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
		20th April 2005

MR JUSTICE COLLINS:

1. This is an application for permission to seek judicial review of a decision of Her Honour Judge Freedman sitting at the Harrow Crown Court whereby she refused to extend the claimant's bail. The decision in question was made on 21st March 2005. He is due to stand his trial on 16th May next.
2. The background, so far as material, is as follows. On 4th September 2004 the claimant was arrested following allegations regarding his behaviour towards a neighbour and his apparent possession of a firearm. He was charged as a result with two offences, one of affray and the other possessing an imitation firearm with intent to cause the neighbour to believe that unlawful violence would be used, that being contrary to section 16A of the Firearms Act.
3. I know no more about the circumstances of the offence than that, although Mr Rudolf informed me that he understood that the imitation firearm in question was in fact a cigarette lighter.
4. In any event, the claimant was remanded on bail to appear at the Magistrates' Court the next day. Since the section 16A offence is indictable only, he had to be committed to the Crown Court. He was granted bail on a number of conditions, the details of which I do not need to indicate for the moment. He attended a number of hearings, preliminary hearings and pleas and direction hearings, and there was no suggestion that he had either breached any of the conditions of his bail, or failed to surrender when he was due to do so.
5. Eventually the trial was due to take place on 2nd February 2005. He attended the Harrow Crown Court and I am told that his counsel was forced to withdraw. It perhaps matters not why that occurred. The result was that the trial had to be adjourned. It was refixed on 21st March and he was granted conditional bail again.
6. It is, I gather, the practice of the Harrow Crown Court to require an attendance shortly before the trial date for the sensible reason that if there is any change of circumstances, for example there is likely to be a change of plea, that can be dealt with then, rather than everyone turning up, witnesses and all, on the hearing date only to find that the defendant at the last minute pleads guilty and therefore there is a waste of everyone's time.
7. The case, as I say, was listed for hearing on the 21st and on the 18th there took place the review. The claimant attended and maintained his pleas of not guilty to the offence.
8. On 21st March the defendant failed to appear when he should have done, that is to say ready for the trial to commence at half past 10 in the morning. He was telephoned, presumably by or through a representative of his solicitors, and he then made his way to court, but he arrived about an hour and three quarters late. He then apparently entered guilty pleas to alternative charges, but, unfortunately, the prosecution chose as one of the alternatives an offence which was summary only. One was using threatening, abusive or insulting words or behaviour contrary to section 4 of the Public Order Act. That could have been an alternative to the affray. The offence was possessing an imitation firearm in a public place contrary to section 19 of the Firearms Act. That was a summary only offence which carried a maximum penalty of six months. The result was that the plea to it was a nullity and it was necessary for the matter to be tried, if there was to be a contest, on the more serious offence. The claimant decided that he was going to maintain his pleas. Therefore it was decided that it was necessary that there should be a trial.
9. The learned judge in the meantime remanded the claimant in custody, despite the application that bail be continued.
10. It appears that there was an immediate realisation, or a quick realisation, of the mistake and it was appreciated that it was necessary to have a trial. It could not be done immediately. So it was that the matter was put over.
11. On 30th March the claimant appeared again before the court for the matter further to be sorted out and for it to be decided when the trial date should be. It was then that the trial was fixed for 16th May. At that hearing Mr Fidler, the solicitor appearing on behalf of the claimant, made a fresh application for bail, arguing that there had been a change of circumstances, the circumstance being that he now had available a security who was prepared to stand in the sum of £1,000.
12. Again, it is most unfortunate that I have no details of the excuse that was given, or the reasons that were put forward for the failure to attend on time on 21st March. The best information that I have comes from observations made by the judge in an acknowledgment of service which has been produced by the Crown Court. I should have said that, of course, the Crown Court was served with this application, as was the Crown Prosecution Service. The Crown Court has put in an acknowledgment of service in which the judge's comments are set out. There has been no attendance by or on behalf of the CPS.
13. What the learned judge said, so far as material was this:

"The defendant arrived at 12.20 and said he had overlooked the trial. He had been at the trial readiness hearing the preceding Thursday."

14. The date suggests that that may not be entirely correct, because if the dates were the 18th and the 21st respectively, it could hardly have been a Thursday. The 18th would have been a Friday.
15. In any event, what she says is that he had been at the trial readiness hearing the preceding Thursday when he would have been told or reminded of the trial date's imminence.

"I found that he acted unlawfully. In the light of the explanation given there could be no other finding."

