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
		15th August 2005

1. MR JUSTICE STANLEY BURNTON: I have before me two applications for permission to apply for judicial review of decisions made by His Honour Judge Warner at Wolverhampton Crown Court on 1st August of this year when he refused to grant bail to two defendants in a multi-handed carousel fraud. The fraud itself, it was alleged by the prosecution, involved a considerable amount of money, as I understand it some £20 million. The protagonist, that is to say the person who was the guiding light of the alleged fraud, it is alleged, was Mr Craig Johnson, one of the defendants.

Mr Johnson's bail

2. Mr Johnson had been on bail until 19th July, but his bail was then rescinded by the judge. The same applies to the other applicant before me, Mr Lipinski. Mr Lipinski was involved in one of the companies engaged, on the prosecution case, in the carousel fraud, namely a company involved in transactions with either Mr Johnson or companies with which he was associated which, according to the prosecution, enabled Customs and Excise to be defrauded of, I assume, Value Added Tax, as is the way in such carousel frauds.
3. The proceedings had a long history. A jury had been empanelled on 4th April 2005. It was discharged four days later. On some other date during April a second jury was empanelled. It survived for something like a month. It was discharged on 4th May. On 17th May, a third jury was empanelled and, in a sense, a third trial began. There was an incident on 23rd June 2005 when a jury spoke to Mr Lipinski asking him whether the case was over yet. That matter was referred to the judge. He found it a puzzling episode, a description with which I would agree. It led to no decision by him to discharge any juror, as I understand it, although applications to that effect were made.
4. On 15th July 2005, it is alleged an attempt was made to bribe one of the jurors, that is to say an offer of money was made to a juror who reported the matter on the same day. That was a Friday. On the Monday HHJ Warner remanded Mr Johnson in custody and on 19th July he refused bail to Mr Johnson. Mr Lipinski had been granted bail at some earlier stage and remained on bail.
5. On 20th July, the judge discharged two jurors, namely the juror who had been approached in the attempt to bribe and one to whom he had confided that attempt. Witness statements were taken from court security offices and, in particular, a security officer who was referred to as "A". At the insistence of the judge she was examined and cross-examined about what had occurred on an earlier date. What had occurred involved a man with a pony tail, who is assumed to be the man who had approached the juror with an offer of a significant sum of money.
6. The question obviously arose as to whether the man with the pony tail who had been seen at court, assuming he was the same person who had attempted to bribe the juror, was associated with any of the defendants because, if he were, or if there were substantial grounds for believing that he was, that risked the fairness of the trial from the point of view of both prosecution and no doubt all the defendants. Any such attempt, if established on the part of a defendant, would inevitably lead in all but the most exceptional cases to bail being withdrawn in order to ensure that jurors were not interfered with. Attempts to interfere with a jury frequently, if not always, lead to the discharge of a juror or jury.
7. On 28th July of this year the judge decided that, notwithstanding his earlier decision that only two jurors should be discharged, it was appropriate to discharge the whole jury, in the circumstances of the case, and on 1st August a new trial was fixed to begin on 26th September. On the same date the judge refused bail to Mr Lipinski and to Mr Johnson. It is that decision which is the subject of these proceedings.
8. The proceedings were commenced promptly by Mr Lipinski on the 4th and on behalf of Mr Johnson on 5th August 2005. They have come before the court on an application for permission and if permission is granted as a substantive application having regard to the urgency of the matter, the impending trial, in any event, both Mr Lipinski and Mr Johnson having had their liberty determined by the judge's decisions.
9. There are two issues before me. The first is whether the court has jurisdiction to grant judicial review in circumstances such as the present and the second is whether, if there is such a jurisdiction, this is a case in which the court can, or should, interfere.
10. Parliament has taken from the High Court its jurisdiction to grant bail in cases pending on indictment in the crown court. It has, however, retained the power of the High Court to grant mandatory prohibiting and quashing orders on judicial review and that jurisdiction is available in respect of decisions of the crown court apart from the jurisdiction of the crown court "in matters relating to trial on indictment".
11. That exception arises by virtue of the terms of section 29(3) of the Supreme Court Act 1981. The expression "matters relating to trial on indictment" may seem to be deceptively straightforward and simple of application, but in fact has proved anything but that. Two tests have been put forward as guides, and no more, to the application of that section to decisions of the crown court. One helpful pointer was suggested by Lord Bridge of Harridge in Smalley v Warwick Crown Court (1985) AC 622 in which he said that the correct application of the exclusionary words is to ask whether the order sought to be reviewed is an order "affecting the conduct of a trial on indictment". That expression would seem to indicate that matters of procedure, as well as substance, are within the expression.
12. In R v Manchester Crown Court and Others [1994] 98 Cr App R 461, the House of Lords again asked the meaning of the exclusionary expression and Lord Browne-Wilkinson suggested a further pointer to the true construction of the section, namely:

"Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?"

