England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London
		16 January 2001

Tuesday 16 January 2001

1. THE LORD CHIEF JUSTICE: This is now an application for judicial review (previously it was an application for habeas corpus) by Mr John Terence Ellison. Put very briefly, it is contended by Miss Sherwin that the committal in custody of Mr Ellison by the Teesside Magistrates on 27 November 2000 is a nullity because the magistrates had no jurisdiction to do what they did.
2. There is no longer an application for habeas corpus. The reason is that when the matter came before Mr Justice Ouseley on 3 January 2001, it was argued on behalf of the governor of the establishment at which Mr Ellison was detained that, because there was a warrant which was apparently valid upon its face, that was a sufficient return to enable the governor to justify the detention of Mr Ellison. Mr Justice Ouseley in the circumstances therefore gave permission to apply for judicial review, and the matter has since then proceeded as an application for judicial review. On 5 January Mr Justice Ouseley granted bail to Mr Ellison. The bail which he granted was subject to similar conditions to those imposed by the magistrates. That bail, in the absence of any further order, would have continued until the trial of Mr Ellison on a charge of attempted rape. Once bail had been granted, the liberty of Mr Ellison was secured, subject to his complying with the terms of the bail which Mr Justice Ouseley granted. We are told by Miss Sherwin that Mr Ellison has complied with the conditions of the bail since 5 January. That being so, to an extent the question of whether or not Mr Ellison is entitled to judicial review is academic, as long as this court does not interfere with the bail granted by Mr Justice Ouseley.
3. This case clearly demonstrates that the magistrates were under a misapprehension as to how to deal with the situation where a defendant is granted bail by the magistrates or a Crown Court and then does not comply with the conditions of the bail so that he is brought back before the magistrates' court under section 7 of the Bail Act 1976.
4. Section 7 of the Bail Act, so far as relevant, provides:

"(3) A person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court may be arrested without warrant by a constable --

(a) if the constable has reasonable grounds for believing that that person is not likely to surrender to custody;

(b) if the constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions; or

(c) in a case where that person was released on bail with one or more surety or sureties, if a surety notifies a constable in writing that that person is unlikely to surrender to custody and that for that reason the surety wishes to be relieved of his obligations as a surety.

(4) A person arrested in pursuance of subsection (3) above --

(a) shall, except where he was arrested within 24 hours of the time appointed for him to surrender to custody, be brought as soon as practicable and in any event within 24 hours after his arrest before a justice of the peace for the petty sessions area in which he was arrested; and

(b) ....

(5) A justice of the peace before whom a person is brought under subsection (4) above may, subject to subsection (6) below, if of the opinion that that person --

(a) is not likely to surrender to custody, or

(b) has broken or is likely to break any condition of his bail,

remand him in custody or commit him to custody, as the case may require, or alternatively, grant him bail subject to the same or to different conditions, but if not of that opinion shall grant him bail subject to the same conditions (if any) as were originally imposed.

...."

5. Subsection (7) merely deals with situations where custody time limits have expired. In that situation subsections (3)(a) and (c) are to be regarded as omitted. The relevance of subsection (7) in this case is that Mr Ellison was on bail because the custody time limits had expired. There had been a refusal by the Crown Court to extend time and in consequence Mr Ellison was released on bail on 30 October 2000.On 23 November 2000, Mr Ellison was arrested for breach of his bail conditions. In addition to breaching his bail conditions, it was alleged that at the police station he had assaulted a police officer. On 24 November (within the 24 hours specified), Mr Ellison appeared before the Teesside Magistrates' Court, firstly, for the breach of the conditions of his bail, and secondly, as to the allegation of assault. The magistrates intended to deal with the assault charge on 27 November.
6. Mr Ellison admitted that he had breached a condition of his bail in that he had consumed alcohol. The magistrates' court were under the impression that there was to be a bail application to be heard in the Crown Court on 27 November. It appears that as to this they were probably mistaken, but that affected their subsequent conduct. The magistrates clearly took the view that, as the bail had originally been granted by the Crown Court and Mr Ellison was due to appear in the Crown Court in due course in relation to an offence of attempted rape, the matter of bail would more appropriately be dealt with in the Crown Court than in the magistrates' court. The evidence before this court is not clear on the subject, but that is the inference that I draw from all the evidence before us.
7. The magistrates issued a warrant of commitment or remand in respect of the breach of bail conditions under section 7(5) of the 1976 Act. If they had merely committed Mr Ellison in custody to await trial at the Crown Court, nobody would suggest that they had no jurisdiction to do so. If that had happened, it would have been in order for Mr Ellison to have made an application in due course to the Crown Court for bail; but because of their misunderstanding of the situation, they magistrates an order which is reflected in the warrant in these terms:

