England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		11 July 2003

1. MR JUSTICE GAGE: This is an application for judicial review challenging the decision of the West London Magistrates' Court made on 26 June of this year. On that date, the claimant was remanded in custody following a ruling by the clerk of the court that reasonable excuse was not a defence to an allegation of a breach of a bail condition under section 7 of Bail Act 1976.
2. The factual background behind this matter is as follows. The claimant was charged on 19 May 2003 at the Chelsea Police Station with two offences. They were affray, contrary to section 3 of the Public Order Act 1986, and a racially aggravated offence contrary to section 4 of the Public Order Act.
3. He made his first appearance at the West London Magistrates' Court on 20 May 2003. On that day the charge of affray was withdrawn and an alternative offence contrary to section 31(1)(a) of the Crime and Disorder Act 1998 preferred. He indicated guilty pleas to the two charges. He was granted conditional bail until 10 June 2003 in order for a pre-sentence report to be prepared by the Probation Service. The conditions imposed in respect of bail were that he live at Flat 8, Guiness Court, Cadogan Street, London SW3; that he reported daily between the hours of 2pm and 4pm to the Chelsea Police Station; that he observed a curfew between the hours of 6pm and 10am; that he remained sober and that he committed no further offences.
4. On 22 May 2003, the claimant was arrested and brought before the Reading Magistrates' Court under section 7 of the Bail Act. He admitted failing to comply with the residence, reporting and curfew requirements. He was remanded in custody and on the following day brought before the West London Magistrates' Court. On 23 May -- that is the next day -- an application for bail was made to the West London Magistrates' Court and he was granted bail on the same conditions as on 20 May. The pre-sentence report was to be prepared for a hearing on 10 June. On 10 June the Probation Service submitted a letter to the West London Magistrates' Court stating that the pre-sentence report had not been completed. It was said that the claimant had not attended an interview arranged, notwithstanding that a letter of appointment for the interview had been sent to him at his address. He was accordingly admitted to bail again on the same conditions for a hearing on 2 July.
5. On 25 June the claimant was arrested pursuant to section 7(3) of the Bail Act because he had, in breach of bail conditions, failed to report daily at the Chelsea Police Station between 14 and 24 June 2003. The following day he was brought back before the West London Magistrates' Court. It was argued on his behalf, in relation to the breach of conditions, that it was open to him to raise a defence of reasonable excuse. The solicitor appearing on his behalf in support of that proposition relied upon the decision of R v Liverpool City Magistrates ex parte DPP [1993] QB 233. At that stage the court clerk advised the justices that the defence of reasonable excuse was not open to a bailed person in section 7 Bail Act proceedings. As a result, the claimant's solicitor advised the claimant to admit the failure to comply with reporting conditions. A full bail application was then heard. The result of this was that the justices remanded the claimant in custody. The justices stated that they were satisfied that a remand in custody was necessary because the claimant had broken his bail conditions and it was otherwise impractical to complete inquiries for the pre-sentence report to be prepared.
6. As a result of that hearing these proceedings for judicial review were instituted. The matter came before Owen J on Tuesday of this week when he gave leave and ordered an expedited hearing. In fact, what has subsequently occurred is that the claimant came before the West London Magistrates' Court yesterday; a pre-sentence report was available and the matter has now been disposed of by way of a sentence. This morning, Mr Fiddler, who appears on the claimant's behalf, at first sought leave to withdraw this claim but subsequently, because all parties submitted that the matter involved a point which is of some importance, I was persuaded that I should deal with the point of law which is now the sole ground before the court. It is not entirely academic because Mr Fiddler has indicated to the court that, if he is successful, he will seek a declaration that the remand in custody was unlawful.
7. I turn to the legal framework in respect of these proceedings. Section 7 of the Bail Act is headed, "Liability to arrest for absconding or breaking conditions of bail". In those parts of section 7 which are material to this matter, it is set out in sub-section 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 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 . . .

(4) A person arrested in pursuance of sub-section 3 --

(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 practical and in any event within 24 hours after his arrest before a justice of the peace of the petty sessions area in which he was arrested; and

(b) in the said excepted case shall be brought before the court at which he was to have surrendered to custody . . .

"(5) A justice of the peace before whom a person is brought under sub-section (4) above may, subject to sub-section (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."

