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
		Thursday, 7th April 2005

1. MR JUSTICE COLLINS: This is an application for permission to seek judicial review of a decision of Circuit Judge Marney, sitting at the Snaresbrook Crown Court on 18th March 2005, to refuse bail to the claimant. There is no doubt that although the claimant appeared before the learned judge on arraignment and was to be tried on indictment, that this court nonetheless has jurisdiction. I say that because of a decision of the Divisional Court, consisting of Maurice Kay LJ and Moses J, given on 2nd March of this year, in which the question was raised and dealt with whether section 29(3) of the Supreme Court Act prevented the court from having jurisdiction.
2. In the case to which I refer, which is M v Isleworth Crown Court [2005] EWHC 363 (Admin), Maurice Kay LJ, at paragraph 7, referred to observations of Lord Browne-Wilkinson in R v Manchester Crown Court (ex parte DPP) [1994] Cr.App.R 461 where this was said:

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

In the light of that observation, Maurice Kay LJ decided that there was no jurisdictional bar to the grant by this court of a judicial review in appropriate circumstances. Equally, it decided that because section 17(6)(b) of the Criminal Justice Act 2003 (which is in the section which abolished the right to apply to a judge of the High Court for bail in general) it was provided,

"Nothing in this section affects any right of a person to apply for a writ of habeas corpus or any other prerogatory remedy."

This court would have jurisdiction to consider an application for bail based upon the argument that it was wrong in law to have refused bail. So the test is one of review rather than appeal.

3. The background to this case is that the claimant was charged with an offence of affray. He was, at the relevant time, homeless and had an altercation with those who were in charge of a hostel from which he had been excluded and where he believed he ought to have been provided with accommodation. It seems that he did have, and maybe still to some extent does have, something of a drug problem in the sense that he has from time to time taken cannabis, and it may be that that could affect his approach to things. All this happened on 5th January.
4. The seriousness of the matter was that he appeared to be threatening to set himself on fire in a van, or set a van on fire, in which there was thought to be a canister of petrol. It may even have been that it was believed that he had some petrol which had been poured either on the van or near himself. The result of his threats and his flicking of a lighter were such that there was a real concern that he would do what he was apparently threatening to do. The evidence against him was that he was threatening to do it in order to get at those who were, in his view, refusing him what he thought were his rights. As I understand it, his case is that he was not doing that at all. The only threats he was making were to harm himself and therefore others should not have been put in fear by what he was doing. The police were so concerned that they managed to distract his attention, break the windows of the van, and so get to him and prevent anything being done. That was the essence of the matter.
5. He was initially remanded in custody by the Magistrates and they required, very sensibly, a psychiatric report to be obtained. The reason why he was remanded in custody at that stage was largely because he had no fixed abode, and there were obvious concerns in the light of the allegations that were made and the evidence put before the Magistrates. In due course a report was obtained which indicated that he was not suffering, in the view of the reporter, from any mental illness but he had indeed had variable moods and he had not always behaved in a particularly steady manner. However, his parents were concerned to look after him and it was arranged that he could live at home. Accordingly, bail was granted by the Magistrates on a number of conditions but the important one was, as I understand it, that he resided with his parents at their home.
6. Those bail conditions were adhered to and, as far as one can see, no problems arose. Again, as I understand it, although the police had initially objected to bail for the very good reason that there was no fixed abode, subsequently when it was known that he would be able to live at home, the objections were not maintained and certainly they have not since been maintained. The matter was committed to the Crown Court. Negotiations took place between counsel, and I can refer to them because they were referred to before the judge in the Crown Court and are part of the material before me. The upshot of those was that the prosecution offered to accept a bind over if the claimant was agreeable to take that course. He decided that he was not so agreeable because he was not prepared to admit that he was guilty of any form of offending. Accordingly, he decided that matters should be pursued further.
7. The learned judge, when this matter was raised before him on 18th March, as I have said, just before arraignment, indicated that he was concerned because of the nature of the allegations and certainly the impression he conveyed, judging from the transcript, was that he might not have been willing to agree to accept that it was a proper case for a bind over, although he made no final decision on that matter because it was not a material consideration because of the decision made by the defendant. So it was that the defendant pleaded not guilty.
8. The question was then raised by the learned judge of reconsideration of bail. There is no doubt at all that on the surrender to the custody of the Crown Court on arraignment, the Crown Court has the power, and indeed has the duty, to consider afresh the question of bail. I do not doubt that normally the judge will extend bail if there has been no objection, if a defendant has been on bail and if there have been no problems arising from that bail. He is clearly entitled to reconsider for himself afresh whether bail should be granted. Of course, he must do so in accordance with the terms of the Bail Act which require that bail be granted unless there is a reason set out in the first Schedule to the Act why it should not be granted. There was no suggestion here that the claimant had in any way breached any of the conditions of his bail, or indeed done anything to show that he was a danger to himself or to anyone else.
9. What appears to have concerned the learned judge was that he felt, in the light of the matters contained in the statements, that the claimant might harm himself, indeed, might possibly commit suicide. The way he put it was this, at page 12 of the transcript:

"It seems to me that the judge dealing with the case as I have today has a public duty and that is to look at the matter and to consider, amongst other things, the risk to the public of the commission of a further offence, and that includes in this case the real risk of the defendant causing significant harm to himself, as indicated by the papers in this case."

