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
		24th February 2006

Friday, 24th February 2006

1. MR JUSTICE FORBES: This is an application for judicial review of the decision of HHJ Joseph given on 10th February of this year whereby he revoked the applicant's bail and remanded him in custody.
2. The applicant is 18 years of age. He has been charged with offences of theft and actual bodily harm said to have been committed on 13th August 2005. He was charged with the instant offences on 17th November 2005. At that particular time he was facing two other charges in matters to which I shall refer as matter A and matter B. In relation to matter A and matter B the applicant was remanded in custody. However, in relation to the instant charges, he was granted unconditional bail from the outset.
3. On a date between 17th November 2005 and 7th December 2005, the applicant was acquitted of matter A. On 7th December 2005, following a plea of guilty, he was sentenced in respect of matter B to a supervision order for two years, with a requirement that he attend the "Think First" programme and a "Basic Skills" assessment. From that date, therefore, the applicant's technical bail in the instant case became effective as a grant of unconditional bail in respect of the charges in question.
4. So it was that in relation to the instant charges the applicant attended Croydon Magistrates' Court on 14th December 2005. He pleaded not guilty and was remanded on unconditional bail.
5. On 25th January 2006 the applicant attended Croydon Magistrates' Court for committal proceedings. The instant charges were committed to the Croydon Crown Court for trial. The applicant was further remanded on unconditional bail.
6. On 10th February 2006 the applicant attended at Croydon Crown Court for a plea and case management hearing before HHJ Joseph. As it happens, the date for that PCMH had been changed by the court on three occasions. The applicant's solicitors had written to him on 8th February 2006 indicating that the hearing date had been changed yet again to 10th February. However, the applicant had not received that letter but he did attend court on 10th February because one of his co-defendants had informed him of the date. So it was that, although he had not been given the necessary information of the change of date by his solicitor (through no fault of the solicitor) the applicant had nevertheless complied with the terms of his bail and appeared at the Crown Court on the due date.
7. When the matter came on before the judge the Crown did not raise any issue or query with regard to the continuation of bail and did not make any objection to the continuation of bail when the matter was raised by the judge.
8. The judge did raise the matter of bail at a very early stage in the proceedings. This came as a surprise to counsel who was then instructed on behalf of the claimant, a Mr Edwards. It is helpful to quote from the transcript of what took place, as follows:

"JUDGE JOSEPH: Yes, all right. Then Connell and Brooks, you say Brooks has previous convictions?

MR CAPON: He has, your Honour, I will pass your Honour a set. They do seem to include a number of matters for failing to surrender. (Same handed)

JUDGE JOSEPH: Yes, two bail offences as recently as May of this year (sic), are they not? Well, why should I give Brooks Bail?

MR EDWARDS: Your Honour, he attended in the Magistrates' Court, he has attended this morning.

JUDGE JOSEPH: Yes, the fact that a defendant attends some hearings does not mean he is going to attend them all. These are recent bail offences in May of this year (sic).

MR EDWARDS: Your Honour, it is really something I would need to take instructions on before I could properly address you.

JUDGE JOSEPH: Well have a word with him now. In the meantime, Connell has no previous convictions, is that right?

MR CAPON: Not quite, your Honour. Mr Connell does have a conviction, an attempted robbery matter from Croydon Youth Court back in September 2004 though, a supervision order.

JUDGE JOSEPH: Right, well in Connell's case, is his address 3 Drake Road, Croydon?

MR CHARLTON: Your Honour, it is.

JUDGE JOSEPH: Yes, well, I will grant him bail with a condition of residence at that address. He is not to go to Halfords Store at 165 Windmill Road, Croydon. He is not to contact directly or indirectly any Prosecution witness.

(To Miss Fraser) [who I understand to be defence counsel for Smith] Would you like me to stop Smith's bail in this case as well?

MISS FRASER: Your Honour, no, can I ask you to continue just for a moment?

JUDGE JOSEPH: This other matter, did he commit it whilst he was on bail in respect of this matter?

MISS FRASER: I will have to check, your Honour, I am not sure.

JUDGE JOSEPH: He committed the other offence whilst he was on bail for this. Yes, well I am sorry, Miss Fraser, I am stopping his bail, he will be remanded in custody. Brooks?

MR EDWARDS: Your Honour, yes. At the time of the failing to surrender to Camberwell Green Magistrates' Court in February and March of last year, he wasn't living with his mother, he was living alone. His financial situation was not a happy one, he was essentially living off the charity of others and he failed to attend Camberwell Green Magistrates' Court on those two occasions because he simply didn't have the money to travel from Croydon into London.

