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
		5 May 2006

1. LORD JUSTICE KEENE: We are going to give a short judgment in this matter because we have indicated that we propose to grant this renewed application for permission to seek judicial review. I make it clear that this is not a challenge to the refusal of bail as such but to the judge's refusal to have the bail application heard in public and with the claimant present.
2. For my part, I am not very impressed by the arguments about the personal attendance of the claimant at the bail hearing. He was represented by a lawyer and, having looked at the Strasbourg jurisprudence with some care, in my judgment that suffices to meet the requirements of Article 5 of the European Convention on Human Rights. I do not regard this bail application in the Crown Court as being part of the trial process. Were it to be so, it would find itself coming into difficulties in terms of the jurisdiction of this court on judicial review.
3. There is a further point made by Mr Gottlieb this morning on behalf of the claimant which is that it is helpful for a judge on a bail application to see the defendant in the dock. I do not regard the visual impression gained by a judge on those occasions of being of real significance. Having said all of that, I would not shut this point out. So far as I am concerned, it can be argued on behalf of the claimant at the substantive judicial review hearing.
4. The position with regard to the decision to hold the hearing in chambers is rather different. Rule 16.11 (1) of the Criminal Procedure Rules 2005 states:

"The criminal jurisdiction of the Crown Court specified in the following paragraph may be exercised by a judge of the Crown Court sitting in chambers."

I emphasise the word "may" in that provision. Paragraph 2 (a) then specifies "hearing applications for bail". That provision undoubtedly provides a power to hold bail applications in chambers, that is to say, in private, thereby excluding the public.

5. The judge dealing with this matter, the Common Sergeant of London, gave his ruling in the following terms at page 6 E-G of the transcript:

"Thank you. I am grateful for the application Mr Gottlieb. The rules are clear and for a reason. The procedure in this court is clear. There is absolutely no distinction between this applicant and any other. In my view there is nothing that distinguishes this case from any other. I intend to continue with this application in chambers unless it is withdrawn for consideration."

The judge seems from that passage to have proceeded on the footing that a hearing in chambers is to be treated as the norm for bail applications and that there has to be some special factor present in a case to take it outside of the normal run of things. That is perhaps understandable. It is in our experience the general practice. It is how, for example, Blackstone's Criminal Practice 2006 treats Rule 16.11 (see Blackstone's paragraph D 644).

6. In the light of the general presumption in favour of open justice, especially in cases where the liberty of the subject is involved, it seems to me that that working assumption of our Crown Courts - which, I note in passing, is in contrast to the practice of the Magistrates Courts - requires fresh consideration. I am reinforced in that view by the passage from the Law Commission's Report No 269 paragraph 1140 which states:

"Under the present arrangements there seems to be no reason why, if the defendant wants the hearing to be in public, the hearing should be in private against his or her wishes. The power exists for the court to hold it in public and we would have thought it inconceivable that any judge would refuse such a request by the defendant unless there was some other freestanding reason for it to be held in camera."

Obviously there will be cases where it is appropriate to hold the hearing in private, sometimes indeed to protect the interests of the defendant, for example, from media publicity which could prejudice his trial. But it seems to me that it is properly arguable that the discretionary power in Rule 16.11 does not imply that the starting presumption should be a chambers hearing.

7. Secondly, it is also arguable that the judge in the present case may have misconstrued in any event what Rule 16.11 actually says. He is recorded just before his ruling as saying (transcript page 5H to page 6A):

"The rule and the Bail Act say that they should be heard in chambers unless the court directs otherwise."

That is not what the rule says. The judge was arguably under the impression that the rule - indeed, the Act - expressed in clear terms a presumption of a chambers hearing. That, too, may undermine his decision.

8. For these reasons I would grant this renewed application for permission to seek judicial review. I would not confine it, as I have indicated already, solely to the issue of the hearing being in public.
9. We have been asked by Mr Gottlieb to make an order now quashing the judge's decision in these respects and to remit the matter to him because of the inevitable delay which will occur in having a substantive hearing. I am not persuaded of the merits of such a course. That would, in effect, be making a substantive decision on an ex parte application. The substantive decision in this case needs the Crown to be present. The implications of it may prove to be quite far-reaching. The court is going to be assisted by a skeleton argument from the Crown. I would encourage the Crown to appear at the substantive hearing. I, for my part, would direct that the substantive judicial review application be heard by a two-judge Divisional Court. Because it involves the liberty of the subject, it should be heard with some despatch and certainly before the end of this term, that is to say by 26 May. I would direct that a skeleton argument on behalf of the Crown be filed and served by 4 pm on Tuesday 16 May, though I would grant liberty to apply to the Crown if they need a short extension.
10. MR JUSTICE JACK: I agree that permission should be given. It seems to me that looking at it from the defendant's point of view, it is as or more important that he should have a right to be present and that members of the public should be present. That may not be supported by the Strasbourg jurisprudence.
11. As to the issue of whether the hearing should be in public or in chambers, that is in camera, I wholly agree with my Lord. I agree with the directions that have been proposed.
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