He went on to recognise that they were but allegations. He concluded by saying that he was required to consider whether there were circumstances which showed a risk to the public of further offences, which included the defendant himself. I am not entirely clear what he was intending to convey by those words because what clearly was troubling him was the concern that the defendant might harm himself. Perhaps he was concerned that in so doing he might also in some way harm the public if he did anything publicly, as he had done in the circumstances which gave rise to the prosecution.

10. So it was that he decided there should be a remand in custody. I have already referred to the case of M, and the court in that case also made observations as to the correct approach which should be adopted. At paragraph 11 Kay LJ said this:

"Although we have jurisdiction by reason of section 17(6)(b), 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 has amounted to wasteful duplication, Parliament has, by a side wind, created a more protracted and expensive remedy to a common application.

(12) Mr Montgomery, on behalf of M, recognises this in his submissions when he says that judicial review is appropriate only in a rare case where a judge in the Crown Court has plainly gone wrong in an extreme way. I do not feel able to adopt that as a test. The test must be on Wednesbury principles with this court always keeping in mind that Parliament has understandably vested the decision in judges in the Crown Court who have everyday experience of and feel for bail applications. Of course, if bail were to be refused on the basis such as 'I always refuse this type of case' or some other unjudicial basis, then this court would and should interfere."

On the facts of that case he went on to indicate that if it had been left to him he would have granted bail, but that was not the test and on the Wednesbury approach it was not a case where the court should interfere. Indeed, he made it plain that it was only, as I have said, in exceptional cases that it would be appropriate for this court to intervene.

