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
		19th March 2010

1. MR JUSTICE HOLMAN: An application for permission to apply for judicial review has been listed for oral hearing in front of me today. The claimant is a young man, Nathaniel Bailey, who is now aged 18. He has been charged, along with a number of other people, with the murder of someone in August 2008. He is currently detained in custody, awaiting trial at the Central Criminal Court.
2. On 22nd December 2009, an application was made on his behalf to that court for bail. The application was heard by a very senior judge of that court, HHJ Hawkins QC. It was refused.
3. Although a person whose application for bail has been refused may of course make further applications for bail, the tendency is to take the earlier refusal as a starting point and it is necessary on a later application to show some change in circumstances, for otherwise a later application is little more than a veiled form of attempted appeal from the earlier refusal. So, being dissatisfied with the refusal of bail on 22nd December 2009, the defendant, now in the capacity of claimant, applied to this court for judicial review. As I have said, it is the question of permission which is formally listed before me today.
4. Clearly, HHJ Hawkins had to consider a range of matters. These obviously included (and I am not speaking exhaustively) the gravity and circumstances of the offence, the strengths or weaknesses of the case against this particular defendant, or claimant, the risk of further offending and the risk of absconding. He also had to consider the extent, if any, to which suitable conditions could minimise or safeguard against any identified risk of further offending or absconding.
5. I have seen a full transcript of the hearing on 22nd December 2009. All these issues and others were very fully argued before the judge by counsel then appearing on behalf of the prosecution and by Mr Dean George, who appeared then, as now, on behalf of the defendant/claimant.
6. As part of his application and case, the defendant/claimant called his own father, Mr Anthony Bailey, who gave oral evidence on oath. An opportunity was afforded to counsel for the prosecution to cross-examine Anthony Bailey or ask him any questions, but counsel did not do so.
7. Part of the background to this whole matter is that the murder is said to have been associated with what I will call gang warfare in the Camberwell area of south London. It was said that the defendant/claimant is, or was, a member of one gang and the deceased a member of another. The judge was later to say that the case "clearly has a gang background". One of the things that Anthony Bailey said was that he would offer a home for the defendant/claimant at his own home in West Norwood and that he, Anthony Bailey, would absolutely ensure that the defendant/claimant lived there and would punctiliously attend court. I am not sure that consideration was given during the course of the evidence of Anthony Bailey to some embargo or prohibition on the defendant/claimant entering at all the Camberwell area of the gangs, but that is obviously something which could have been explored. The father, Anthony Bailey, further offered to stand surety in the not inconsiderable sum of £100,000.
8. During his final submissions, Mr George, on behalf of the defendant/claimant, very clearly based his case on the proposition that with the involvement of the father and the surety of £100,000, together with curfew requirements, backed, if requested, by tagging and similar safeguards, there could be proper protection in this case against absconding.
9. I perfectly understand the massive pressures under which judges of the Old Bailey constantly work. I also perfectly understand and respect the submission that Mr Ben Fitzgerald has made today on behalf of the CPS, that a judge of the experience of HHJ Hawkins QC can scarcely fail to have had in his mind, when he came to make his decision, the submissions that Mr George had so recently and so clearly made to him. Further, I wish to stress very strongly indeed that a judgment or ruling on an issue such as bail is not some kind of obstacle course for a judge in which he has to surmount the obstacle of every point lest otherwise his decision is vulnerable to judicial review.
10. All that having been said, the ruling of HHJ Hawkins at the end of the hearing simply makes no reference whatsoever to the father, Anthony Bailey, or his evidence or any of the safeguards that had been proffered or suggested around the father. It is true that at page 24H of the official transcript HHJ Hawkins said:

"Balancing everything here, in my view there are substantial grounds to fear that he would fail to surrender and so, on that ground, I refuse bail."

It may of course be that implicit in the very general words "balancing everything here" is a balancing of all the aspects connected with the father and the proffered safeguards. But it does seem to me that, when a court is considering an application for bail on behalf of a young man in a very serious situation such as this, more express consideration to the aspects of proffered safeguards must be demonstrated than the judge did demonstrate in this case.

11. For these reasons, I am in no doubt at all that there is an arguable claim for judicial review here and so I unhesitatingly grant permission to apply for judicial review. It was really common ground between counsel this morning that, if I were to grant permission, then I should go on and consider the substantive judicial review. For the very same reasons that I have already effectively given, it does seem to me that the judge did not demonstrate in this case that he had given sufficient or appropriate consideration to the whole aspect of the proffered safeguards and the question whether, with the involvement of the father, there could be sufficient protection against any risks of absconding or failure to surrender to bail.
12. For those reasons, I propose to allow this now substantive claim for judicial review and to quash the decision of HHJ Hawkins on 22nd December 2009 to refuse to grant bail. I wish to stress very clearly at once the extent and consequences of my decision. I do not go on to consider this morning the question of whether or not bail should be granted. It seems to me that, on a serious matter such as this, that should plainly be considered afresh by a judge at the Old Bailey, fully informed of all relevant facts and circumstances. Further, since the role and involvement of the father, Anthony Bailey, is or may be pivotal to consideration or reconsideration of bail, it would be quite wrong of me to give any consideration to it at all in his absence this morning.
13. I simply have no view one way or another whether or not bail should be granted in this case. All I have done is quashed the current refusal so as, as it were, to level the playing field if, I stress if, the defendant/claimant decides to make a fresh application for bail. If he does do so, then that will fall to be fully considered by a judge at the Old Bailey in the light of all current relevant circumstances. The only effect of my decision is that any further application which he does choose to make for bail must be treated as a fresh application and not taking as a starting point the decision of 22nd December 2009, which should, as it were, fade completely into history.
14. Mr Dean George, whose approach to this application for judicial review has been highly measured and responsible, raised for consideration by me whether I should include as part of my order a direction or indication that any fresh application which may be made for bail should not be listed before HHJ Hawkins QC. I wish to stress that Mr George merely raised that for consideration. He did not press it strongly, and it would quite wrong to imagine that it was indicative of any sense of animosity on the part of Mr George towards HHJ Hawkins.
15. It does not seem to me that I should direct, or even indicate, that any fresh application should not be heard by HHJ Hawkins QC. There has been no suggestion within this judicial review of actual or apparent bias on the part of HHJ Hawkins QC. All that is said is that he regrettably failed fully to consider all relevant factors. I have absolutely no reason or basis for supposing that, if this happened to be listed again in front of him, he would not, as a senior judge of the Old Bailey, approach it afresh with a completely open mind. It does not seem to me that I should interfere, unless necessary and unavoidable, with the normal listing arrangements of the Old Bailey. So I simply say nothing at all as to the identity of the judge before whom any fresh application might come.
16. I will direct, so it is available, that there be a transcript at the expense of public funds of the judgment I have given, so there is complete clarity as to the reasoning all round. So I will say, as paragraph 6 of my order, that an urgent transcript shall be made at the expense of public funds of the judgment given today and supplied to the claimant, the CPS and the Central Criminal Court. It seems to me right that there should be a clear record of what I have said, so it is available for either or both parties at any further application for bail and also, out of respect for HHJ Hawkins, he should, if he wishes, be able to see my reasons for quashing his decision. So for all those reasons, I direct that an urgent transcript be made at the expense of public funds of that short judgment.
17. Are there any other matters which now arise?
18. MR GEORGE: No, my Lord.
19. MR JUSTICE HOLMAN: I am immensely grateful to you, Mr George and Mr Fitzgerald, and to the gentlemen from the CPS and indeed to the claimant's brother, for your attendance. You are all completely free to go.
20. MR FITZGERALD: My Lord.