Case No: CO/4270/2000
Neutral Citation Number:  EWHC Admin 507
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 3rd July 2001
"(6) Subject to the provisions of subsection (7) below, the justices composing the court before which any proceedings take place shall be present during the whole of the proceedings; but, if during the course of the proceedings any justice absents himself, he shall cease to act further therein and, if the remaining justices are enough to satisfy the requirements of the preceding provisions of the section, the proceedings may continue before a court composed of those justices."
He said that this provision referred to "any proceedings", as opposed to the
specific types of proceedings mentioned in section 121(1) and (2), and that it
meant that at least one of the justices composing the morning court should have
heard the proceedings through to the end.
23. Mr Perry appeared for the Lord Chancellor's Department to respond to the claim for damages pursuant to section 7(1) of the Human Rights Act 1998 (see also section 9(3) and (4) in relation to a claim for damages in respect of a judicial act done in good faith). He submitted that District Judge Alderson had jurisdiction to hear the matter in the afternoon in the way she did, so that no question of an entitlement to damages could arise.
24. He asked us to consider the context of our decision. The driving force behind section 7 of the Bail Act was ECHR Article 5(3), with its requirement that persons who were arrested or detained in accordance with Article 5(1)(c) must be brought promptly before a judge or other officer authorised by law to exercise judicial power. The requirement for promptness is echoed in our national law by the requirement in section 7(4)(a) of the Bail Act that the person arrested shall be brought before a justice of the peace "as soon as practicable and in any event within 24 hours after his arrest". In other words the judicial power of the state must be seized of the matter within this timescale, and the defendant's liberty cannot be taken away for any longer period merely on the authority of the police. This important principle underlay the decision of this court in R v Governor of Glen Parva Young Offender Institution ex p G  QB 877 per Simon Brown LJ at p 882: the requirements of the section were not satisfied simply by bringing the defendant within the precincts of a magistrates' court within that period.
25. Mr Perry said that it was open to us to accept his submissions on both a literal and a purposive interpretation of the Bail Act. Literally, because Mr Hussain was brought before the district judge within the requisite 24 hour period and she made her decision under section 7(5) the same day. Purposively, because Parliament's purpose was to ensure that the question of the defendant's continuing detention was placed before a justice or justices within the 24 hours period. This called for speedy, informal justice, and the procedure was rightly described as "sui generis" by Roch J in the Liverpool justices case at p 240C.
26. Mr Perry said that because Parliament required the matter to be determined so quickly, there might be all sorts of reasons why the matter might be brought before one court and then transferred to another. In the Liverpool justices case the defendant had appeared unrepresented in the morning. His case was put back to enable a solicitor to represent him and was eventually started at 4.20pm (see p 237A-B): the judgment does not record whether a different bench was sitting in the morning. In R (McKeown) v Wirral Borough Magistrates' Court, heard at the same time as the Havering case (see  1 WLR 805) two justices failed to agree in the morning, and the matter was then adjourned to be heard by a bench of three justices in the afternoon (see Latham LJ at para 7, pp 808-9).
27. Mr Perry suggested that circumstances might arise in which the original bench might start to hear a matter, but might then decide to give a defendant the opportunity to bring a witness to court to support his case on a disputed matter. The witness might arrive quite quickly, but he said that it was the logic of Mr Knowles's argument (which Mr Knowles did not dispute) that if the original bench was then heavily engaged with other cases, this simple breach of bail matter could not be transferred to another court which happened to be free at the time. Because jurisdiction cannot be conferred by consent, both advocates and the witnesses and the defendant (in custody) would be compelled to wait, perhaps a very long time, until the original bench became available again.
28. Mr Perry submitted that because this procedure is intended to be swift and informal, we should do our best to avoid putting justices in an unnecessary and inconvenient straitjacket unless the language used by Parliament absolutely required it. Because the procedure was sui generis - the one essential matter being that the effective hearing must start as soon as practicable and in any event within 24 hours after the arrest --it would be wrong to transport to it the procedural rigidity required on a summary trial or on the hearing of a complaint or in committal proceedings. On the facts of the present case, the reason why Mr Hussain did not appear before the district judge any earlier was because of the delay initiated by the concerns of the justices' legal adviser in the morning court, and the 24-hour condition was in any event satisfied. There was no breach of section 121(6) because the morning court was clearly content that its role in the matter should be at end if, as seemed likely, the matter could not be restored before the mid-day adjournment.
29. Mr Knowles, for his part, distinguished the Wirral case on the basis that the first hearing was in effect a nullity once that bench had failed to agree. He was unable to provide any satisfactory solution to the dilemma that would be caused when the original court is fully occupied and everyone has to hang about all day even though another justice in another court might be free to deal with the matter. He drew our attention to the passage in the judgment of Latham LJ in the Havering case at paras 43-44 in which there is a short but inconclusive discussion of adjournments. This passage ended with the following sentence which was said by Mr Knowles to support his case:
"A solution is likely to be that, Parliament having determined that there should be a swift and relatively informal resolution of the issues raised, the justice must do his best to come to a fair conclusion on the relevant day; if he cannot do so, he will not be of the opinion that the relevant matters have been made out which could justify detention."
30. In my judgment the arguments of Mr Perry are to be preferred. I remind
myself that this case, although touching on the liberty of the subject, is not
concerned with the trial of a criminal charge or a hearing at which a person's
civil rights are to be determined. Speed of determination is of the essence,
and the defendant ought not to be kept waiting for a court to determine the
matter any longer than is strictly necessary. In those circumstances, if
procedural rigidities appropriate for a more formal hearing are conducive to
delay (and it must be remembered that the determination must be made that day),
then we should not interpret section 7(5) as requiring such rigidity unless we
are compelled to do so. If Parliament had used more compelling language in
section 7(5) so as to make it clear that, for whatever reason, it was not
willing to contemplate permitting what happened in the present case, then in a
case where a witness had to be sent for everyone would have to wait around
until the original court became free again, and one of the justices on a
morning's list might have to come back to resume the matter in the afternoon.
In my judgment we are not driven to that conclusion.
31. In those circumstances I am satisfied that the district judge did have jurisdiction to start the matter afresh in the afternoon, and no question of a claim for compensation under sections 7-9 of the Human Rights Act can arise. Mr Perry told us, correctly, that if his submissions had failed, he would have had no answer to the claim for compensation, because ECHR Article 5(5) requires this result when a court deprives someone of his liberty without jurisdiction. Sea Benham v United Kingdom 22 EHRR 293 para 43; Santa Cruz Ruiz v United Kingdom Appln No 26109/95, at paras 30 and 50-52.
32. It is not therefore necessary for us to express any view on the amount of compensation we would have awarded in the event that we had found that there had been a violation of the Convention.
33. During the course of the hearing a question arose whether the complaint about the breach of bail had been put formally to Mr Hussain at the start of the afternoon hearing. Because this was not one of the matters complained of, the district judge did not address it specifically in her affidavit. In those circumstances it is unnecessary to say anything more about the matter except to state that this formality is required if the hearing is to start again before a different court.
34. I would therefore dismiss this application.
MR JUSTICE HARRISON:
35. I agree.