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
		27th March 2007

1. LORD JUSTICE LAWS: This is an application for the issue of a writ of habeas corpus. It is made in the following circumstances. The claimant is charged with two offences of witness intimidation. He was brought before the Greenwich Magistrates Court on 27th February 2007. He indicated a not guilty plea. He was remanded for committal to the Crown Court on 27th March 2007. At the hearing on 27th February, bail was applied for but refused. He was remanded in custody to 8th March 2007. On that occasion, he was returned to court. He was granted bail subject to conditions by the Magistrates. The prosecution appealed to the Crown Court. The appeal was heard the next day at the Woolwich Crown Court. The appeal was successful. The Recorder in the Crown Court refused bail and the claimant was again remanded in custody.
2. The Recorder did not set a return date upon which the claimant should be produced again before the Magistrates Court. It is therefore said that the claimant, remaining as he did within the jurisdiction of the Magistrates Court, was unlawfully detained because he should not have been remanded in custody for more than eight days unless the provisions of section 128A(2) of the Magistrates Court Act 1980 were invoked and applied and they were not.
3. It is convenient just to refer to the relevant statutory provisions at this stage. Section 128(6) provides that a person shall not be remanded in custody for a period of more than eight clear days unless either section 128A or section 129 of the same Act applies. 128A(2) provides as follows:

"A magistrates court may remand the accused in custody for a period exceeding eight clear days if -

(a) it has previously remanded him in custody for the same offence; and

(b) he is before the court,

but only if, after affording the parties an opportunity to make representations, it has set a date on which it expects that it will be possible for the next stage in the proceedings, other than a hearing relating to a further remand in custody or on bail, to take place, and only -

(i) for a period ending not later than that date; or

(ii) for a period of 28 clear days,

whichever is the less."

4. The claimant was not produced before the Magistrates Court within eight days of his previous appearance there on 8th March or indeed within eight days of 9th March, when bail was refused so, as I said, it has been contended that he has been held unlawfully. In Bone (Divisional Court, 8th November 1994) somewhat similar circumstances arose. Rose LJ said, transcript page 4:

"For my part, I accept that the Crown Court Judge is not subject to the provisions of sections 128 and 129 of the Magistrates' Courts Act. However, the detention of the Applicant, and the lawfulness or otherwise of that detention has to be gauged, as it seems to me, by reference to the provisions of the Magistrates' Court Act because in this case the Applicant was subject to the jurisdiction of the Magistrates."

Later (page 6) the learned Lord Justice says this:

"For my part, I would have thought that the most convenient and sensible course would be, if this difficulty arises in the future, for a Crown Court to be invited by the prosecution to stipulate a date which does in fact comply with the provisions of the Magistrates' Court Act, not because the Crown Court Judge is himself subject to the jurisdiction of that Act, but because of the lacuna in the statute which leads to the problems which are otherwise encountered."

5. In the later case of Szakal [2000] 1 Cr.App.R 248, BAILII: [1999] EWHC Admin 702 , Simon Brown LJ said this:

"Bone decided that where the prosecution successfully appeal a grant of bail by magistrates, the Crown Court judge must stipulate a date which is in accordance with the powers of the justices under sections 128, 128A and 129 of the Magistrates' Courts Act 1980, a period of remand in custody which does not exceed eight days from when the defendant last appeared before the Magistrates -- or possibly, this question being for future consideration, 28 days if the provisions of section 128A are followed by a Crown Court judge."

It does not seem to have been directly determined in either of those cases whether the provisions of section 128A must actually be deployed in the Crown Court if the result of the Crown Court's order is that the defendant in question is to be remanded in custody for more than eight days after his last appearance before the Magistrates Court.

6. Mr Foy for the prosecution contends that the claimant was and is lawfully detained in custody because the terms of section 128A(2) were complied with on 27th February 2007. It will be recalled that that was the date when he was remanded for committal to 27th March 2007. However, it is plain, and Mr Foy came to accept this, that he was not then remanded under the terms of section 128A(2) at all; he was remanded for the eight day period stipulated in section 128(6). Had it been the intention of the court to remand until 27th March or some other day beyond eight days, under the terms of section 128A they would of course have had to comply with that section and provide the appropriate opportunity to make representations and so forth. No doubt, as Mr Foy submits, the claimant's representatives could have made whatever representations they thought fit on 27th February but they were not then facing the possibility of a remand for more than eight days and there would have been no very apparent purpose in making representations as to whether the claimant should be remanded under section 128A or not. They knew that the case would come back in eight days time when there would be an opportunity to apply for bail or make other representations. That is what happened. As I have said, he was in fact released on bail on 8th March.
7. It seems to me that had the claimant been remanded again in custody on 8th March, and had that remand been to 27th March or some other date more than eight days in the future, section 128A(2) would distinctly have had to be deployed on that occasion; but it was not. The grant of bail and the successful prosecutor's appeal supervened. However, in the circumstances it seems to me plain that the claimant can have enjoyed no lesser rights in law, given that factual scenario, than if he had been remanded in custody on 8th March. Accordingly, if he was to be remanded on 9th March for a period more than eight days into the future, it seems to me that the Crown Court ought to have applied the provisions of section 128A(2). They should have considered whether he was to be remanded for more than eight days or not. If it was considered that he should be, then a distinct opportunity consonant with the provisions of section 128A(2) to make representations about that issue should have been granted.
8. I acknowledge, as with respect did this court both in Bone and Szakal, that section 128 and 128A do not directly apply to or bind the Crown Court. Clearly, however, the Crown Court must act in this area consonantly with the rights which the Magistrates Court Act confers on defendants. On the facts that have arisen here, that would have required them to apply section 128A(2) as I have said.
9. In those circumstances, in my judgment the case for the issue of a writ of habeas corpus is made out and I would order it to go.
10. MR JUSTICE BEATSON: I agree. In view of the fact that this is the third case, albeit over a considerable period of time, in which a problem of this sort has arisen, consideration must be given to those in the Crown Court who hear appeals from the Magistrates in respect of bail to the application of section 128A. The position could be cured, and no doubt would have been cured, had the learned Recorder been allied to it but it obviously was not.
11. MR WALSH: My Lords, I am instructed to ask for costs out of central funds.
12. LORD JUSTICE LAWS: That is under the Prosecution of Offences Act, is it?
13. MR WALSH: I think so.
14. LORD JUSTICE LAWS: Well, that is not a very good answer, Mr Walsh, you are supposed to know.
15. MR WALSH: No, my Lord, I can say it is. I believe we are under a duty not to deprive the legal aid fund of money.
16. LORD JUSTICE LAWS: You want your costs our of central funds? Mr Foy, there is power to do that in a case like this, is there not?
17. MR FOY: My Lord, I noticed in Bone precisely that order was made subject to taxation.
18. LORD JUSTICE LAWS: Yes.
19. MR WALSH: Thank you, my Lord.
20. LORD JUSTICE LAWS: Thank you, we are grateful to counsel.