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
		7 July 2009

1. MR JUSTICE COLLINS: This is a claim seeking judicial review of a decision of HHJ Bogis sitting in the Southampton Crown Court whereby he refused bail to the claimant who is a 16-year old. The claimant was charged with a number of serious offences together with some five or six other defendants. Putting it very broadly, there was a nasty offence of violence committed against a disabled person in his home, and then there was a robbery shortly thereafter of a delivery man who was delivering take-away food. Also, apart from the food, some cash was stolen from him.
2. The claimant pleaded guilty, or indicated that he would plead guilty, to an offence which was charged against him alone, namely that he received some of the take-away food knowing or believing it to be stolen. So far as the offence against the disabled man was concerned, he accepted that he was in the house, although he believed, he said, that the group was lawfully in that house. There had been apparently some incident and they were, on one view, seeking some sort of refuge from whoever it was who was causing trouble to them. But it became thoroughly unpleasant when one of their number drew a knife, and it was at that stage that the claimant said that he left the house and thus was not involved in the offending there, albeit he clearly was in very unfortunate company.
3. He has, despite his young age, a number of previous convictions but no offence of dishonesty. Possessing an offensive weapon, using threatening behaviour, criminal damage, and also battery. He has not received any custodial sentence hitherto. The other defendants entered pleas on the first day of the trial which were acceptable to the prosecution and accordingly it was decided that the case against the claimant need not be pursued, thus he fell to be dealt with and sentenced purely upon the receiving charge. The judge remanded him, and indeed the others as I understand it, for the purpose of reports, as one would expect before deciding what the appropriate sentence would be. The Crown Court log which is before me shows that on 29 June, which is the date he was remanded in custody, the judge delivered his ruling on the question of bail and the quote is, "not prepared to grant bail, not sure will turn up or stay out of trouble". Now, the test is that contained in the Bail Act, section 4(4), applying schedule 1, and that requires the judge to have substantial grounds for believing that the defendant before him would fail to surrender, commit offences on bail, or transgress one of the other provisions in schedule 1. Those two that I have mentioned are the two obvious ones when one is concerned with a pre-sentence remand. It is apparent that the judge took a dim view of the defendants before him, including this defendant, and he mentioned I gather that he was in bad company, that he had a record, and this showed that he was progressing towards a serious sentence. I am not quoting precisely what he said, but that as I understand it was the implication of his observations.
4. Now, the first question that has to be determined is whether this court has jurisdiction on the basis that this is not a matter relating to a trial on indictment. Reliance is placed on the decision of the Divisional Court in M v Isleworth Crown Court [2005] EWHC 363 Admin That involved a refusal of bail in a case which had been transferred to the Crown Court, and it is not clear from the facts set out in the judgment whether an indictment had at that stage been preferred. Be that as it may, what Maurice Kay J said in his judgment was this:

"It is common ground and I accept that a decision as to bail at an early stage of criminal proceedings does not relate to a trial on indictment, and that expression has been interpreted in cases such as R v Manchester Crown Court ex parte [1994] 98 CAR 461 where Lord Browne Wilkinson stated that the question to be posed when considering the trial on indictment test was as follows: 'is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment, including the costs of such issue? If the answer is no, the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial. Therefore, it may well not be excluded by the section'."