"This court, being of the opinion that the defendant has broken or is likely to break any condition of his bail, commit the defendant in custody to appear before Crown Court sitting at Teesside.

You, the constables of Cleveland Police Force or the authorised officers of Group Four Services, are hereby required to convey the accused to prison and there deliver the accused to the Governor thereof, together with this warrant; and you the Governor, to receive the accused into your custody and, unless the accused is released on bail or you are otherwise ordered in the meantime, to keep the accused until 27th November 2000 (and on that day to convey the accused to the magistrates' court sitting at Teesside) (until he shall be brought before the Crown Court at the time and place appointed by the Crown Court)."

8. That form is clearly intended to have one or other of the passages in brackets deleted. That did not happen. However, having regard to the other evidence which is before this court, the effect of the magistrates' order was that Mr Ellison should be committed to the Crown Court in custody until 27 November 2000, with the intention that the Crown Court should thereafter deal with the question of bail.
9. The idea of remanding in custody to the Crown Court a defendant who breaches a condition of his bail so that the Crown Court can then deal with bail thereafter is misconceived. The appropriate course for the magistrates to take is to remand or commit the defendant to the Crown Court until his trial or further order. If the superior court wishes to grant bail, that can be done. Any order made by the superior court would then override the decision of the magistrates. But the making of an order to a fixed date (as was done in this case) was inappropriate. In fact, when the matter came before the Crown Court, the judge, with the agreement of counsel appearing both for the prosecution and for Mr Ellison, took the view that the Crown Court had no jurisdiction to continue custody after 27 November. It is to be recalled that the custody time limits had expired and, furthermore, the only reason that Mr Ellison could be in custody was on the basis that he had either breached (or there were reasonable grounds for believing that he was likely to breach) the conditions of his bail. The Crown Court judge therefore declined to deal with the matter and indicated that Mr Ellison, who was due to appear before the magistrates' court in respect of the assault charge, should have the matter of his bail considered by the magistrates' court.
10. We are told that, when the matter returned to the magistrates' court on the afternoon of 27 November, it was indicated by both the solicitor appearing on behalf of Mr Ellison and by the solicitor appearing on behalf of the prosecution that as the magistrates could not commit Mr Ellison in custody; he was entitled to bail. The magistrates considered the position and came to the conclusion that they could amend the warrant or grant a fresh warrant (it matters not) which did not limit the period of custody to 27 November. There is therefore before this court a further order which is in virtually the same terms as the previous order which I have read, save that the date "27 November 2000" is omitted. There has been no deletion from the final phrases of the order. It recites that the constables or the authorised officers are required to convey the accused to the magistrates' court at Teesside or to the Crown Court at the time and place appointed by the Crown Court.
11. The solicitor appearing on behalf of Mr Ellison was under the impression that the amendment to the warrant was made by the clerk of the court without any instructions to do so. The solicitor was under that impression because the magistrates never returned into court to deal with the merits of the application which was before them on 27 November. The solicitor therefore thought that there had been no decision made by the magistrates on the question of jurisdiction. In fact it appears from the affidavits sworn by the clerk and Mr Teate, one of the legal advisers to the magistrate, that the matter was properly considered by a magistrate before the warrant dated 27 November was drawn up. It also appears from those affidavits that the clerk and Mr Teate were never fully informed as to what had happened earlier on 27 November before His Honour Judge Fox sitting in the Crown Court. Mr Teate states in his affidavit:

"The justices were of the opinion that they were unable to grant any form of bail to Mr Ellison on the breach of his bail because the court had already remanded him back to the Crown Court to be dealt with for this. The justices therefore remanded Mr Ellison to the Crown Court without a date fixed for his appearance. Their decision was based on the facts and information from the Crown Court asking the justices to remove the hearing date."

