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 WC2A 2LL
		11th May 2009

1. MR JUSTICE HICKINBOTTOM: This is an application for judicial review of a decision of District Judge Wallis sitting at Greenwich Magistrates' Court on 28 March 2008, who, having found that the applicant, Royston Thomas, had breached his bail conditions, remanded him in custody. It is brought with the permission of Charles J.
2. The facts upon which the application is brought are as follows. In January 2008 the applicant was arrested for assault occasioning actual bodily harm, the allegation being that he, with a co-accused, assaulted a neighbour. There seems to have been a considerable history to this neighbour dispute with mutual assertions that others had at various times been the aggressors.
3. The applicant's first appearance at Greenwich Magistrates' Court was on 18 January 2008, when he was remanded in custody. A bail application failed on his second appearance on 25 January, but a further application to Blackfriars Crown Court on 29 January was successful. Bail was granted on various conditions, including a condition as to residence and a condition not to enter Hazel Grove Estate or go within one mile of it. On 16 February the Magistrates' Court committed the applicant for trial to the Crown Court. Bail was continued.
4. On 13 March the applicant was brought before the Magistrates' Court for a breach of bail, which was found proved, but he was readmitted to bail on the same terms. On 28 March he was brought before District Judge Wallis at the Greenwich Magistrates' Cour for an alleged second breach. The District Judge found the breach proved and remanded the applicant into custody. That, of course, is the challenged decision to which I will return.
5. However, briefly to complete the history, on 1 April at the Crown Court the applicant pleaded not guilty to the assault. On 4 April at the Crown Court His Honour Judge Pillay said he would grant bail if an address out of London could be found. Bail was eventually granted on 8 April, conditional upon the applicant residing at an address in Wolverhampton and not to go within the circle of the M25, save for court appearances and meetings with his legal team. Although not relevant to this application, I understand that the applicant was eventually found not guilty of this offence.
6. However, although those events were over a year ago, it is submitted on the applicant's behalf that this application is still not empty, because he has on his record a breach of bail conditions which he wishes to have removed because of its potentially prejudicial effect in the future. No doubt that is the reason Charles J granted permission.
7. Returning to the 28 March 2008 hearing, the prosecution relied upon a statement of PC Moheeputh which said that he saw the applicant the previous day at 3.50pm in a stationary car outside the named estate but within the defined exclusion zone in the bail condition. The statement said that the police officer drove past the car and the applicant was in the front seat wearing sunglasses and a hooded top. The officer saw him for about five seconds from five feet away with an unobstructed view. The officer later stopped the car, driven by a Mr Mark Goulborne and there was no passenger, but, the officer said, the passenger seat was still warm. PC Moheeputh was not present at the hearing to give oral evidence or be cross-examined.
8. At the hearing, the applicant, his brother and Mr Goulborne gave evidence, consistent as between itself that the passenger in the car when observed by the police officer was the applicant's brother, who bore a resemblance to him. The brother left the car when spotted by the police because he did not want to be stopped by them for his own reasons. The District Judge found, on the balance of probabilities, that it was the applicant in the car, he was in breach of his bail conditions, and he revoked bail remanding the applicant in custody.
9. The application for judicial review is made on three substantive grounds. First, the judge erred in allowing the prosecution to prove their case by adducing a written hearsay statement preventing a proper evaluation of the quality of that evidence. The error, it is submitted, was compounded by the fact that that evidence related to identification. Second, he erred in refusing to allow the defence advocate to make representations about the evidence to highlight the inherent problems of identification evidence generally, and in particular in the circumstances of this case. Third, he erred in failing to invite representations following his factual finding of breach as to whether it was in any event reasonable to refuse or readmit bail.
10. I can usefully deal with the first and second grounds together. The bail jurisdiction being exercised by the District Judge was under section 7(5) of the Bail Act 2003 which provides:

"A justice of the peace before whom a person is brought under subsection (4) above may, subject to subsection (6) below, if of the opinion that that person --

(a)is not likely to surrender to custody, or

(b)has broken or is likely to break any condition of his bail

remand him in custody or commit him to custody, as the case may require, or alternatively, grant him bail subject to the same or to different conditions, but if not of that opinion shall grant him bail subject to the same conditions (if any) as were originally imposed."

Section 7(5) requires the court to adopt a two stage process, succinctly, and in my respectful view helpfully and accurately, set out by Gage J in R (on the application of Paul Vickers) v West London Magistrates' Court [2003] EWHC 1809 (Admin) at [16], where he says:

"There is no dispute between the parties that section 7(5), in effect, involves a two-stage operation to be carried out by the justices. First a decision must be made as to whether or not there has been a breach of a condition. If there has been no breach of a condition then the bailed person is entitled to be admitted to bail on precisely the same conditions -- in other words, bail continues. If the justices are of the opinion that there has been a breach of the condition, then they must go on to consider whether or not the bailed person can be admitted again to bail or must be remanded in custody -- that is the second stage."

