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
		8 July 2010

1. MR JUSTICE WILKIE: This is a claim by B for judicial review of a decision of the Brent Youth Court, dated 3 June 2010, refusing to consider a substantive bail application made on his behalf. Leave was given by this court on Monday, 6 July.
2. B is currently charged with attempted burglary and going equipped to steal, the alleged offences being committed on 28 April 2010. He was arrested on that day shortly after the events said to give rise to the commission by him, in the company of others, of those offences. His first appearance before the Brent Youth Court was on 29 April. He was then remanded into custody. The bases of his remand in custody throughout have been that there is a substantial risk that he would commit further offences if granted bail and/or would interfere with witnesses. Amongst the factors leading to that assessment and the objection to bail was that when he allegedly committed these offences he was already on bail for a matter of aggravated burglary of which he has since been found guilty.
3. On 29 April the date for trial was fixed to take place on 26 July. Accordingly from the outset the period of time for which he would be remanded in custody if he was never granted bail was known and calculable.

A bail application was made before the Youth Court on 29 April which was unsuccessful. On 6 May when he appeared again a further full bail application was made which was again unsuccessful. On that occasion, according to the then legal adviser's notes, one of the conditions of bail which was offered was an exclusion requirement from St John's Road, NW10, being the road within which the alleged offence was committed. I am told by Mr Hulme, who appears for the Crown as the interested party, that one of the conditions of his bail for the aggravated burglary was an exclusion condition from Willesden High Road, NW10, that the claimant had on an occasion failed to comply with that exclusion condition, had been returned to the Youth Court and had been bailed again. Although there is no direct evidence, I am prepared to infer that that fact must have been presented to the court on 6 May as being a factor counting against the granting of bail notwithstanding the offer of an exclusion area as a condition. On both earlier occasions it appears that another condition which was put forward was a condition of residence at his mother's address at Crown Hill Road, London, NW10.

4. There was then a bail application before Harrow Crown Court on 26 May. The conditions which were then on offer included the offer of a surety by the claimant's mother, a condition of residence at his grandmother's address in an address in Wembley which, though being in a different borough, is not too distant from the NW10 area, as well as other conditions. Once again, bail was opposed and was refused.
5. On 3 June the claimant again appeared before the Brent Youth Court and sought to make yet another bail application. On this occasion the package of conditions before the court was somewhat different, though how different may be of some significance. There was on offer an exclusion zone comprising the whole of the NW10 postal district. In addition, there was an offer of condition of residence at an address of a more distant relative located in east London, E9, an address an hour, an hour-and-a-half away from the NW10 address. The relative was his mother's cousin. The Youth Court declined to consider that bail application. The note of the court clerk - handwritten, and obviously not intended to be a full transcript - appears to record the reasoning of the Bench. It reads as follows:

"Decision

Exceptional bail application. We do not find that there is a change of circumstances. There have been two bail apps at the Magistrates' Court and one at the Crown Court. The trial date was fixed on 29 April and there was a bail application subsequently to this date. This is not new information. We also think that the east London address does not amount to a change of circumstances. The defence had since 29 April to offer addresses outside the area and, in any event, conditions of exclusion from the area would have been considered previously."

6. For the sake of completeness, I should record that amongst the arguments used in support of there being a case for a substantive hearing were the facts that time had passed such that if he were not granted bail until the date of his trial he would effectively be in custody for a term potentially as long as or longer than any term which he might expect to receive as a sentence if he were convicted of the offences with which he was then charged.
7. Secondly there was sought to be put forward an argument that the prosecution case, as revealed by the witness statements which had been provided from an early stage, did not disclose a strong case against him because, as a matter of law, what was there described was strongly arguably not an offence comprising an attempt but merely preparatory action falling short of an attempt.
8. The attack therefore is on the conclusion of the magistrates not to entertain a full bail application. The power of the magistrates to decline to do so is to be found in Part II A of the Schedule to the Bail Act 1976. Paragraph 1 provides:

"1 If the court decides not to grant the defendant bail, it is the court's duty to consider, at each subsequent hearing while the defendant is a person to whom section 4 above applies and remains in custody, whether he ought to be granted bail.

2 At the first hearing after that at which the court decided not to grant the defendant bail he may support an application for bail with any argument as to fact or law that he desires (whether or not he has advanced that argument previously).