16. As I said, that is the only information that I have relating to the excuse that was put forward for failure to attend. As it seems to me, if the claimant had wanted to put forward any other material he should have done so, and in the absence of anything else I am bound to rely on what is there stated.
17. What the learned judge said in giving her reasons for refusing bail was:

"I accept that he came, eventually, under his own steam, but the fact is that he was in court, when it was made abundantly clear that the trial date was the following week and when it was to be and he did not attend court when a phone call was made and then he arrived at 12.15 for a 10.30 hearing.

In those circumstances, I fear that no matter who obligates themselves on his behalf, if he feels like not turning up on the date of his trial, then he will not and in those circumstances, I fear he would fail to attend at the proper time and place and date if I were not to remand him in custody."

18. Mr Rudolf has raised certain what I might categorise as technical points in making his submissions in this case. Before I get to those I should say that, as is well-known, the Criminal Justice Act of 2003 removed the inherent power of the High Court to grant bail and thus Parliament has made it plain that the Crown Court judges are to be regarded as the last resort for those who are applying for bail. There is no right to come further in general, as there used to be, to the High Court. But there is still, and it was preserved in the 2003 Act, the right to seek judicial review, or, insofar as it could be material, habeas corpus, and there have been a number of applications for judicial review during the course of this year.
19. The Divisional Court dealt with the matter in M v Isleworth Crown Court [2005] EWHC 363 (Admin). Essentially what the Court there decided was that there was jurisdiction to consider a claim that bail had been refused in circumstances which showed that that refusal was erroneous in law, but that it was only in exceptional cases that the Court should intervene. In paragraph 12 of his judgment Maurice Kay LJ said:

"The test must be on Wednesbury principles, but robustly applied and 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 be refused on a basis such as 'I always refuse in this type of case', or some other unjudicial basis, then this Court would and should interfere."

That is a very narrow basis for this Court to act.

20. Mr Rudolf points out that Article 5 of the European Convention on Human Rights is applicable, because there is a decision to deprive an individual of his liberty. As a general proposition a deprivation of liberty can only be justified if it is clear that it is proportionate. The matter has been referred to by the European Court in a number of cases.
21. In an earlier case, which I decided on 7th April last, The Queen on the Application of Shergill v Harrow Crown Court [2005] EWHC 2005 (Admin) I referred to the decision of the Court in Thomassy v France [1992] 15 EHRR 1 which indicated that there was a requirement to examine all the circumstances arguing for or against the existence of a genuine requirement of public interest justifying, having due regard to presumption of innocence, a departure from the rule and respect for individual liberty. That case was in fact concerned with the need to give reasons, but it indicates the principle which is applicable in all these cases.
22. So far as domestic law is concerned, those principles are indeed reflected in the Bail Act 1976, which recognises in section 4 that a grant of bail must be made unless there are good reasons to refuse. Section 4(1) provides specifically:

"A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act."

So the principle is grant bail unless.

23. One then goes to Schedule 1 to see what the exceptions to the right of bail are. The general exceptions are set out in paragraph 2. They are as follows:

"The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant if released on bail (whether subject to conditions or not) would --

(a) fail to surrender to custody, or

(b) commit an offence while on bail, or

(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person."

There are then in the following paragraphs specific matters which can be relied on to justify a refusal to grant bail.

24. Parliament has added a number of paragraphs which indicate that if there have been particular actions by a defendant it may be in effect presumed that he should not have bail unless the court is satisfied that there is no significant risk that if released on bail he would fail to surrender to custody, or would commit an offence, or whatever the situation in question might be. That, in effect, reverses the usual burden whereby bail must be granted unless the court is satisfied of a particular situation. It then becomes necessary for the court to be persuaded, because of what has happened, that there is no significant risk that he would fail to surrender to custody, or not commit an offence, or whatever.
25. The relevant paragraph for our purposes is paragraph 6. That reads as follows:

"(1) If a defendant falls within this paragraph he may not be granted bail unless the court is satisfied that there is no significant risk that if released on bail, whether subject to conditions or not, he would fail to surrender to custody;

(2) Subject to subparagraph (3) below the defendant falls within this paragraph if --

(a) he is aged 18 or over, and

(b) it appears to the court that having been released on bail in or in connection with the proceedings for the offence he failed to surrender to custody.

(3) Where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody he does not fall within this paragraph unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time."

26. It is to be noted that the expression "surrender to custody" is given a particular meaning by section 2(2) of the Bail Act which defines it as follows:

"... in relation to a person released on bail, surrendering himself into the custody of the court or of the constable (according to the requirements of the grant of bail) at the time and place for the time being appointed for him to do so."