He said:

"If the answer is 'yes,' then to permit the decision to be challenged by judicial review may lead to delay in the trial: the matter is therefore probably excluded from review by the section. If the answer is 'no,' the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial: therefore, it may well not be excluded by the section."

13. That formulation would seem to indicate that procedural matters might be outside the exclusion. It seems to me that to that significant extent both pointers take one in different directions.
14. The effect of the recent abolition of the power of a High Court to grant bail was considered by the Divisional Court in the Isleworth Crown Court case. In that case Maurice Kay LJ referred to the statement of Lord Browne-Wilkinson in the Manchester Crown Court case, to which I have just referred, and he applied that dictum to an application for bail and held that the Administrative Court has jurisdiction, but he said:

"... I am in no doubt that it is a jurisdiction which we should exercise very sparingly indeed. It would be ironic and retrograde if, having abolished a relatively short and simple remedy on the basis that it amounted to wasteful duplication, Parliament has, by a side wind, created a more protracted and expensive remedy of common application."

15. The most recent decision of the Administrative Court, which has been cited to me, is the case of Wiggins v Harrow Crown Court. It is one of a number of decisions of Collins J in the present context. In that case only the claimant, that is to say the defendant in the crown court proceedings, was represented before Collins J. It was a case in which bail had been refused to a defendant who had failed to appear at the beginning of the trial. Collins J held that he had jurisdiction and held that the refusal of bail in the circumstances of that case was one which had been sufficiently unreasonable for him to interfere with.
16. The authority of that decision is reduced, to some extent, because it was not argued in that case that it could, or should, be distinguished from other cases in which the court had accepted it did have jurisdiction in cases in which there was an attempt to judicially review a decision by the crown court refusing to grant bail.
17. I have to say, I find the question of jurisdiction in this case exceedingly difficult. As I have already said, the two pointers given by the House of Lords seem to point in different directions; and it does seem to me that there may well be a distinction to be drawn between some cases in which bail is refused by the crown court and others. In a sense, of course, all applications for bail and its refusal affect a trial on indictment where the refusal is by the crown court in relation to someone who is to be tried in the crown court by a jury.
18. I say that because if bail is granted and the defendant does not appear for his trial, inevitably the trial on indictment will be affected. In the present case it is alleged that events took place during a trial on indictment which led to the termination of bail. In so far as those events took place while the jury was empanelled and while the jury was continuing with the trial, it seems to me that the plain words of section 29 would apply, that is to say, the decision of the crown court judge, made as a result of what occurred during a trial on indictment, and affecting a trial on indictment, would be within the words of section 29.
19. It may be objected that the present case differs from that example because the jury, which was empanelled at the time of the relevant events (the relevant events for these purposes are (a) the attempt to bribe a juror and (b) the appearance at court of the briber) has been discharged and a new jury is to be empanelled. However, the wording of section 29 does not necessarily limit the exclusion to the trial before the jury which is proceeding at the time the question arises. It is quite general. The exclusion is in relation to matters relating to trial on indictment.
20. Speaking for myself, therefore, and notwithstanding the authorities to which I have been referred, I have concern, at the very least, as to whether there is jurisdiction judicially to review a crown court judge in a case such as the present. I have in mind, of course, that the decision to refuse bail may, in a case as complicated as the present, involve loss of liberty for a very considerable period, six months, a year or more, but I have to have regard to the wording of section 29.
21. I proceed with the case on the assumption that there is jurisdiction in a case such as the present. It is convenient to deal first with the facts relating to Mr Lipinski. The man with the pony tail came into court on the day in question, a date which has not been since identified, and asked first, I think, a question about an unnamed member of the jury but then said that he had come to support another of the defendants. The security officer spoke to that defendant, Mr Sanders, and the inference, I think, that she drew from that discussion, and what happened with it afterwards, was that the pony tailed gentlemen had no connection with Mr Sanders. The pony tailed man having come into court and made an inquiry left court. He then returned in close proximity to Mr Lipinski. The proximity was close enough for the security officer to form the impression, which of course was subjective, that they were acquainted with each other. According to her witness statement:

"Lipinski walked through closely followed by the male. I got the impression they knew each other due to their close proximity albeit they did not speak. They both went up the stairs towards Court 2."

