QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PAUL VICKERS||(CLAIMANT)|
|WEST LONDON MAGISTRATES' COURT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P PATEL (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
MR M SEYMOUR (instructed by the Crown Prosecution Service) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
"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."
"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.
"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."
"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."