So it is not a failure to surrender so that he has to be brought to the court; it is a failure to surrender at the appointed time. In the circumstances of this case the appointed time was, it is common ground, half past 10 in the morning. Accordingly, on the face of it, he was in breach of paragraph 6, in the sense that it did appear to the court that he had failed to surrender to custody without reasonable cause for that failure. The only excuse which apparently was put forward was that he forgot. It is plain that the judge took the view, and in my judgment was clearly not only entitled but bound to take the view, that he had failed without reasonable cause.

27. Mr Rudolf submits that if one looks at section 6 of the Bail Act one finds that there is an offence of failing to surrender to custody, which is established if a person who has been released on bail fails without reasonable cause to surrender to custody. His submission, if I correctly follow it, is that in those circumstances it is incumbent that the approach of the court is to establish to its satisfaction that the criminal offence created by section 6, which is mirrored by the language of paragraph 6, has been established. He has drawn my attention to some Court of Appeal authorities which make it clear that it is indeed necessary for it to be established that there is indeed a reasonable excuse and that can only be done by enabling the defendant to give such explanation as he can in the context, as I say, of establishing the matter beyond reasonable doubt.
28. He refers to the Practice Direction, that is to say the Practice Direction in Criminal Proceedings Consolidation [2004] 1 WLR 589. That Practice Direction deals with the manner in which failure to surrender should be dealt with. Paragraphs 1.13.14 to 1.13.16 deal with the relationship between the Bail Act offence and further remands on bail or in custody.
29. 1.13.14 reads:

"When a defendant has been convicted of a Bail Act offence, the court should review the remand status of the defendant, including the conditions of that bail, in respect of the main proceedings for which bail had been granted.

1.13.15. Failure by the defendant to surrender or a conviction for failing to surrender to bail in connection with the main proceedings will be a significant factor weighing against the regranting of bail or, in the case of offences which do not normally give rise to a custodial sentence, in favour of trial in the absence of the offender.

1.13.16. Whether or not an immediate custodial sentence has been imposed for the Bail Act offence, the court may, having reviewed the defendant's remand status, also remand the defendant in custody in the main proceedings."