3 At subsequent hearings the court need not hear arguments as to fact or law which it has heard previously."

9. The effect of this is that the court is obliged to entertain two bail applications regardless of whether the arguments put forward in the second are arguments which have been advanced previously. But if those arguments are sought to be put forward a third time the court is not obliged to entertain them, though it may do so. But this only applies to the extent that arguments put forward as to fact or law are arguments which the court has heard previously. In shorthand, this is - almost invariably - referred to as the "change of circumstance" condition. That phrase does not accurately reflect the statutory provisions although it is right to say that in Section 5, which provides supplementary provisions about the decisions on bail, there is a series of detailed provisions concerning the issuing of paperwork and, in particular, in paragraphs 6A and 6B, the phrases "change of circumstance or new considerations" are to be found.
10. In addition, Section 44 of the Children and Young Persons Act 1933 provides:

"(1) Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person ..... "

11. The provisions of Schedule 2A were, it would appear, designed to give statutory expression to what had been said by the Court of Appeal in Nottingham Justices ex p Davies [1981] 1 QB 38 and, in particular, the passage starting at page 44 F which reads as follows (Lord Justice Donaldson):

"The court considering afresh the question of bail is both entitled and bound to take account not only of the change in circumstances which has occurred since the last occasion but also all circumstances which, although they then existed, were not brought to the attention of the court. To do so is not to impugn the previous decision of the court and is necessary in justice to the accused. The question is a little wider than 'Has there been a change?', it is 'Are there new considerations which were not before the court when the accused was last remanded in custody?'"