The situation now is different, he is on Job Seeker's Allowance and he is living with his mother. This court is much closer to his current address and your Honour will see that in July of last year --

JUDGE JOSEPH: I might swallow that one for one failure, but two failures? That is more than careless.

MR EDWARDS: It was for financial reasons on both occasions.

JUDGE JOSEPH: Yes, well thank you very much. No, I am afraid I am going to remand him in custody on the grounds that he is likely to fail to attend. All right, thank you very much."

That concludes the quotation from the transcript and represents the sum total of the consideration of the bail issue insofar as it related to this applicant.

9. The matter then became the subject of an application for judicial review in this court and leave was granted in due course. As part of that overall procedure a suggestion was made by one of my brother judges that the matter could be referred back to Judge Joseph for reconsideration on the basis that he might like to consider whether the imposition of suitable conditions might deal satisfactorily with such fears as he had that the applicant might abscond. The matter did go back before HHJ Joseph on 21st February of this year and I have the transcript of those proceedings. However, it must be borne in mind that, whilst those proceedings do, to some extent, cast some light on the thinking that took place on 10th February 2006, they do not represent the decision that is currently the subject of challenge.
10. In the course of the proceedings on 21st February 2006 Miss Levinson appeared for the applicant, as she does today. She pointed out that Wilkie J had suggested returning before HHJ Joseph and that the possibility of conditions being canvassed would constitute a sufficient change in circumstances so as to make it appropriate for the judge to give the application further consideration. Judge Joseph then went on to say this:

"Well, when I withdrew bail I would have obviously had in mind the possibility of imposing stringent conditions if I thought that would get your client to court. But I am not at all sure that that is a change of circumstance. However, if Mr Justice Wilkie suggested that you came back before me, then I will in those circumstances entertain a bail application."

He then proceeded to do so.

11. Miss Levinson made lengthy submissions in support of the application for bail, drawing attention to all the circumstances which she felt were appropriate and relevant to the application and the matter eventually reached the stage where the judge said this:

"It is the Court's decision, you see, at the end of the day and the Court has a duty at the first appearance in the Crown Court to look at the situation and come to a decision as to whether somebody should be granted bail or remanded in custody and, if granted bail, on what conditions, and not necessarily influenced by what has gone on before or the attitude of the prosecution."

Miss Levinson very properly said, "Of course I accept that." The judge went on:

"You see, apart from his failure to comply with his bail in May of last year, he has -- and this was something that influenced me as well -- I cannot recall now on the 10th February whether I dealt with this, but certainly it influenced my decision: that on the 4th of July of last year a community order was made for a burglary, for 100 hours unpaid work, and on the 12th of July of last year he was given a conditional discharge for theft, shop lifting, a similar offence to one of those that he is now facing. And then he was alleged on the 12th of August of last year to have committed these offences, the theft from Halfords and assault occasioning actual bodily harm within a fairly short time after he had been given the community order and the conditional discharge. That of course is a serious aggravating circumstance if he is convicted of these offences. So my decision to withdraw bail was in the main because I did not believe that he would surrender bearing in mind his convictions in May last year, but secondly my fear that he would commit further offences if granted bail."

He then went on to dismiss the further application.

12. It is now well-established that this court has jurisdiction to deal with matters such as this following the abolition of what used to be a right of appeal to a High Court judge from a refusal, or revocation, of bail by a Crown Court judge. The matter has been before this court on a number of occasions to clarify the basis of this court's jurisdiction in such matters and to identify the appropriate principles.
13. For the purposes of this judgment it is sufficient to refer to the judgment of Collins J in Allwin v Snaresbrook Crown Court [2005] EWHC 742 Admin, and to quote the following passage from the judge's judgment which I adopt with gratitude and apply in this case:

"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. The 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 principles 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. On the claimant's behalf Miss Levinson submitted that this was a case where the decision fell outside the bounds of what this court should regard as reasonable and that it was therefore one which was Wednesbury unreasonable.
15. In support of that submission Miss Levinson made a number of points of which, as it seems to me, the following are the main ones. First, she submitted that the decision to revoke bail was unreasonable because it was not made after any appraisal by the judge of all the relevant facts. It is clear from the passage that I have quoted that that is so. The judge came to a very early decision that bail was to be revoked, putting it in terms that made that perfectly clear. Almost at the outset of that part of the proceedings he said (and I quote again for the sake of clarity):

"Yes, two bail offences as recently as May of this year (sic) are there not? Well, why should I give Brooks bail?"