22. The security officer, as I have already said, gave evidence and I accept Mr Comrad's submission that in substance she did not add to, or indeed detract, from what was in her witness statement. Having heard that evidence, the judge considered that there was substantial material before him, the basis of which he could conclude that there was a risk if Mr Lipinski remained at liberty of interference with that jury, or another jury, and he revoked bail. The question for me applying the dictum of the Divisional Court in the Isleworth case is whether I can conclude, or should conclude, that the material before the judge was inadequate for him to form that conclusion: a conclusion which depended on his having substantial grounds to believe that there was a connection between the pony tailed man and Mr Lipinski.
23. As Mr Hall pointed out, this court is in a very different situation from the trial judge in a case such as the present. The trial judge heard the evidence, heard the security officer cross-examined and was able to conclude, on the basis of that, not whether it had been proved beyond doubt that the pony tailed gentlemen was connected with Mr Lipinski, but whether there were substantial grounds for believing that there was such a connection; and a necessary conclusion would follow, if there was such a connection, that Mr Lipinski had been, or at least there was a very substantial risk that he had been, involved in an attempt to bribe the jury.
24. In my judgment this is not a case in which the court can conclude that the decision of the judge was perverse. He clearly applied a correct test in deciding whether or not there was substantial material before him. The transcript of the hearings before him indicate how careful he was in applying that test and to what extent he wished to be fair to the defendants. In those circumstances I grant permission to Mr Lipinski to challenge the decision of the judge, but I refuse judicial review for the reason I have stated.
25. I then turn to the case of Mr Johnson. Mr Johnson differs from Mr Lipinski in a number of important respects, so far as his case is concerned. First, he is alleged to be the protagonist, the man in charge of the fraud. Secondly, it is common ground that he knew Mr Lipinski both before the fraud began and obviously during the fraud, if fraud there was. It follows that one of the possibilities the judge would have in mind, if he were satisfied that Mr Lipinski was involved in an attempt to bribe a juror, is that he would have done so at the instigation, or in conjunction with, Mr Johnson.
26. Mr Johnson had been the subject of previous applications for bail and indeed other matters. Two facts are striking. The first is that it was alleged that he had failed to disclose in collateral proceedings, under the Proceeds of Crime Act, the existence of bank accounts in Honk Kong, one of which had, to its credit, a very significant sum of money. Mr Johnson denied that he had failed to disclose those bank accounts, although I think he accepts that they are bank accounts of his or which he controls. There was an issue as to that therefore.
27. Secondly, Mr Johnson's passport had been disclosed at some point. When it was disclosed it was disclosed without a page, which it was subsequently discovered contained a visa entitling him to live in a state in the Middle East, Dubai. Mr Johnson's case was that the omission of that page from his passport was accidental, or otherwise unassociated with any criminality on his part.
28. The judge heard the bail application, in respect of Mr Johnson, in May 2004. There is before me no transcript of the hearing, but it was referred to by the judge on 19th July. The judge said this:

"I am satisfied on the face of it here that there is evidence of a determined effort to bribe a juror with some degree of sophistication in the way he was approached and engaged in conversation. A sinister aspect is that there is very disturbing evidence to suggest that he may have been followed. Of course I have regard to the fact that he was the juror who asked unsuccessfully for a holiday date to be altered but I am satisfied from the detail he gives and the circumstantial evidence now available from the CCTV that his account is one that the court should assume at this stage to be true."

The judge went on to consider what had occurred, so far as the jury is concerned, and continued:

"I am concerned with the closely linked but obviously separate issue of the integrity of this trial. When I refused bail to Mr Johnson prior to later granting it as I have already indicated yesterday not on the merits in circumstances to which I have already referred, I said in any event: "however many sureties he has they do not deal with or reduce the likelihood of him obstructing the course of justice. Prima facie here the history of the alleged offending and the subsequent developments show non-disclosure and manipulation to a degree from which I have no doubt that if Mr Johnson were admitted to bail that behaviour would continue and risk heavily interfering with the course of justice."

That quotation of the judge of his own statement was a quotation from his notebook on what he had said in May 2004. The judge continued, and I revert to what he said on 19th July:

"He [that is to say Mr Johnson] was refused bail.