12. The claimant says that the Bench in this case erred in law in a number of respects. First, it is said that it was irrational in failing to recognise that the offer of a condition of residence on the other side of London constituted an argument as to fact which it had not heard previously. Second, that it erred in law or was irrational in failing to conclude that the offer of an exclusion zone for the entirety of the NW10 area constituted an argument as to fact which it had not heard previously so that in both cases they were obliged to entertain a new bail application. Third, it is said that the Bench erred in law in failing at all to consider the welfare of the claimant being a child or young person under Section 44.
13. It is pointed out that Part II A of the Schedule, paragraph 3, does not prohibit the Bench from giving full consideration to an argument that it had previously heard. It merely says that it need not hear that argument. Where, however, it is under a specific obligation to have regard to the welfare of the child before it, it is said to be an error of law for it to fail to consider that, even if it were correct in concluding that the argument put forward was one which it had heard on an earlier occasion. It is bound to ask "shall we hear it again given that we are a Youth Court dealing with a child or a young person?"
14. Fourth, it is said that the effluxion of time constituted an argument of fact which it had not heard previously. Fifth, that considerations of the strength of the case against the claimant, based on the argument of law to which I have already adverted, was an argument as to fact or law which it had not heard previously.
15. It seems to me that the arguments in respect of the exclusion zone and the effluxion of time were arguments which could properly be said to be arguments of fact which had already been canvassed before the Bench. The exclusion zone was not significantly different from, or larger than, the exclusion zone which had previously been considered. The timetable had been fixed at the earliest stage and therefore its potential maximum duration was a fact which had already been canvassed before it.
16. In my judgment, however, the Bench did fall into error in failing to recognise that the offer of an address in a completely different part of London, as potentially meeting the objections to bail, did constitute an argument as to fact which it had not heard previously, given that the previous addresses suggested were within the territory within which the claimant moved and operated and therefore, within which, the concern about his future criminal activities had particular resonance. Furthermore, the reasoning put forward by the Bench was plainly erroneous. The mere fact that the address could have possibly been put forward before but had not been is not an argument for concluding that there was no statutory obligation to consider it. As Lord Justice Donaldson said, the question is a little wider than "Has there been a change?", it is "Are there any new considerations which were not before the court when the accused was last remanded in custody?"
17. Further, it does seem to me that an argument that the strength of the case against him may be significantly weaker than a first reading of the witness statements might suggest is capable of being an argument of law which has not been heard previously. Finally, even if the Bench had been entitled to form the view that each and every argument as to fact or law was an argument which it had heard previously, it manifestly failed to go on to consider whether, notwithstanding that, it should nonetheless consider substantively a bail application, given the provisions of Section 44, having regard to the welfare of a child or young person.
18. None of this is, of course, to express any view as to the strength or otherwise of the substance of the bail application or to second guess what the Bench might or ought to have concluded as far as that is concerned, because what is complained of is that it ruled out consideration of the substance of the bail application. In my judgment, in so doing, they erred in law in the ways to which I have referred. Accordingly this application for judicial review must succeed. The minimum consequence therefore is that the decision of the Brent Youth Court of 3 June must be quashed.
19. Mr Hulme and Mr Jesurum, what further order should I make or do you invite me to make?
20. MR JESURUM: There is perhaps one further consideration that would be relevant to your Lordship's determination, and that is this. My understanding - although I am not instructed in that matter - is that a trial of the first allegation, that being the aggravated burglary, concluded with a finding of guilt. The district judge invited preparation of a report by the youth offending team. My understanding is that the youth offending team were asked to look at a fostering placement or forms of supervision, though the most likely outcome would be nevertheless detention. The district judge then granted technical bail referring to these pending proceedings. Clearly the decision as to disposal is capable of having an impact on the viability of any proposed course that the youth offending team may wish to put before the Bench.
21. MR JUSTICE WILKIE: When was the conviction?
22. MR HULME: 29 June.
23. MR JUSTICE WILKIE: A few days ago.
24. MR JESURUM: Yes.
25. MR JUSTICE WILKIE: Presumably, the report was to be prepared for 26 July.
26. MR HULME: 19 July.
27. MR JUSTICE WILKIE: Before the date of trial.
28. MR HULME: Yes.
29. MR JESURUM: I am not instructed in that matter but clearly I would advise those who instruct me, who do represent him in that matter, perhaps to invite the sentencing disposal in the first matter to be postponed until the outcome of the second is known. In my submission, if you were prepared to entertain a bail application in the form of an application to a court reconstituting itself as a Youth Court that may facilitate the task that the youth offending team must undertake. To that extent it may perhaps be of some assistance. It is of course open to you to remit the matter and leave the Brent court to deal with it.
30. MR JUSTICE WILKIE: Does the Brent Youth Court sit daily?
31. MR HULME: I am told by an officer it sits daily.
32. MR JUSTICE WILKIE: Plainly since it had before it an application for bail which it refused to hear, the logic of me quashing that decision is that it must hear it if I remit it without you having to make a further application. You have already made one. I am not sure whether you need a mandatory order that they do.
33. MR JESURUM: For the avoidance of doubt, it may perhaps be best to reinforce the quashing order with a mandatory order requiring the court to entertain - - - - -
34. MR JUSTICE WILKIE: I am a little uncomfortable about embarking on the exercise of a jurisdiction that is completely alien to me in quite complicated factual circumstances where we have the aggravated burglary and the sentencing for that, particularly where you are not actually instructed on that. What I am more concerned about is to ensure that your bail application is given substantive consideration at the earliest possible moment, and that might be tomorrow morning or it may be Monday. Can I rise? Unless Mr Hulme is going to ask me to deal with it today.
35. MR HULME: I was not going to. I was going to say it was a matter for you that it might be more appropriately dealt with at the lower court.
36. MR JUSTICE WILKIE: I have another matter that will take me a few minutes. Is there going to be any possibility of contacting the Brent Youth Court to find out whether it can be listed tomorrow. I am anxious that if he is going to be given bail he should not be in custody for longer than he need be. Otherwise I will make a mandatory order that they consider it on Monday. What I saying is that if you all want to disappear for a few minutes whilst we are making those inquiries then I am happy with that.
37. MR HULME: If you allow us to depart I will see what inquires we can make.

Adjourned

38. MR JESURUM: The consensus would appear to be that perhaps the most effective order would be one quashing the decision and requiring the Brent Youth Court to entertain the bail application as soon as practicable but, in any event, no later than Wednesday next week; it is 14 [July].
39. MR JUSTICE WILKIE: I will make an order in those terms.
40. MR JESURUM: I am grateful. Having granted the application on the first and second ground, I take it that there is no need to address you on the third. In any event, the claim for damages is not pursued.
41. MR JUSTICE WILKIE: Yes. Are there any other orders that I am required to make? Are you legally aided for this?
42. MR JESURUM: Indeed. If I may ask for costs in the usual way.
43. MR JUSTICE WILKIE: Detailed assessment of your costs.
44. MR JESURUM: Yes.
45. MR JUSTICE WILKIE: Very well.