Case No: CO/4270/2000
Neutral Citation Number: [2001] EWHC Admin 507
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 3rd July 2001

B e f o r e :

LORD JUSTICE BROOKE
and
MR JUSTICE HARRISON
- - - - - - - - - - - - - - - - - - - - -

	REGINA

On the application of JAMIL HUSSAIN	
Claimant	
	
- and -		
	
(1) DERBY MAGISTRATES’ COURT
(2) LORD CHANCELLOR’S DEPARTMENT	
Defendants	

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Julian B Knowles (instructed by The Smith Partnership for the Claimant)
David Perry (instructed by the Treasury Solicitor for the Lord Chancellor’s Department)
The first defendants were not present or represented

- - - - - - - - - - - - - - - - - - - - -

Judgment
As Approved by the Court
Crown Copyright ©

Lord Justice Brooke: 
1.	This is an application by Jamil Hussain for judicial review of three decisions taken at the Derby Magistrates’ Court on 10th October 2000.  The applicant had been arrested the previous evening for breaching a condition of police bail, and was brought before two lay justices sitting at that court the following morning.  The first impugned decision was the decision on their part to stand the defendant down so that he re-appeared before a district judge in the same court on the same afternoon.  The second was the decision of District Judge Alderson that Mr Hussain had breached his bail conditions. The third was her decision to refuse his application for bail and to remand him in custody until 17th October.
2.	Mr Hussain had been charged on 1st October 2000 with making threats to kill, contrary to section 16 of the Offences Against the Person Act 1861.  He was released on conditional police bail, and one of the bail conditions was that he was not to contact Julie Ann Evans directly or indirectly.  He was bailed to appear at Swadlincote Magistrates’ Court on 12th October.
3.	On 9th October he was arrested by the police.  It appeared that Julie Evans had complained that he had been telephoning her and trying to get her to change her evidence.  He was interviewed by the police and detained in custody overnight for production before the magistrates the following day.
4.	The position was governed by section 7 of the Bail Act 1976 which reads, so far as is material:
(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 …
(b)	if the constable … has reasonable grounds for suspecting that that person has broken any of [the conditions of his bail] …
(4)	A person arrested in pursuance of subsection (3) above –
(a)	shall … 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 …
(5)	A justice of the peace before whom a person is brought under subsection (4) above may … if of the opinion that that person …
(b)	has broken … any conditions of his bail.
remand him in custody … or alternatively, grant him bail subject to the same or different conditions, but if not of that opinion shall grant him bail subject to the same conditions (if any) as were originally imposed.
5.	When Mr Hussain appeared before the Derby justices on 10th October, the Human Rights Act 1998 had just come into force.  During the lead-up period before the Act came into effect, varying opinions had been expressed about the quality of the evidence justices should receive at a hearing held pursuant to section 7(4) of the Act.  The justices are not represented before us, but three helpful affidavits have been lodged with this court which explain the sequence of events at court that day.
6.	Mr Wormington was sitting as chairman of the bench, with two other justices, in the main remand court.  Mrs Connolly was acting as legal adviser to that court.  She tells us that what was alleged against Mr Hussain was that he had breached his bail conditions by telephoning Julie Evans on four different days between 2nd and 9th October.  When Mrs Connolly put this breach allegation to Mr Hussain he denied it.
7.	The prosecutor then told the court he proposed to proceed by way of making representations to the court and reading witness statements.  At this point Mrs Connolly intervened and suggested that the procedure might engage both Articles 5 and 6 of the European Convention on Human Rights (“ECHR”).  In particular, Mr Hussain might not be afforded a fair trial by not being given the right to challenge witnesses against him.
8.	Not surprisingly, the advocates for the parties expressed different views on this point.  The defence solicitor echoed Mrs Connolly’s concerns and agreed with her that there was a potential incompatibility with the Convention.  The prosecutor, on the other hand, argued that breach proceedings under section 7 of the Bail Act constituted a pre-trial issue, so that Article 6 did not apply.  He should therefore be permitted to follow the course he proposed, and not have to call oral evidence.
9.	Mrs Connolly then suggested that the justices should retire for a few moments while she consulted Mr Hallam, who is the clerk to the Derby justices, because she knew that this issue had recently been discussed at a Legal Advisers’ meeting.
10.	When the justices returned to court, Mr Hallam was in court, and Mrs Connolly advised them in his presence that there was a potential incompatibility between our national law and ECHR law in these circumstances, but that each case should be determined and assessed on its own particular facts.  The defence solicitor then submitted that it would be impossible for the court to decide whether there had been a breach of bail conditions without hearing evidence and allowing for cross-examination.  This was particularly important in a case which involved one person’s word against the other, with no corroborative evidence.  He argued that it would be essential for the court to assess the credibility of such evidence, and this could only be achieved if the justices heard oral evidence.
11.	The justices accepted these submissions.  Mr Wormington said that in the interests of justice they would put the case back in the list to allow the prosecution to call the relevant witnesses.  This was necessary to afford the defendant a fair hearing.  He said that the justices had come to this conclusion having regard to the particular nature and circumstances of the case.  It involved weighing the word of one person against the word of the other, and they felt that it would be impossible to determine this issue without hearing from the parties in person.  It would be necessary to assess the credibility of the evidence given by each party, and they had been told that there was no corroborative evidence to be presented.