11. I shall return to the second stage when I consider the third ground of the application. But in respect of the first stage, Mr Field today submitted that the District Judge erred in relying upon the hearsay evidence of the police officer as he did.
12. I do not find that submission compelling. It is well established law that the bail jurisdiction is not the equivalent of a criminal charge and that strict evidential rules need not be applied. In particular, oral evidence is not required. Written evidence may be used. In considering whether he is "of the opinion that that person… has broken… any condition of bail", a justice is entitled to rely upon written hearsay material, so long as the material is properly evaluated. That evaluation is important, but it quintessentially a matter for the first instance court (in this case, the District Judge). The proper approach was set out in the judgment of Latham LJ in R (on the application of Director of Public Prosecutions) v Havering Magistrates' Court CO/3972/2000 (15 December 2000) at paragraph 42:

"What undoubtedly is necessary, is that the justice, when forming his opinion, takes proper account of the quality of the material upon which he is asked to adjudicate. This material is likely to range from mere assertion at the one end of the spectrum which is unlikely may not have any probative effect, to documentary proof at the other end of the spectrum. The procedural task of the justice is to ensure that the defendant has a full and fair opportunity to comment on, and answer that material. If that material includes evidence from a witness, who gives oral testimony, clearly the defendant must be given an opportunity to cross-examine. Likewise, if he wishes to give oral evidence he should be entitled to. The ultimate obligation of the justice is to evaluate that material in the light of the serious potential consequences to the defendant, having regard to the matters to which I have referred, and the particular nature of the material, that is to say taking into account, if hearsay is relied upon by either side, the fact that it is hearsay and has not been the subject of cross-examination, and form an honest and rational opinion. If his opinion is that the defendant has broken a condition of his bail, he must then go on to consider whether or not, in view of that opinion, and in all the circumstances of the case, he should commit the defendant in custody or grant bail on the same or other conditions, applying the principles set out in section 3(6) and 4 of, and Schedule 1 Part I paragraph 2 (in Part II paragraph 2) to the Act."

That approach makes clear that a court in considering a bail application under section 7(5) may consider any material, the relevant and important factor being the weight attached to it. The learned judge said, understandably, that a mere assertion, if admitted, would be very unlikely to have any probative effect. But, as I have indicated, weight of evidence is a matter for the first instance court. I do not consider that there can be any suggestion that the Judge in this case acted unlawfully in the weight he attached to any particular piece of evidence (see paragraph 15 below).