12. We have no reason to doubt that both the justices and their legal adviser thought that they were acting appropriately. However, it can be seen that from Mr Ellison's point of view the position was highly unsatisfactory. On 24 November the magistrates considered only whether to remand him to the Crown Court until 27 November. Then on 27 November the magistrates concluded that he should remain in custody (subject to any other order being made) until his trial which was due to commence on 22 January 2001.
13. In her helpful submissions Miss Sherwin argues that, having made their order on 24 November, the magistrates had exhausted their jurisdiction and that they had no right to make a further order on 27 November. She points to the fact that if section 7 of the Bail Act is read as a whole, it is anticipated that everything is intended to happen within 24 hours (see the provisions of section 7 to which I have already referred), in particular the obligation to bring the person concerned as soon as practicable, and in any event within 24 hours, before a justice of the peace. Clearly on 27 November the justices purported to exercise jurisdiction after the 24 hours had long expired. I consider that there appears to be considerable force in that submission.
14. Miss Sherwin has also referred us to section 142 of the Magistrates' Courts Act 1980, which deals with the power to rectify mistakes. She submits that that section cannot appropriately be applied here. She may well be right in that submission. However, today we have no assistance either from counsel acting on behalf of the magistrates or on behalf of the prosecution. I therefore would not express any final conclusion as to whether the justices are necessarily functus three days after the making of the original order. There may be situations where it would be highly inconvenient (for example, if there was a mere misunderstanding of the facts) for the magistrates not to be able to extend an order (as they sought to do here). However, whether the magistrates were entitled to make an order on 27 November, clearly it was not satisfactory that they should make an order which involved their remanding Mr Ellison in custody on the basis of the passage from Mr Teate's affidavit which expresses the justices' state of mind on that day. They were not considering whether they should make an order which should extend to 22 January 2001. Nor had that been considered on 24 November. On that ground alone it seems to me that this is a case where the order made on 27 November that Mr Ellison should be remanded in custody should be quashed, and I would so order.
15. The consequence is that I would not interfere with the order granting bail made in these proceedings by Mr Justice Ouseley. That order will continue on the terms that he specified until the matter comes before the Crown Court at the commencement of Mr Ellison's trial.
16. MR JUSTICE NEWMAN: I agree and would only wish to add this, since there does appear to have been some confusion in the magistrates' court on 24 November. In a case where a defendant has been committed for trial to the Crown Court, and even where the magistrates are told that the Crown Court Judge has expressed a view that any breach of bail conditions granted by the Crown Court should be deal with by him, the magistrates should have clearly in their mind that it is their jurisdiction under section 7 of the Bail Act 1976 which must be excised by them, whenever a person is brought before them under the section, within the 24 hours, laid down by the section.
17. In fairness to the justices, according to the affidavit of Mr Teate, they were told that any breach of the bail conditions would be dealt with by His Honour Judge Fox. That was not correct. The matter of the breach of bail conditions under the Bail Act had to be dealt with by the magistrates. Of course thereafter, in the event that a committal to custody took place, applications for bail could be made either to the Crown Court or to the judge in chambers. But the jurisdiction of the magistrates must be excised by them.
18. Like my Lord, and for the reasons he has given, I would not express any conclusion about the powers of the justices to amend or alter within days of it being made, when events take a course which had not been anticipated at the time the order was made. But, like my Lord, having regard to what occurred on 27 November when the magistrates do not appear to have considered that they had the power to reconsider the matter de novo, I am of the view that this application for judicial view should succeed on that ground. I agree that there should be no interference with the order of Mr Justice Ouseley granting bail.
19. THE LORD CHIEF JUSTICE: Is that satisfactory?
20. MISS SHERWIN: Yes, I am very much obliged to your Lordships. Can I ask that there be no order as to costs in this matter?
21. THE LORD CHIEF JUSTICE: Yes.
22. MISS SHERWIN: I am obliged.
23. THE LORD CHIEF JUSTICE: Thank you very much for your help.