8. The ground put forward by Mr Fiddler on behalf of the claimant is simply stated. He submits that, in considering the matter under sub-section (5) of section 7, the justices must first decide whether or not a breach of a condition has occurred, and in deciding that question, the justices are entitled to, and must take into account, any reasonable excuse which the bailed person may put forward for being in breach of the condition. In short, it is submitted that before a decision that a breach of condition has occurred, the magistrates must consider whether there is a reasonable excuse for such a breach.
9. In support of that submission and that ground, Mr Fiddler makes a number of subsidiary submissions. He submits that logic and common sense dictate that the words "reasonable excuse" must be read into sub-section (5). He refers to sub-section (3) which requires a constable before arresting a person under sub-section (3)(b) to have reasonable grounds for believing that he is likely to break any of the conditions of his bail. He submits that that indicates that a similar provision should be imported into sub-section (5). He further submits that fairness and consistency dictate that that reasonable excuse must be imported into sub-section (5). This submission is based on the fact that section 6 of the Bail Act, which provides for the criminal offence of failing to surrender, gives a bailed person a defence of "without reasonable cause". Section 6(1) reads:

"If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody, he shall be guilty of an offence."

Mr Fiddler submits that as a matter of consistency, provision of reasonable cause should be imported into sub-section (5) of section 7.

10. He further relies on Article 5 of the Human Rights Convention. He submits that paragraphs 5(1), (b) and (c) and possibly sub-paragraph (4) of Article 5 mean that sub-section (5) of section 7 can only be compatible with Article 5 if that provision is read into section 7(5).
11. The principle submissions by the defendants in this matter are that the statute does not provide for such a provision and that it would be quite wrong for a court to take that into account when considering what is not a matter that is a criminal offence.
12. All counsel have relied on both the Liverpool City Justices case and R v Havering Magistrates' Court ex parte DPP [2001] 2 CAR 12 and it is necessary for me to refer to some passages in each case.
13. First, in the Liverpool City Justices case, in the judgment of Roch J, as he then was, at page 240, letter F, the following appears:

"Section 7 does not create an offence. It provides a simple and expeditious procedure for dealing with a situation where a constable believes that a person bailed is unlikely to surrender to custody or, alternatively, that a person bailed is likely to break a condition of his bail or has broken a condition of his bail. That this was Parliament's intention is clear from the use in section 7(4) of the words 'shall be brought as soon as practicable and in any event, within 24 hours after his arrest'. The structure of section 7, in my view, clearly contemplates the constable who has arrested the person bailed bringing him before the justice and stating his, that is to say, the constable's grounds, for believing that the defendant has broken a condition of his bail."

14. Next, in Havering Magistrates' Court, Latham LJ gave the leading judgment in the decision of the Divisional Court. At paragraph 39 on page 26 he stated:

"It seems to me that in exercising that power [I interpolate, that is the power under section 7(5)] the justice would not be entitled to order detention by reason simply of the finding of a breach. That in itself is not a justification for the refusal of bail under paragraph 2 of Part 1 of the Schedule to the Act. To hold that a breach of a condition was ipso facto a ground for detention would, it is agreed by all parties, be a decision taken on a ground outside the purposes which the European Court of Human Rights has determined justified detention under Article 5. The fact of a breach of condition may be some evidence -- even powerful evidence -- of a relevant risk arising, but it is no more than one of the factors which a justice must consider in exercising his discretion under section 7(5).

At paragraph 42, in a passage relied on by Mr Fiddler, Latham LJ stated:

"What undoubtedly is necessary is that the justice when forming his opinion takes proper account of the quality of the material upon which he is asked to adjudicate. This material is likely to range from mere assertion at the one end of the spectrum which may not have any probative effect, to documentary proof at the other end of the spectrum. The procedural task of the justice is to ensure that the defendant has a full and fair opportunity to comment on and answer that material. If that material includes evidence from a witness who gives oral testimony, clearly the defendant must be given an opportunity to cross-examine. Likewise, if he wishes to give oral evidence, he should be entitled to. The ultimate obligation of the justice is to evaluate that material in the light of the serious potential consequences to the defendant, having regard to the matters to which I have referred and the particular nature of the material, that is to say, taking into account if hearsay is relied upon by either side, the fact that it is hearsay and has not been the subject of cross-examination, and form an honest and rational opinion. If his opinion is that the defendant has broken a condition of his bail, he must then go on to consider whether or not, in the view of that opinion and in all the circumstances of the case, he should commit the defendant into custody or grant bail on the same or other conditions, applying the principles set out in sections 3(6) and 4 of, and paragraph 2 of Part I (in Part II, paragraph 2) of Schedule 1 to the Act. If that course is taken I cannot see how the procedure could be said to be in breach of Article 5. It seems to me, therefore, that the general principles established in Liverpool City Justices remain good law subject to what I have said in paragraph 41 above."