30. It is quite plain from the language of 1.3.15 that the question of whether bail should be continued or removed in connection with the main proceedings is a matter which does not depend upon a conviction for failing to surrender. It depends upon either a conviction or upon a failure to surrender. Paragraph 6 makes it clear that if it appears to the court that he has failed to surrender, and the court does not take the view that there was reasonable cause for the failure, then there is an obligation to refuse bail unless the court takes the view that there would be no significant risk that if released on bail he would fail to surrender to custody.
31. Mr Rudolf has submitted that although paragraph 2 uses the expression "need not be granted bail", and paragraph 6 uses the expression "may not be granted bail", there is no difference between the two. Each means that there is a discretion. It seems to me that that is not right. Parliament has deliberately used the two different expressions, "need not" and "may not". "Need not" manifestly conveys a discretion. "May not" is prohibitive and makes it plain that what was intended was that if a failure to surrender was established then the court should not grant bail unless the court was satisfied that there was no risk of a further failure to surrender to custody -- as I say, putting, as it were, the burden the other way round.
32. Accordingly what the learned judge had to decide on this occasion, because, as I say, it is perfectly plain that there was no reasonable cause for the failure, was whether in all the circumstances she was satisfied that there was no significant risk that if released he would fail to surrender to custody. She decided quite plainly that she was not satisfied that there was no significant risk. She said in terms that she feared that if he felt like not turning up then he would not. Thus in her view paragraph 6 justified her in refusing bail.
33. It is true that she does not specifically refer to paragraph 6, or the approach that was appropriate under paragraph 6, and it may be that it would have been more satisfactory had she done so. But, as it seems to me, in all the circumstances it is plain that her decision has to be looked at in the light of paragraph 6.
34. Having said that, one still must bear in mind the overall principle that bail should only be refused if there is a good reason to refuse it, and the approach that must remain is that it is in all the circumstances proportionate to refuse bail. That is the test that has to be adopted by the Crown Court judge.
35. On review this Court's role is clearly narrow. It is not for this Court to decide for itself the matter afresh. What this Court has to do is to decide whether in all the circumstances the decision made by the Crown Court judge was one which fell within what I have described in Shergill as the "bounds of reasonableness". I do not myself think that it is necessarily particularly helpful to refer to strict application of Wednesbury principles. What matters is that the Court has to be persuaded that the decision was not one which the judge below was entitled to reach. That will very rarely be the position, and I echo what was said by Maurice Kay LJ in pointing to the fact that Parliament has decided that the Crown Court judge should be the arbiter. The Crown Court judge constitutes, for the purposes of Article 5 of the Convention on Human Rights, the independent court which has to decide the issue. The Convention does not require any right of appeal from that independent court. This is not a strict appeal. It is a judicial review, so there is, in my judgment, no reason why the approach of this court should be other than a strict review approach.
36. I have, I should add, had my attention drawn to a decision of Gray J, given in the vacation on 6th January last, The Queen on the Application of Rozo v Snaresbrook Crown Court and the DPP [2005] EWHC 75 (Admin). In that case the application for bail was based on more general Article 5 grounds, and the learned judge was pressed with the need for him to have regard to Article 5 and to approach the matter on the basis that Article 5 applied. He was also pressed with the decision of the House of Lords in Daly v Secretary of State [2001] UKHL 26, which is the case in which their Lordships indicated that in situations in which fundamental rights, such as the right of liberty, were engaged there should be a more intensive review and that the approach should be more akin to proportionality than irrationality.
37. It seems to me that for the reasons I have already given that approach is not strictly the correct approach at this level, although it would undoubtedly be the right approach if this were a decision of a review court dealing with an administrative decision against which there was no appeal. However we are not dealing with an administrative decision, but we are dealing with the decision of a judge.
38. Having said all that, I now have to consider whether in all the circumstances this particular decision was one which can stand the Wednesbury test. It seems to me that it is difficult to follow why it can. The claimant had complied before 21st March with all conditions of bail and had surrendered when he was due to do so. The prosecution had not objected to the continuation of bail. The prosecution in addition, and presumably the judge must have approved, had accepted pleas to lesser offences. It is true that it was believed that the section 19 offence was indictable, so carried potentially seven years' imprisonment, but it is clear that it was very much a lesser offence and involved no question of intent. So far as the affray or Public Order Act offence is concerned, again it must have been appreciated that section 4 was an offence which carried a very much lesser penalty than that of affray. In all the circumstances, it would seem that the offending, albeit an imitation firearm was involved, cannot be said to be one of the greatest seriousness, at least on the face of it. That is undoubtedly a matter which is material.
39. The learned judge as I have indicated, stated that she took the view that if he felt like not turning up on the day he would not. It is difficult to follow what justification there was in reality for that approach. True he had failed to turn up, true the only excuse apparently put forward was that he had forgotten. Unfortunately, I have no indication as to any excuse that may have been put forward to explain why he had forgotten. But it is difficult to see how it could follow from that one failure, which admittedly was a significant failure and one which, unfortunately, took place on the day on which he was due to be tried, that he would in the future do the same thing, or he might in the future do the same thing. It seems to me that in the light, as I say, of the general approach to bail, and even bearing in mind Parliament's views as set out in paragraph 6, there was precious little, if any, evidence to justify the fear which the learned judge said that she had.