5. This of course is not an early stage of the criminal proceedings, it is a very late stage because it is after conviction and before sentence, so the trial on indictment is clearly still in being. Costs in the dictum of Lord Browne Wilkinson are clearly included as part of the issue. On one view, the questions as to bail are always going to be truly collateral to the indictment, and thus it may be that the jurisdiction of this court exists.
6. In all the circumstances of this case, I am prepared to assume that there is jurisdiction, although I am bound to say I have considerable doubts as to whether in reality there is when one is dealing with bail at this late stage of a trial. Having said that, I have to consider whether the decision in question is one which could be said to be unreasonable in the Wednesbury sense, because that is the test. Was it within the bounds of a reasonable decision?
7. If the judge had applied the correct test, I am satisfied that this was a situation where he could have refused bail. I am bound to say that, having regard to the plea that was accepted, and in regard to the background which was a compliance with bail obligations, a plea having been entered I understand back in February of this year, no suggestion that this defendant had in any way shown an inclination either to fail to attend or to continue to associate with and so commit offences with the undesirables with whom he was associating in the commission of the offences. In fact, the offences were committed back in August of last year and the point is made that he has kept out of any trouble for a considerable period of time as a result. However, this was a situation where the judge was entitled to take the view that despite his protestations to the contrary, he was indeed well aware that the food had been taken by a means of a robbery, and that of course would make the circumstances of the receiving it that much more serious. Undoubtedly, it was perfectly proper for the judge to have in mind the possibility of a custodial sentence in the circumstances of this case.
8. Thus, as I said, I would not have allowed this claim on the basis that the decision itself was an unreasonable one. I have emphasised and other judges have emphasised that this jurisdiction is one that will only very sparingly be exercised, and only in the clearest of cases because the Crown Court Judge is the judge in whom parliament has entrusted the decision in relation to bail, and indeed the judge has the knowledge of the circumstances and the experience in addition. However, as I have already recorded, the test that he applied, and Mr Richards who appears on behalf of the CPS recognises, that the test was a wrong one. He put it the wrong way round. It is not a question of him not being sure that the defendant would turn up or stay out of trouble, but he was only entitled to refuse bail if there were substantial grounds for believing that he would breach, he would fail to turn up or would commit further offences. As I have said, I am not prepared to find that he could not, on that basis, have refused bail, although, I am bound to say that on the material before me it is a decision which perhaps is a somewhat surprising one. But, having regard to the wrong approach, it seems to me that it is appropriate to quash the decision which the learned judge reached and to send this back for him to reach a fresh decision, having heard counsel, on the proper basis, and in the course of that no doubt counsel will be able to refer him to the effect that custody is apparently having upon him, judging from a report by those who have to look after him where he is in custody.
9. Accordingly, as I say, I will allow this application but remit the matter for reconsideration on the basis that I have made clear.
10. MR REID: My Lord, thank you. I think three other matters. I am clearly concerned for the claimant that the matter is put before the learned Crown Court judge as soon as possible.
11. MR JUSTICE COLLINS: It should be heard, or arrangements should be made for it to be heard as soon as possible, ideally tomorrow.
12. MR REID: I am grateful, and whether it would assist if there were a copy of your Lordship's --
13. MR JUSTICE COLLINS: Well you will not get that by tomorrow.
14. MR REID: No.
15. MR JUSTICE COLLINS: You have both made, I imagine, good notes, and you can, I am sure you can agree them and put them before the judge. I think it is more important that the matter is dealt with speedily than that you wait for a transcript. I mean there will be a transcript.
16. MR REID: I am grateful. The second matter is a question of costs.
17. MR JUSTICE COLLINS: Are you legally aided?
18. MR REID: Yes. Emergency civil legal aid.
19. MR JUSTICE COLLINS: Yes. Well, as you know it is not normal to grant the costs against the Crown in this situation, so I think I should say no more than that. But you can have your necessary legal aid.
20. MR REID: I think it has to be a detailed assessment.
21. MR JUSTICE COLLINS: A detailed assessment.
22. MR REID: I am grateful. And lastly, a question of reporting restrictions given the claimant's age.
23. MR JUSTICE COLLINS: That is a matter for the judge. Was he anonymised at the Crown Court?
24. MR REID: My Lord, it is right to say there is no record on my brief of a section 33 order having been made, but it is out of an abundance of caution that I do it here.
25. MR JUSTICE COLLINS: Is there any particular reason why he should be anonymised?
26. MR REID: Only his age. He is a minor, he has a modest record, and clearly he is linked but not involved with two very serious matters. In my submission it would be unfair to him.
27. MR JUSTICE COLLINS: Well what -- do you have any observations on this?
28. MR RICHARDS: My Lord, I do not. The court list refers to him as F.
29. MR JUSTICE COLLINS: I know.
30. MR RICHARDS: That would --
31. MR JUSTICE COLLINS: What I am prepared to do then is to direct that he is referred to still as F, but it will be a matter for the Crown Court to decide whether he is or is not anonymised, at any particular stage, ie when he is sentenced. Is that all right?
32. MR RICHARDS: My Lord, yes. It would not be normal for him to be referred to as F in the context of this case within the Crown Court.
33. MR JUSTICE COLLINS: No, that is what I am getting at. The result of that being that if the Crown Court has not made any anonymity order or decides that it is not appropriate to do so, then any order made by this court will cease. Ie I am only making an anonymity order until the matter is considered by the Crown Court. Not that I suspect anyone is interested in the, perhaps they are, but I would not have thought so.
34. MR RICHARDS: My Lord.
35. MR JUSTICE COLLINS: So we will put it like that. Any anonymity order so far as these proceedings are concerned will depend upon whether the Crown Court does or does not make it.
(The court adjourned at 11.20am and sat again at 11.23am)
37. MR REID: My Lord, yes. My question was to do with the defendant's current status.
38. MR JUSTICE COLLINS: Well that is the point, that is why I am saying I do not quash the order, I remit this to the Crown Court and direct them to reconsider the question of bail on the correct basis. It is effectively a mandatory order to reconsider.
39. MR REID: My Lord, yes. My concern is that the defendant remains in custody as a result of an order which in effect --
40. MR JUSTICE COLLINS: No, because I have not said that he would not be possible to remand him in custody if the judge took the view on the right basis and gave proper reasons for so doing, and once that is the position it would not be appropriate that he is released overnight, as it were, because that would be cat and mouse and not at all satisfactory, and that is why it occurred to me that I should not quash the order, what as I say I should do is to direct that the Crown Court reconsider the matter on the correct basis, and as soon as possible, ideally tomorrow.
41. MR REID: My Lord, I am grateful. We may try and make efforts to see if it can be listed this afternoon.
42. MR JUSTICE COLLINS: If that is possible yes, by all means, but that may be difficult perhaps I do not know.
43. MR REID: I am very grateful.