15. Both sides rely on that passage as supporting their submissions. Mr Fiddler submits that it indicates that when considering the first stage, that is, whether or not there has been a breach of the condition, the justices must take into account any reasonable excuse put forward by the bailed person for breaching his condition. Mr Patel, on behalf of the defendant, submits that what is set out in that passage is a procedure to be followed by the justice or justices. If it is followed then it will be compliant with Article 5.
16. There is no dispute between the parties that section 7(5), in effect, involves a two-stage operation to be carried out by the justices. First a decision must be made as to whether or not there has been a breach of a condition. If there has been no breach of a condition then the bailed person is entitled to be admitted to bail on precisely the same conditions -- in other words, bail continues. If the justices are of the opinion that there has been a breach of the condition, then they must go on to consider whether or not the bailed person can be admitted again to bail or must be remanded in custody -- that is the second stage.
17. In carrying out the first stage, the justices must obviously act fairly. The person alleged to have been in breach must be given the opportunity of answering the allegation. That is quite clear from the decisions in Liverpool Justices and Havering Magistrates' Court. But in my judgment, that stage does not involve the justices in an inquiry as to whether the arrested person had a reasonable excuse for being in breach. Section 7 makes no mention of reasonable excuse in relation to a breach of condition. In addition, as is made clear in the Liverpool Justices case and in the Havering Magistrates' Court case, section 7 does not create an offence. It deals with a situation where a constable believes a person bailed has broken a condition of his bail. If the breach of bail is denied, then, obviously, the justices will have to consider any material put forward before them by both parties -- the constable and the bailed person -- before making a decision. In my judgment, in making that decision, the justices are not required to consider any reasonable excuse for a breach of a condition put forward by the bailed person. I can find nothing in Latham LJ's judgment in the Havering Magistrates' Court case which supports Mr Fiddler's proposition.
18. At the second stage, the justices will have to consider whether to grant bail or remand in custody assuming, of course, that they have been satisfied or are of the opinion that there has been a breach of condition. At that stage the question of why the bailed person breached his condition will be relevant. At that stage the justices will have to consider all the issues relating to reasonable excuse when deciding whether or not to grant bail. The breach of bail will be a factor, but as the Havering Magistrate's Court decision shows, only one factor as to whether or not the bailed person is admitted to bail again. The procedure to be followed at that stage as well as on the first stage will be that set out in paragraph 42 of Latham LJ's judgment in the Havering Magistrates' Court case. It seems to me that if the procedure accords with the operation of those two stages in that way, there can be no breach of Article 5. When the justices have considered all the material, they will make their decision on stage one and then on stage two. If that is followed then, as I say, I can see no possible breach of Article 5. In my judgment, nothing in this procedure is illogical, lacking in common sense or unfair to the bailed person. Further, the fact that section 6 of the Bail Act provides a degree of reasonable cause to an allegation of failure to surrender to bail is not in any way inconsistent with section 7. That creates a criminal offence the latter does not.
19. Accordingly, in my judgment, for those reasons, this claim must be dismissed. Are there any consequential matters?
20. MR PATEL: My Lord, we seek the usual order for costs against a legally assisted party, which is that the claimant to pay the defendant's costs -- such order not to be enforced without leave of the court.
21. MR JUSTICE GAGE: Yes, you cannot resist that?
22. MR FIDDLER: I cannot resist that application, but I make one comment. Whether there was a necessity to have the Crown Prosecution Service and (inaudible) what are, if I may say, identical points.
23. MR JUSTICE GAGE: Yes, I have heard that argument before. What do you say about that, Mr Seymour?
24. MR SEYMOUR: My Lord, as I understand it, on the occasion when the matter was dealt with by the single judge on the papers, the order that was made --
25. MR JUSTICE GAGE: -- was that the CPS attend.
26. MR SEYMOUR: Yes, the defendant and the interested party were asked to attend the oral hearing.
27. MR JUSTICE GAGE: But what about once ground 2 had fallen away?
28. MR SEYMOUR: Even at that stage the CPS continued to have a clear interest in the outcome of these proceedings.
29. MR JUSTICE GAGE: Were they joined or did they intervene or whatever the procedure is?
30. MR SEYMOUR: We were served as an interested party and would necessarily have to appear, and, accordingly, filed an acknowledgment of service saying we would be contesting the claim.
31. MR JUSTICE GAGE: I think that, subject to the usual order, you can have your costs up to and including the hearing on Tuesday. Thereafter, I cannot, I am bound to say, see the necessity for both parties to be represented and attend.
32. MR SEYMOUR: My Lord, so be it.
33. MR FIDDLER: My Lord, the only other order is an order for legal aid assessment.
34. MR JUSTICE GAGE: Yes, Mr Fiddler, you may have that.
35. MR FIDDLER: I am grateful, My Lord.