As Miss Levinson observed, this was almost a reversal of the statutory presumption in favour of bail. The judge was making it clear at the outset that he was minded not to grant bail because of his discovery that the applicant had committed two bail offences in the fairly recent past. That was a decision which was made before any of the relevant facts, of which there were a significant number, had been canvassed and placed before the judge.

16. In my view that point is well made. By indicating right at the outset of the proceedings that he was minded not to grant bail it was clear that the judge was exhibiting a mind that was at least very nearly made up, if not entirely made up. That certainly gives the appearance of a predetermined approach to the matter which he had to consider and decide.
17. Second, Miss Levinson pointed out and criticised the absence of any discussion about possible bail conditions. The transcript of the hearing on 21st February reveals that the judge believed that he did have the possibility of stringent conditions in mind. If he did so, he did not make that evident to Mr Edwards on 10th February and gave no opportunity to Mr Edwards to develop any submissions along those lines. Had Mr Edwards had that opportunity, it may be that the judge would have been persuaded to change his provisional view about the suitability of conditions. Not to give counsel the opportunity to explore those matters seems to me to give the appearance of a closed mind and predetermined approach to the matter. Such an approach is, in my view, less than satisfactory.
18. Third, Miss Levinson submitted that this defendant had no reason to expect that bail would be revoked because he had observed his bail requirements in respect of this particular set of charges to the letter. I accept her submission that one can draw the conclusion that this applicant was mindful of the warning that had been given to him that if he failed to attend, or breached any condition of his bail, he would be liable to arrest and might be committing a separate offence for which he could be sent to prison. As it seems to me, where a defendant has been observing his conditions of bail scrupulously and has not acted in breach in any way at all, a reasoned explanation should be given to explain why bail is being withdrawn and this should only occur after a full and proper examination of all the relevant considerations.
19. A further troubling aspect of this matter is that it is clear from the second transcript, namely of the hearing on 21st February, that the judge had in mind yet another matter relating to his decision to withdraw bail, namely, the possibility that this applicant might commit further offences if granted bail. If he did have that matter in mind on 10th February, as he said he did on 21st February, then he should have made that clear to counsel representing the applicant on 10th February so that the matter could be explored and, if possible, satisfactory explanations and assurances given.
20. All in all, I have come to the conclusion that the decision-making by the learned judge on 10th February was so perfunctory and so lacking in any proper analysis of the relevant facts, and so lacking in the proper exploration of such fundamental considerations such as appropriate conditions, as to place it firmly outside the bounds of what was reasonable for the purposes of the decision-making in a bail application. In other words, I have come to the conclusion that his decision was, for those reasons, Wednesbury unreasonable and must be quashed.
21. As it seems to me, this case underlines the importance of dealing with bail applications at first instance by conducting a full and proper hearing of the application and giving considered reasons for the conclusions reached, particularly if those conclusions are adverse to the applicant. It must not be overlooked that there is a statutory entitlement to bail and judges should bear that very much in mind when giving careful reasons for any decision reached in which bail is refused.
22. I make those observations only because it is important that applications of this sort to this Court should be as infrequent as possible. However, in this particular case, I am in no doubt that this is an appropriate case for this court to intervene and so I do in the manner that I have already indicated.
23. In addition to quashing the order, I imagine the appropriate thing for me to do is direct that the matter be placed before another judge of the Crown Court with directions that bail be granted with the imposition of appropriate conditions; residence and reporting, I imagine.
24. MISS LEVINSION: I am grateful.
25. MR JUSTICE FORBES: Is there anything else that I need to say?
26. MISS LEVINSION: My Lord, there are two other very brief points. The first is, I think I need to ask for a detailed assessment of costs on taxation. That is for the purposes of Legal Aid.
27. MR JUSTICE FORBES: You may have whatever the appropriate order is.
28. MISS LEVINSION: My Lord, the second point is, Mr Brookes has written a letter to my instructing solicitors, obviously in quite a distressed state from prison, and one of the things he says in the letter is that he does not want Judge Joseph to deal with his trial.
29. MR JUSTICE FORBES: He wants what?
30. MISS LEVINSION: He is worried about Judge Joseph being the judge at his trial.
31. MR JUSTICE FORBES: That, I am afraid, Miss Levinson, although I can understand you drawing it to my attention, is not something that I can have any control of. I have merely indicated that the application for bail should be placed before another judge. I have no doubt, if you make appropriate representations to the listing office at Croydon Crown Court --
32. MISS LEVINSION: Yes.
33. MR JUSTICE FORBES: I have no doubt they will realise why you are making the representations that you do. It is not possible for me to give any directions with regard to that sort of matter. Is there anything else?
34. MISS LEVINSION: No.
35. MR JUSTICE FORBES: Thank you.