He has been on bail with strict conditions. He is entitled to ask now as he does the court to take into account his compliance with bail conditions. He has always turned up at court as and when required. It remains the fact here that an unsuccessful attempt to perverse the course of justice has been made in most serious circumstances. The nature of this approach and the determination that it shows to subvert the trial process leads me to the view that there is a high risk of some further attempt of some kind being made. I do not know that Johnson is behind this. I do not have to know I have to have substantial grounds to believe that he will seek to obstruct the course of justice or putting it another way that there is a real danger that he might interfere. In light of my assessment of him last year in this connection when refusing bail and the circumstances of these events I am satisfied that there is such a real danger and he will have to remain in custody."

29. On 1st August the judge again referred, so far as Mr Johnson is concerned, to the possibility of interference with the course of justice and said:

"... so far as the other objection is concerned, [by the other objection he meant the objection that Mr Johnson would interfere with the trial] that relating to the interference with the course of justice, in my judgment there are no conditions that can safeguard the position in this case and he will have to remain in custody, as will Mr Lipinski."

30. Essentially the questions are (a) whether the material before the judge was sufficient for him to form the view that there was a substantial risk that Mr Johnson would interfere with the course of the trial. So far as that is concerned, as I have already said, I do not have before me the material that was before the judge in May 2004, but it seems to me I must proceed on the basis that the judge said what he quoted himself as having said on that date, and there is nothing before me to indicate that the view he formed, and the inferences he drew from Mr Johnson's behaviour, as to the risks interference with the course of justice, was unjustified. That is to say that the two matters, to which I have referred, the alleged concealment of the bank accounts and the concealment of a page of a passport, justified not only a conclusion that Mr Johnson might abscond, but that his personality was such as might lead him to seek to interfere with the course of justice.
31. Mr Johnson is of course entitled to rely on the fact that he attended trial when required between May 2004 and 1st August 2005. However, that is not to the point, given that there was in fact, as the judge found, an attempt to interfere with the course of justice by seeking to approach and bribe the juror, and that there was a substantial risk that that was done at the instigation of one or more defendants. Having reached the conclusion he had in relation to Mr Lipinski and the conclusion he had in respect of Mr Johnson in May 2004, it seems to me that the judge had substantial material before him to justify the withdrawal of bail.
32. There were the two matters to which I have referred plus the alleged role of Mr Johnson in the fraud, plus his relationship with Mr Lipinski. In the circumstances, so far as Mr Johnson is concerned, again I grant permission since the matter seems to me to be arguable, but for the reasons I have given I refuse to interfere with the decision of the crown court. Both applications would therefore be dismissed.
33. MR HALL: Could I apply for the costs. It was always going to be a substantive rolled up hearing. The total costs of this proceedings be £1,750. Can I ask for 875 against each defendant?
34. MR JUSTICE STANLEY BURNTON: What is the position? Are there restraint orders or receivership orders which affect the costs?
35. MR HALL: They both have restraint orders not to be enforced without the leave of the court.
36. MR JUSTICE STANLEY BURNTON: You can enforce it. They cannot voluntarily pay without leave of the court.
37. MR HALL: Just the order and how it is paid.
38. MR JUSTICE STANLEY BURNTON: Is there a receiver appointed in respect of the assets of both of them?
39. MR COMRAD QC: There is not in neither case.
40. MR FISHER: There is in Mr Johnson's case. A company called Kroll have been appointed the receiver.
41. MR JUSTICE STANLEY BURNTON: He should have no control.
42. MR FISHER: That is absolutely right.
43. MR JUSTICE STANLEY BURNTON: What do you say about costs in principle? It is £875 against each.
44. MR FISHER: There is probably not a lot I can say, if anything.
45. MR COMRAD QC: We make no submissions, my Lord.
46. MR JUSTICE STANLEY BURNTON: The Revenue and Customs are entitled to their costs. I summarily assess them as £875 as against each of the claimants. One order for each case. Those orders not to be enforced in so far as they are inconsistent with any order made by this court under the proceeds of Crime Act.
47. MR FISHER: It is the Criminal Justice Act. It was so long ago.
48. MR JUSTICE STANLEY BURNTON: Those orders not to be enforced in so far as they are inconsistent with orders made under the Criminal Justice Act 1988, without leave of who made the Restraint Order: the crown court or the High Court.
49. MR FISHER: Moses J made the order in Mr Johnson's case.
50. MR JUSTICE STANLEY BURNTON: I am just going to say without leave of the court and work out which court it is. These matters have gone down to the crown court.