13. Mr Field has submitted before me today that the Havering decision has effectively been overtaken by a number of events. His written submissions focus upon the hearsay rules brought in by the Criminal Justice Act 2003. That Act, of course, brought in considerable changes to the rules in which hearsay evidence is allowed in criminal proceedings. But it does not follow that that Act imposed stricter uses of hearsay evidence than had appertained before in relation to bail applications. It did nothing to change the nature of bail proceedings as not being criminal proceedings within the ambit of Article 6(3) of the European Convention on Human Rights, nor, in my judgment, could it arguably have changed the well established law on the nature of evidence upon which a decision on bail can be made, nor the approach to that evidence as set out by Latham LJ in the Havering case.
14. Mr Field further relied upon, first, the decision of the European Court of Human Rights in Al-Khawaja and Taheery v United Kingdom (Application Nos 26766/05 and 22228/06) (20 January 2009). However, the comments made by the European Court of Human Rights in that case were clearly and expressly in the context of criminal proceedings within the meaning of that phrase under Article 6(3). They have no particular application to the matters before me.
15. Mr Field finally relied upon the case of R (on the application of Cleary) v Highbury Corner Magistrates' Court [2006] EWHC 1869 (Admin), a case concerning a closure notice under the Anti-Social Behaviour Act 2003. In that case the Divisional Court held that the provisions of the Civil Evidence Act 1995 should apply to hearsay evidence in relation to closure proceedings under that particular Act. However, the 1995 Act pre-dates the Havering decision and, in any event, Latham LJ made clear that there should be no technical evidential rules in relation to evidence adduced at a bail hearing, for the reasons he set out in paragraph 42 of his judgment, which I have quoted.
16. Given that the hearing today has been a hearing at which Mr Field has represented the claimant, but the other side of his hearsay argument has not been put by any respondent, I would have been reluctant, in any event, to have disturbed jurisprudence going back to the year 2000, which is not only well established but, as I understand it, used every day on bail applications up and down the country. However, for the reasons I have given, I am firmly of the view that nothing after the Havering decision has affected the approach set out in that case by this court. I do not consider that the District Judge erred in allowing the prosecution to rely upon the statement of the relevant police officer, nor in applying the civil burden of proof, nor in coming to the conclusion that it was the applicant in the car, and that consequently the bail condition had been breached. The issue, I appreciate, was one of identification and I equally appreciate the inherent dangers in relying upon identification evidence in circumstances where the view of the identifier was relatively brief and, in terms of this case, from a car looking at a passenger in another car. Those dangers are well known. They would have been well known to the District Judge, and I am satisfied that he would have taken those matters properly into account in making his factual finding. I do not consider, having looked at the evidence of the police officer's statement, that it was such that, having heard from the three witnesses called by the applicant, it would or should have been withdrawn from a jury had this been a jury trial. Nor do I consider that the finding of the District Judge was, in all of the circumstances, a finding that no reasonable judge could have come to on the evidence before him. For those reasons, I do not find that the judge's finding can be impugned by this court, nor do I find that either of grounds 1 and 2 is made good.
17. Ground 3 caused me some hesitation. It was not the focus of the applicant's submissions which related to the hearsay issues. Looking at the papers, the judge moved from his factual finding and his consequent finding that there was a breach of the bail condition quickly to revoking bail and remanding the applicant in custody. In his statement of 20 May 2008, the District Judge indicates that he was aware of the first breach, which he must have been.
18. Having considered this matter carefully, and also noting that the real purpose of these proceedings was to expunge the finding of breach of bail conditions, I am satisfied that the District Judge did not act unlawfully in moving, as he did, from his finding of breach to his conclusion that bail should be withdrawn and the applicant should be remanded in custody. That separate second stage is, in my view, sufficiently evident from the papers I have seen. The procedure for these applications is relatively summary, and a procedure with which the Judge would be very well acquainted with, dealing with it (I suspect) more or less every day of his professional life. There is a presumption that he acted lawfully, and there is nothing to suggest that he did not go through the relevant mental processes of the second stage that he was required to go through by the section 7(5) procedure.
19. For those reasons, this application is refused.
20. MR FIELD: My Lord, I do not know if I can ventilate the matter as to whether my Lord felt that this was a criminal cause or matter, because there is a distinction between a criminal cause or matter in this court and, perhaps, Article 6 or whether this is a civil matter.
21. MR JUSTICE HICKINBOTTOM: For the purposes of Article 6(3)?
22. MR FIELD: It is not criminal, but for the purposes of proceedings if this is a criminal caus or matter then, should the claimant wish to consider his position which, perhaps on an individual level is unlikely --
23. MR JUSTICE HICKINBOTTOM: What are the provisions for a criminal cause or matter in this court?
24. MR FIELD: If this is a --
25. MR JUSTICE HICKINBOTTOM: I appreciate the consequences, but what is the identifying characteristic?
26. MR FIELD: It is not clear. I have to say that it is something I have at the back of my mind and I did not come well prepared for this particular development of an argument as to consequences. It would depend on this. If my Lord, for the moment, felt that the underlying reason for my Lord's decision is the interference with settled jurisprudence but if my Lord felt that, certainly in Cleary, now there are stricter hearsay rules for somebody who stand only stands to have consequences on their property as opposed to lose their liberty, I propose this could be of such importance that my Lord might consider whether or not an appeal would be appropriate. I submit that my Lord has applied the existing law, but these proceedings have identified something of a gap between jurisprudence and the way the court approached the case of Cleary. My Lord might say, wherever it goes, my Lord would have no objection to either certifying a point of law for the House of Lords if it is a criminal matter, or give leave to appeal if it is a civil matter to the civil Court of Appeal.
27. MR JUSTICE HICKINBOTTOM: Can I deal with that in this way, and I will hear submissions if you want to make them. Firstly, can I deal with your application for, effectively, leave to appeal. I would not give leave to appeal. Not only am I applying well settled jurisprudence but I also consider that jurisprudence is correct -- and that is why, perhaps, it is well settled. I do not think it would be appropriate for this case to go to the Court of Appeal if that is the right route, because I do not think you would stand a real prospect of success.
28. In terms of whether this is a criminal or a civil matter, it seems to me that it is probably a civil matter for the Court of Appeal. However, what I will do is this. I will refuse leave to appeal. Applications to this court in relation to bail happen very frequently. The Registrar will know whether this is a civil or a criminal matter, so I will refuse permission to appeal but without any prejudice to any application you want to make as to its proper designation. Is that adequate?
29. MR FIELD: Yes, my Lord. You could probably go one stage further. If it is a criminal cause or matter and the only remedy, if there was an error in my Lord's judgment, was to the House of Lords, then my Lord would have to certify a point of law of general public importance and my Lord could, if my Lord felt inclined, do an either or. If it is that --
30. MR JUSTICE HICKINBOTTOM: If that is the correct route, I would not certify a point of law of public importance.
31. MR FIELD: The only other issue is costs. The claimant was publicly funded and I ask for a detailed assessment.
32. MR JUSTICE HICKINBOTTOM: You are entitled to a detailed assessment on the commission costs.
33. MR FIELD: Thank you.
34. MR JUSTICE HICKINBOTTOM: Is that everything else, Mr Field? Can I thank you for your submissions which were interesting and helpful.