11. Mr D'Kruz has submitted that that is to adopt too narrow an approach. He submits that Article 5 of the European Convention on Human Rights is in play because this clearly is a question of the liberty of the individual. The court in Jablonski v Poland (2003) 36 EHRR 27 , decided that there had been a breach of Article 5 rights in that case, emphasising that there must be relevant and sufficient grounds for detention and that it must be necessary and in accordance with the law. Effectively, the decision must be bail unless. That, of course, is the approach which the Bail Act requires to be applied in any event, and any judge sitting in the Crown Court, or indeed any Magistrate sitting in the Magistrates' Court, must apply that approach and can only refuse bail if there are substantial grounds for believing that one of the exceptions set out in Schedule 1 of the Act is applicable.
12. It seems to me that the right approach for this court must be to decide whether the decision of the Crown Court judge was one which falls within the bounds of what can be regarded as a reasonable decision. This court is a court of review but it is review of a decision of a circuit judge to whom Parliament has entrusted the grant of bail. True it is that this was, as it were, a first instance decision. In the case of a bail refused by a Magistrate there is a right of appeal to the Crown Court and the Crown Court judge's decision is therefore one made on a first appeal. It may well be that this court would be the more reluctant to intervene, because one has not only the question of review but also the question of a second hearing and a decision made on appeal. But there is no good reason why the approach should be any less restrictive where the decision is made at first instance by the circuit judge. It could be said, on the facts of this case, that it was rather equivalent to an appeal in the sense that the Magistrates had granted bail and the judge was refusing it. It may well be that the principle should be the same whether it is strictly made on appeal or whether it is made following a decision of the Magistrates, whether adverse or favourable to the defendant in question.
13. I do not, myself, think it is necessarily particularly helpful to put glosses on the rationality test as set out under the label of Wednesbury irrationality. As I have said, the test must be: Was this a decision which was in the bounds of what could be regarded by this court as reasonable? This court will not interfere unless persuaded that the decision falls outside those bounds.
14. What about this case? Mr D'Cruz submits that in reality there was no rational justification for the learned judge's decision. There was no evidence before him that the claimant had done anything to indicate, under the new arrangement whereby he was living at home, that he could be construed as any danger to himself or anyone else. The reality was that if remanded in custody, the likelihood would be that that in itself would affect his mind and might result in the very danger that the learned judge was seeking to guard against by the order that he made. Of course, the fact that the police were not opposing bail was a factor that could be taken into account, particularly as the police had been directly involved in the incident and had been, no doubt, concerned to decide for themselves what sort of a person they were dealing with. They had an opportunity to do so and to consider the circumstances. One cannot take that too far because obviously the decision is the judge and not that of the police. Nonetheless it is, as it seems to me, a factor to be taken into account.
15. This, I am bound to say, is a case where I have no doubt whatever that under the old provisions I would have granted bail. I do not think that the learned judge's decision was one which I would have been prepared to uphold. But that does not mean that judicial review succeeds. It is a strong thing to decide that a decision of anyone, particularly perhaps, a judge, was not a rational decision in the light of all the circumstances. But it seems to me that this case just comes the right side of the line in the sense that, in all the circumstances, there really was nothing which could justify the learned judge taking the view that he did in the circumstances that existed when the matter came before him. Exceptionally, and I would say very exceptionally, I regard this as a case in which it is possible for this court to intervene. Accordingly, I will grant permission, I will abridge all the necessary times and procedural steps and myself direct that bail be granted on the same terms as were granted by the Magistrates.
16. I think probably the best thing would be if I send it back to the Crown Court with a direction that they should grant bail on appropriate terms. They will probably be the same terms as before but there may have been a development that I do not know about. So I shall direct, obviously unless there has been some material development; for example, the parents no longer want him to live with them. That would be a factor that would be material. Assuming no change, I suggest bail on the same terms.
17. Before leaving this case I should say something about the procedural side of these applications. Inevitably, if they are to be made, and they are not to be encouraged -- this is a jurisdiction that will only be exceptionally exercised -- the right approach should be that the CPS must be notified and so should the court. The matter, no doubt, will normally be presented to the court on the basis of a matter of urgency. I would be very surprised if it was appropriate in any case that bail be granted on an interim application on the papers. Of course, one never should rule out the possibility of a truly exceptional set of circumstances but, in general, that cannot be expected to occur. What should be done should be that the matter should be put before the court with a view to it being requested that there be an oral hearing on notice within as short a time as reasonably possible. Obviously, if the application is made on a Friday it will not be able to be heard until the following Monday at the earliest. There is no point in making an application over the weekend. It can be notified in advance to the relevant bodies, but should be lodged with the court on the Monday rather than plaguing the weekend duty judge. Equally, there is no point in making this sort of application out of hours. It should always be made within hours to the Administrative Court.
18. Unless he takes the view that the claim is unarguable and dismisses it, the normal order that the judge would make would be to direct an oral hearing within a day or two. Time must be granted to enable the CPS, if they wish, to make representations and one must recognise that it would be, no doubt, easier and quicker for a London case to be heard earlier, whereas one coming from north of England might take a day or so longer to set up. The purpose of the oral hearing will be that the court will then, as I have done, effectively determine the issue. If it decides that it is an appropriate case to grant bail, it will grant permission, will abridge all the other procedural requirements and will make that decision then and there. Otherwise, it will decide either to grant permission and dismiss the application or to regard the application as unarguable and so refuse permission. That will depend, obviously, on the circumstances of the case. These applications will normally be dealt with by a single judge. I say normally. I cannot envisage circumstances where it would be right to require a Divisional Court, unless some really important point of principle was raised in any individual case. That seems to me to be the general way in which these cases should be approached.
19. MR D'CRUZ: My Lord, I am very grateful. I see the time. I do not want to delay your Lordship or the court's clerk unnecessarily. There are just a couple of points. One is a factual matter your Lordship referred to.
20. MR JUSTICE COLLINS: Did I get something wrong?
21. MR D'CRUZ: It is simply that the prosecution said they would agree to an adjournment so that they could review whether or not they would make a decision to --
22. MR JUSTICE COLLINS: I think the point is still a good one. The prosecution were prepared to think in terms of a possible --
23. MR D'CRUZ: Exactly. The second point, my Lord, is I wanted to make sure the mechanics were as quick as possible. Could I invite your Lordship to direct that the claimant be produced at Snaresbrook tomorrow so the decision about conditions can be taken?
24. MR JUSTICE COLLINS: Yes. You had better notify Snaresbrook or get the court to. Certainly I would regard that as desirable, if possible.
25. MR D'CRUZ: My Lord, the last thing and I am sorry I have to raise this. This application was prepared on the basis of default powers.
26. MR JUSTICE COLLINS: This is presumably one which is criminal, is it not? It is obviously a criminal matter. There are some such matters in some of the cases stated. I know it is up to the judge to decide whether to grant a representation order. I am quite prepared to do that if I have the power in this case. If I do not have the power it may be -- I think it must be. I cannot think of any other route.
27. MR D'CRUZ: I am very grateful my Lord because default power ran out as of yesterday.
28. MR JUSTICE COLLINS: You can have an order which covers the work done for today, certainly.
29. MR D'CRUZ: I am grateful. Thank you very much, my Lord.
30. MR JUSTICE COLLINS: I hope that it was not unhelpful for you to hear some of that because at least it indicates something of the approach that I think is appropriate. Obviously it does not tie you to accept it but it may be helpful to you to know the way I am thinking.
(A Short Adjournment)
31. MR JUSTICE COLLINS: What I have done is changed (ii). I have not directed that there be a readmission of conditional bail because I recognise circumstances may have changed. I say that the matter be remitted to the Snaresbrook Crown Court for reconsideration in the light of my judgment. Then you have the indication in (ii) in which I am quite happy to include that conditional bail should be granted unless there has been a material change, so I think that covers what you want. Also that it should be listed, if possible, tomorrow.