12.	Mr Wormington said that for these reasons the case would be put back in the list, perhaps to the afternoon.  The defendant was asked to return to the cells with the security officers.  Neither Mr Wormington nor Mrs Connolly recalls Mr Wormington saying that the case was adjourned or that the defendant was remanded in custody.
13.	It is apparently the usual listing practice at Derby that different justices sit in the main remand court in the morning and in the afternoon.  That court has a separate morning and afternoon list.  Any matters listed in the morning and not reached, or put back for any reason, are normally put over to the afternoon list.  District Judge Alderson took the afternoon list that day.
14.	When Mr Hussain was brought back to court in the afternoon, the prosecutor told the district judge he could not proceed with the matter because he had been unable, in the time available, to produce the Crown’s witnesses that afternoon.  The district judge said that she did not require witnesses to be present.  She would deal with the matter by way of representations from both sides in accordance with established practice. 
15.	The defence solicitor then told her she should not deal with the matter in this way because it would breach his client’s human rights.  He referred to ECHR Article 6, but said that having successfully argued the point before the lay justices in the morning, he was not prepared to argue it again.  He said she had no jurisdiction to entertain the breach proceedings, because the justices that morning had no power to adjourn or to remand the defendant in custody pending their decision in section 7(4) proceedings.
16.	The district judge said she took the view that that bench had put the matter back in the same list in the same court on the same day and within the 24 hours allowed by law for breach proceedings to be dealt with.  She was therefore satisfied that she did have jurisdiction to hear the proceedings and that there would be no breach of ECHR Article 6 if she proceeded in the way she had proposed.
17.	She then found the breach proved.  In view of the nature and seriousness of the offences, and the fact that the defendant had breached his bail conditions by contacting the injured party, she was satisfied that if she granted him bail again, whether subject to conditions or not, there were substantial grounds for believing that he would commit further offences and interfere with witnesses.  She therefore remanded him in custody.
18.	The claimant maintains that on the proper construction of section 7(4) and (5) of the Bail Act, the justices before whom he first appeared ought to have completed the hearing that day after embarking on it.  They had no power to adjourn it, and still less did the district judge have any power to start the hearing again in the afternoon and make the orders she did.
19.	There are two decision of this court which cast some light on the issues in this case.  In R v Liverpool City Justices ex p DPP [1993] QB 233 it was held that a justice had no power to remand a defendant in custody and to adjourn the determination of the section 7(5) hearing until another day.  The court also held that Parliament had intended by section 7(4) to create a simple and expeditious procedure whereby a justice was required, before forming an opinion under section 7(5), to conduct no more than an informal inquiry, hearing the arresting officer’s grounds for belief that the person had broken or might break his bail conditions and allowing that person to respond, but without the giving of evidence on oath or cross-examination. The proceedings did not constitute a summary trial on an information nor the hearing of a complaint.  The provisions of that Act which related to the adjournment of proceedings before magistrates’ courts therefore did not apply.
20.	In R (on the application of the DPP) v Havering Magistrates’ Court [2001] 1 WLR 805 this court held that ECHR Article 6 had no application to proceedings under section 7(6) of the Bail Act, and that ECHR Article 5 did not require the underlying facts relevant to determination under section 7 to be proved to the criminal standard of proof.  Nor did it require that only evidence which would be admissible at trial could be relied on.  In other words the court approved the approach adopted by the district judge at the afternoon hearing in the present case.  For this reason Elias J as the single judge did not give the claimant permission to argue this point, but there still remained another important issue open for our decision.  That question is whether on the proper construction of section 7(4) and (5) a justice or justices have power to stand an application out of their list after being seized of it and making a preliminary ruling, with the effect that a different justice or justices embark on the hearing afresh and determine it on the same day.
21.	Mr Knowles’s argument ran along the following lines.  He said that section 7(4) envisaged a defendant being brought before a justice of the peace within the 24-hour period, and section 7(5) envisaged the same justice making the decision whether to remand him in custody or grant him bail.  He said that there was simply no room for one justice starting to hear the matter and then, if for some reason that hearing had to be suspended, another justice hearing the matter afresh.  He said that the justice became seized of the matter as soon as the allegation as to the breach of bail had been put to the defendant, and he or she then had to hear the matter out, with or without any necessary breaks, the same day.  He accepted that more than one justice could hear the matter, and said that in those circumstances section 121(6) of the Magistrates’ Courts Act 1980 allowed the number of justices to be reduced to one if for any reason the other justice(s) could not stay to see the hearing concluded.
22.	Mr Knowles relied on the decision of this court in Barnsley v Marsh [1947] KB 672 as authority for the proposition that no particular formula is required in order to signify that a matter has been adjourned.  He also relied strongly on section 121(6) of the Magistrates’ Courts Act 1980 which provides:
“(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 [1998] 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 [2001] 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.

