. The judge went on to consider the applicant's ability to pay. She found that the equity in the matrimonial home was worth £100,000; the equity in the other property was worth £27,000; and there was also a motor vehicle. Thus it was that she arrived at the figure of £150,000.

15. Rule 21(1) of the Crown Court Rules 1982 (SI 1982 No 1109) provides that, where a recognisance has been entered into in respect of a person granted bail to appear before the Crown Court and it appears to the court that a default has been made in performing the conditions of the recognisance, the court may order the recognisance to be estreated. The word "default" in rule 21 has been held to mean "failure": see R v Warwick Crown Court, ex parte Smalley [1987] 1 WLR 237, where this court held that the rule is to be construed as giving the Crown Court jurisdiction to estreat recognisances on the failure of the surety to fulfil his obligation to ensure that the defendant surrenders to his bail. It is therefore the failure which causes the estreatment, and not the reasons for the failure to fulfil the obligation. If there has been such a failure, the court will then consider the merits and decide as a matter of discretion whether or not to estreat the recognisance.

16. The most recent authority in which the court has considered the correct approach to the estreatment of recognisances in general, and the relevance of culpability in particular, is the decision of the Court of Appeal in R v Maidstone Crown Court, ex parte Lever and Connell [1996] 1 Cr App R 524. In that case the two applicants stood surety in the sums of £19,000 and £40,000 respectively. The defendant failed to appear at trial. The judge ordered the applicants to forfeit £16,000 and £35,000 respectively of their recognisances, although he found neither of them to blame. It was submitted that in view of the applicants' lack of culpability the judge's decision was perverse. At page 526 Butler-Sloss LJ said:

17. Later Butler-Sloss LJ referred to what she described as the "wise observation" of Lord Widgery CJ in R v Southampton Justices, ex parte Corker (1976) 120 SJ 214:

18. At page 529C Butler-Sloss LJ added:

19. Hoffmann LJ, at page 530B, said:

20. It is clear from authorities such as ex parte Smalley (supra) and R v Reading Crown Court, ex parte Bello (1991) 92 Cr App R 303, that in an exceptional case, where the surety is entirely blameless and the failure of the defendant to surrender to bail is wholly outside the control of, and unforeseeable by, the surety the court may in the exercise of its discretion remit the whole or a substantial part of the amount of the recognisance. These two authorities were not cited in ex parte Lever and Connell , but I do not believe that what I have just said is inconsistent with what the Court of Appeal said in that case.

21. Mr Webster makes four submissions on behalf of the applicant. His first submission is that the applicant's recognisance was not properly entered into at the plea and directions hearing on 27 January 1997 because she did not give evidence and no inquiry as to her means was conducted at that time; all that happened was that she signed the surety form in the sum of £200,000.

22. It was clearly right that the defendant's bail fell to be renewed on 27 January since he was arraigned on that occasion. It followed that, if bail was to be renewed, it was subject to the condition that the applicant would be a surety. She would have to enter into a fresh commitment to that effect. This she did by signing the form. In my view the judge was not required to have the applicant sworn and examined again as to her means in circumstances where she was willing to renew her commitment in the same sum as before. Mr Webster relies on section 8(2) of the Bail Act 1976 and the decision of this court in R v Kent Crown Court, ex parte Jodka (supra). In my view neither avails him. Section 8(2) of the Bail Act provides that, in considering the suitability of a proposed surety, regard may be had inter alia to the surety's financial resources. There was no issue as to the applicant's suitability as a surety on 27 January 1997. In any event, section 8(2) is not expressed in mandatory terms. Ex parte Jodka is plainly distinguishable because in that case the surety did not renew his commitment by signing the form when a new order for bail was made.

23. Mr Webster's next submission is that the judge acted in breach of the rules of natural justice when, on 3 September, she refused to adjourn the hearing. It had been made clear at the hearing on 30 June that one of the issues that would be considered at the next hearing would be the possible estreatment of the applicant's recognisance. Accordingly she had more than two months' notice of the hearing. At one stage of the argument on 3 September the judge indicated that she was minded to adjourn the hearing to enable the prosecution to make inquiries as to what had happened to the defendant in Abu Dhabi. When it became clear that the applicant would not co-operate with the prosecution in relation to such inquiries, the judge decided not to adjourn the hearing. It is said that the applicant was not sufficiently prepared for the hearing: for example, she had not brought relevant documents to court. In my view the complaint that the refusal to adjourn was in breach of natural justice is wholly lacking in foundation. The applicant had more than two months' notice of the hearing; she knew precisely what the purpose of the hearing was; she was represented by counsel at the hearing; she gave a good deal of evidence and was able to explain her position fully to the judge. I would reject this submission.

24. Next, it is said that the finding of culpability was unlawful in the sense that there was no evidence on which such a finding could have been based, or alternatively that it was irrational. As has been seen, the judge found that the defendant was either a free agent deliberately refusing to return from Abu Dhabi or was being restrained by the Abu Dhabi authorities in circumstances which were entirely foreseeable when he returned to Abu Dhabi in March, and that in either event the applicant knew (to use the judge's words) "what the score was as well as the defendant". The judge was entitled to make those findings on the evidence and to conclude in consequence that the applicant was culpable in her capacity as a surety. On the judge's findings, therefore, this was a far cry from a case where a defendant's failure to surrender is wholly outside the control of, and not foreseeable by, the surety. In addition, in her evidence the applicant said that she was informed of the defendant's arrest in Abu Dhabi in April. It must have been apparent to her that there was a serious risk that he would not be able to attend his trial in June. However, she made no attempt to withdraw as a surety. Nor was the court informed of the defendant's detention until 27 June. This was another feature of the case which provided the basis for a finding of culpability on the applicant's part in her capacity as a surety. Accordingly I would reject the submission that there was no evidence to support the finding of culpability. It must follow that if there was evidence which could support a finding of culpability, it is not possible to hold that such a find was irrational. For all these reasons I would dismiss this application.

25. MR EVANS: My Lord, may I finally raise the matter of costs? Your Lordship has a discretion about costs and I would invite your Lordship to order costs against the applicant. The application has been brought by the applicant.

26. THE LORD CHIEF JUSTICE: What do you say, Mr Webster?

27. MR WEBSTER: I would have a great deal of difficulty in resisting that application.

28. THE LORD CHIEF JUSTICE: Yes, I am afraid the application must be refused with costs.