40. It is exceedingly rare for this Court to intervene, but it seems to me in all the circumstances that this is such a rare case. I am entirely satisfied that the decision made by the learned judge was one which will not stand the Wednesbury test: it is not within the reasonable bounds of what was available on the facts to her. In all the circumstances it was, in my judgment, unreasonable for her to have refused bail, subject, of course, to appropriate conditions.
41. In those circumstances I propose to grant permission for judicial review, to remove the need for all further procedural steps, treat this as the hearing of the claim and to grant relief in the form of quashing the decision to refuse bail and remit the matter to the Harrow Crown Court for bail to be reconsidered in the light of this judgment, subject to such conditions as may seem appropriate to the judge who decides the matter. Such referral obviously must take place as soon as reasonably possible.
42. I should perhaps add before I conclude that this case has shown the need for the Court to be fully informed of any material circumstances. In this case the Court has not been fully informed either of the circumstances of the offending, that is to say what was the strength or the seriousness of the case, which is always a material consideration, nor was the Court provided with any detail of how it came about that he forgot, or what steps, if any, had been taken by his solicitors to inform him, if that was considered necessary, or to remind him that he was due to attend. It may be that no steps were appropriate. But that is the sort of matter which in a case such as this the Court should be in a position to know.
43. However, for the reasons that I have sought to indicate, in the circumstances of this case I take the view that, even with the lack of information, the decision of the Crown Court judge cannot stand.
44. MR RUDOLF: Three points, if may. Four. Just for the purposes of your Lordship's transcript, as and when it is completed. The time that elapsed before he arrived was 105 minutes, rather than the slightly lower time that your Lordship indicated.
45. MR JUSTICE COLLINS: At one point the judge said 12.15 and another point 12.20. Sorry, it's my fault. It was an hour and three quarters. I will make sure that is corrected.
46. MR RUDOLF: The second one is the section 4 Public Order Act was they were put on the indictment, section 4, and the section 19.
47. MR JUSTICE COLLINS: So what was the province of section 4?
48. MR RUDOLF: Nothing, but it was held that as the pleas had been offered as a package.
49. MR JUSTICE COLLINS: I see. So it was not a question of nullity. Section 19 was a nullity, but the section 4 was not.
50. MR RUDOLF: No, not as far as the law was concerned.
51. MR JUSTICE COLLINS: I follow, it was decided, in the circumstances, as the Crown took the view that the firearms offence ought to be pursued.
52. MR RUDOLF: Yes, so back to square 1.
53. MR JUSTICE COLLINS: I follow. I will make that clear.
54. MR RUDOLF: Thirdly, the bail condition offered was a security as opposed to a surety.
55. MR JUSTICE COLLINS: Sorry.
56. MR RUDOLF: Again, a small point. Fourthly, I fully apologise, as I think I have, for not having the information regarding the reasons for the forgetfulness. With regard to the other matter that your Lordship raised about the facts of the case, whilst those are always relevant, the determination was that in the sense and for the reasons that the judge had refused bail it was such a narrow point --
57. MR JUSTICE COLLINS: I follow that, but obviously the more serious the offence, the more one can justify a fear of a failure to surrender. It is a matter that the Bail Act itself requires to be taken into account. It is simply that if the circumstances are less serious, and where, as here, apparently the Crown were prepared to take the view that they did on the basis of the pleas that were offered, that again, I would have thought -- well, I do think, is a factor that must always be taken into account.
58. MR RUDOLF: Certainly and that was in the materials before your Lordship. I appreciate that. May, if I need to, have a costs assessment in this case?
59. MR JUSTICE COLLINS: You are legally aided, are you?
60. MR RUDOLF: Yes.
61. MR JUSTICE COLLINS: Yes, you may have the necessary order if you need it.
62. MR RUDOLF: The other matter was with regard to your Lordship's order. The decision of the Court, as I understand it, is to quash the decision and to refuse bail. Is your Lordship directing the grant of bail on conditions as the court is to so find?
63. MR JUSTICE COLLINS: No, what I am directing the court to do is to reconsider the grant of bail in the light of the judgment. The effect of that is that unless there is some other good reason that has arisen, and I can't think of any, the court will have to grant bail. But I can't and I don't think it is appropriate to make an order of mandamus or mandatory order rather. You can tell the court.
64. MR RUDOLF: It is almost as night follows day on the quashing of the order, the only reasonable response is to grant bail on conditions. Does your Lordships have any observations surrounding the conditions that were offered?
65. MR JUSTICE COLLINS: In the light of what had been the previous conditions, I can see no objection to the conditions with the addition of the security.
66. MR RUDOLF: I am grateful indeed for that. My Lord, in the good old days we would, to use the phrase, hang around for the order to come out of court 37 and fax it to the relevant prison.
67. MR JUSTICE COLLINS: Well --
68. MR RUDOLF: Your Lordship sees where I am going with this.
69. MR JUSTICE COLLINS: I see that the associate is at this very moment typing it out. So I am sure that you will get it fairly recently. You will have to go to the office to get it.
70. MR RUDOLF: Despite the old procedure is not around, we will follow the old outcome and just wait.
71. MR JUSTICE COLLINS: I suspect, I am afraid, that you won't get the Harrow Crown Court to do anything until possibly the day after tomorrow, because they have got to arrange for him to attend and so on.
72. MR RUDOLF: In the circumstances, I rather suspect if it can be done --
73. MR JUSTICE COLLINS: That is matter between you and the Crown Court.
74. MR RUDOLF: Indeed.
75. MR JUSTICE COLLINS: Obviously it should be done as soon as reasonably possible.
76. MR RUDOLF: My Lord, thank you very much indeed, and can I also thank this Court and the staff for the listing which was very much appreciated.
77. MR JUSTICE COLLINS: These matters obviously have to be dealt with speedily. We had tried to make it clear that we don't encourage these. As it happens, two of them that have come before me have had sufficient merit for me to quash, one has not.
78. MR RUDOLF: If I may say so, your Lordship's direction in Shergill would appear the most pragmatic way of dealing with things.
79. MR JUSTICE COLLINS: I hope so.
80. MR RUDOLF: And really unless a single judge in the most robust terms says this is a no hoper, then that ought to be the end of the matter.
81. MR JUSTICE COLLINS: I would have hoped that most people would see the writing on the wall.
82. MR RUDOLF: Indeed, thank you very much.