England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		15th March 2004

Monday, 15th March 2004

1. MR JUSTICE MACKAY: This is an application by the claimant for judicial review of a decision by the defendant court to refuse her application for the grant of a legal representation order in criminal proceedings. Her application was made on 1st October 2003 in anticipation of two charges she faced, both alleging failure to surrender to bail, on 21st May and 17th September 2003. She was due to appear in court on 26th and 27th November to answer these charges.
2. From the face of her application form it appeared that she was a 24-year old drug addict (her own words), subject to a Drug Treatment and Testing Order, and with what she called a number of previous convictions, in particular for failing to answer bail. In fact, one previous conviction for failing to answer bail in December 1999 had resulted in her being put on probation for 12 months, together with an offence of possession of heroin, and a second in December 2002 had attracted no separate penalty. She also had two charges of theft outstanding. She said she wanted to dispute the Bail Act charges and wanted a solicitor to "cross-examine and put my case effectively". She expressed the fear in addition that "In view of my past history for similar offences it is likely that I will receive a custodial sentence. Recent case law suggests consecutive custodial sentences".
3. On 14th October she received written notification of the refusal of her application signed by an officer of the court. The reasons given were as follows:

"Defendant known to clerk - able to deal with bail act offences on her own.

Simple issue - to produce a medical note to cover the two dates.

Will not receive custody for offences - likely penalty if convicted a fine.

No cross-examination involved - no witnesses."

4. Her application was renewed orally to the court by her solicitor. Though no written record of the reasons for its refusal on that occasion exists, I must assume and accept that the bench substantially followed the views attributed to their clerk in the written notification. Though therefore in form this claim challenges only the decision notified on 14th October, in reality it is both decisions, and particularly the second of the two on 7th November 2003, that is the subject of this claim.
5. The criteria laid down by statute to guide those deciding applications of this nature are to be found in the third schedule to the Access to Justice Act 1999 at section 5. The relevant parts read as follows:

"5(1) Any question as to whether a right of representation should be granted shall be determined according to the interests of justice.

(2) In deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account:

(a) whether the individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or suffer serious damage to his reputation."

6. The challenge therefore to these decisions is a simple one. The claimant points to case law indicating a judicial trend in favour of imposing custodial terms, albeit of a short duration, for Bail Act offences.
7. The first of these is R v Neve [1989] 8 Cr App R (S) 270. There the defendant had gone abroad and failed to stand his trial on serious charges relating to drugs, charges on which he was eventually acquitted when he later returned to this country. A six month sentence for breach of bail, dealt with as a contempt of court, was upheld, as was the forfeiture of a significant sum deposited as a condition of bail. The court was at pains to stress the necessary deterrent element of a custodial sentence in cases such as this.
8. In R v McMullen, unreported, [1998] EWCA Crim 2221, 3rd July 1998, three months' imprisonment for an appellant with previous convictions for abuse of bail, some of which had resulted in shorter prison sentences, was in the court's view a sentence in which they could "see nothing excessive".
9. Finally, R v White & McKinnon [2002] EWCA Crim 2952, 5th December 2002, Kennedy LJ, having reviewed the provisions of section 6 of the Bail Act said at paragraph 3:

"A custodial sentence if imposed must therefore not exceed twelve months, and in most cases it is difficult to see how a custodial sentence can be avoided. In practice, courts do not seem to have imposed sentences as long as twelve months."

And then a little lower down, at paragraph 4:

"4. Turning to the question of whether any sentence for failure to surrender should be ordered to be served concurrently or consecutively with other sentences imposed at the same time, we are in no doubt that in principle a sentence for failing to surrender should always be ordered to be served consecutively to any other sentence imposed at the same time for another offence."

10. To this jurisprudence should now be added the guidance to be found in the Consolidated Criminal Practice Direction as it now stands. By Part 1, 13.2, emphasis is placed on the disruptive consequences of failure by defendants to comply with the terms of bail. At 13.4 the practice direction stresses that the offence of breach of bail stands apart from the proceedings in respect of which bail was granted. 13.5 deprecates the common practice of courts automatically deferring disposal of a Bail Act offence until the conclusion of the proceedings in respect of which bail was granted, and urges and enjoins court to deal with defendants as soon as practicable, and continues:

"If the disposal of the breach of bail is deferred, then it is still necessary to consider imposing a separate penalty at the trial and the sentence for the breach of the bail should usually be custodial and consecutive to any other custodial sentence."

Finally, at 13.13 in relation to sentencing for these offences, the direction states:

"In principle, a custodial sentence for the offence of failing to surrender should be ordered to be served consecutively to any other sentence imposed at the same time for another offence unless there are circumstances that make this inappropriate."

White & McKinnon is there cited.

11. While, therefore, the clerk was entitled to reach the view in his written decision that a contested Bail Act offence was itself a simple matter to deal with in terms of the conduct of the trial of the issue, the question here, as I see it, is whether he could reasonably have formed the view that he did as to the likely consequences of the claimant's conviction, if she was convicted, for what would have been her fifteenth and sixteenth criminal offences and her third and fourth offences for this particular offence. He confidently stated that she "Will not receive custody for offences ... likely penalty if convicted a fine". We know little or nothing about the claimant's financial position, but note her self-confessed status as a drug addict, confirmed by her previous record of convictions, and the fact that she is currently subject to a Drug Treatment and Testing Order.
12. In view of the guidance of the Court of Appeal, especially in White & McKinnon, and the terms of the Practice Direction, we do not consider that the clerk could reasonably have expressed himself with the confidence he used in reaching this decision; nor could the justices have been right in following that advice. The likely sentence here was a custodial one. Any other form of disposal would have been one which the claimant and her advisers would have greeted with considerable relief.
13. While I, therefore, share the views of the learned single judge who granted permission in this claim that this whole exercise may seem disproportionate to the costs involved, I accept that the claimant is entitled to judicial review of this decision. I would therefore quash both the decision of 14th October and 7th November 2003, the latter of which I assume to be encompassed within this claim, and would order the justices to reconsider the grant of a legal representation order to the claimant, staying the proceedings in respect of these offences pending the outcome of her application.
14. MR BARNES: I hesitate to mention this, but there are the costs of these proceedings.
15. LORD JUSTICE KENNEDY: Of course.
16. MR BARNES: Miss Evans has had the benefit of public funding for these proceedings. I presume that no order would be made against the justices.
17. LORD JUSTICE KENNEDY: No.
18. MR BARNES: But I would seek taxation of her costs.
19. LORD JUSTICE KENNEDY: The normal practice in this jurisdiction is that no order will be made against the lower court unless they appear, which they very rarely do, but you may have the order you seek. Thank you very much.