*****************

LORD JUSTICE BROOKE:  For the reasons set out in the judgment of the court, copies of which were made available to the parties about 10 minutes ago, this application is dismissed. 
Are there any typos that anybody has picked up in the time available? 
MR KNOWLES: My Lord, no. 
MR PERRY: Not in the time available. 
LORD JUSTICE BROOKE: Very well, then the text of this judgment will be available from my clerk, insofar as it is not already available in half an hour's time. Is that about it? 
MR KNOWLES: My Lord, so far as certification of questions is concerned, I would like a little time, if I may, to digest my Lords' judgment. 
LORD JUSTICE BROOKE: Yes, certainly. You are content that we deal with the matter in‑‑‑‑ 
MR KNOWLES: On paper, my Lord. 
LORD JUSTICE BROOKE: On paper. 
MR KNOWLES: My Lord, if it appears to me that a question does arise, perhaps I could formulate it and circulate to it my learned friend. 
LORD JUSTICE BROOKE: Yes, it would be convenient if what reached us had both your input in it, if that is convenient. Well, I think we look forward to seeing you both again tomorrow. 
MR PERRY: My Lord, may I mention just two matters. 
LORD JUSTICE BROOKE: Yes. 
MR PERRY: The first is, for your Lordships' information, section 53 of the Administration of Justice Act 1985 provides that if a party to civil proceedings incurs additional expense through the incapacity or death of the judge, then that party may recover their expenses from the Lord Chancellor's department, and I am informed by Mr Solly that is why the Lord Chancellor only appoints such fit and healthy people to the Bench. My Lord, that is just for the court's information. 
LORD JUSTICE BROOKE: Flattery will get you nowhere, Mr Perry. 
MR PERRY: And my Lord we provided copies ‑ although it is rather late now, if your Lordships would find the table of just satisfaction of assistance? 
LORD JUSTICE BROOKE: That will be very handy. 
MR PERRY: We have provided copies. 
LORD JUSTICE BROOKE: If Mr Emmerson is not hanging on to his copyright. 
MR PERRY: My Lord, we have not checked that. Thank you very much indeed. 
MR KNOWLES: My Lord, could I apply for just satisfaction in the form of a Legal Services Commission Taxation. 
LORD JUSTICE BROOKE: What? 
MR KNOWLES: A Legal Services Commission taxation. 
LORD JUSTICE BROOKE: Legal aid, is it? 
MR KNOWLES: Whatever it is called now. Legal aid taxation. 
LORD JUSTICE BROOKE: You may have whatever it is called, and the Associate will know all about it. 
MR KNOWLES: Just satisfaction. 
LORD JUSTICE BROOKE: That is wonderful. Thank you very much indeed. 
Yes, I raised the question, Mr Perry, because we are still in the process of being about to hand down judgment in a case with which your clients are also concerned. We are getting on with it. 
MR PERRY: Thank you very much. 
LORD JUSTICE BROOKE: Not at all.