England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		(MANCHESTER CIVIL JUSTICE CENTRE)
		07/05/2010

MR JUSTICE LANGSTAFF :

1. The claimant is in custody on remand. He is due to face a retrial by Judge alone. This follows allegations that a jury had been tampered with whilst deliberating upon his guilt on serious charges of involvement in defrauding the Customs and Excise. Until the jury tampering came to light, the claimant had been on bail. Immediately HHJ Alexander QC before whom the trial was being conducted became aware there had (in his view) been jury tampering, he revoked the claimant's bail.
2. Accordingly, the allegation of jury tampering, once accepted, had three consequences. First, HHJ Alexander QC discharged the jury. Second, he determined there should be a retrial before a judge alone. Third, the claimant lost his liberty pending that retrial.
3. He appealed against the decision by HHJ Alexander QC that there should be a trial before a judge alone on the basis that there had been jury tampering. The Court of Appeal (The Lord Chief Justice presiding) were satisfied so that they were sure that jury tampering had occurred. (R v KS [2009] EWCA Crim 2377). The court directed that HHJ Alexander QC could not himself continue with the trial, and remitted to the Presiding Judge of the Midland Circuit the decision whether the trial should before a jury, or judge alone. The court did not determine any issue of bail.
4. On 15^th February this year, Mr Justice Flaux, the Presiding Judge of the circuit, sitting in the Crown Court decided that there should be a retrial by judge alone. He refused bail. The claimant seeks to quash the decision as to bail by way of Judicial Review.
5. A number of legal issues were common ground before me. First, it was accepted by the interested party (the Crown Prosecution Service) for whom Mr Chapman appeared that the Administrative Court had jurisdiction to review the decision of a Crown Court judge in respect of bail at least where no trial was currently in progress. K S S had been one of a number of defendants whose cases I heard in October, when granting permission for a Review of what was then a decision of a circuit judge as to bail. I expressed reservations about whether this court had jurisdiction in respect of the refusal by HHJ Alexander QC to admit the claimant to bail, given that he was then undergoing trial, having been in charge of the jury and before a judge who proposed to continue the trial himself without there being a jury. It seemed to me that the decision might "relate to a trial on indictment" and if so, there was no jurisdiction. However, the decision in respect of which review is now sought is that of Flaux J., taken when the claimant is no longer in the middle of a trial. In M v Isleworth Crown Court [2005] EWHC 363 (Admin) a Divisional Court (Maurice Kay LJ. presiding) held that a decision as to bail at an early stage of criminal proceedings did not relate to trial on indictment. Although the expression "early stage of criminal proceedings" has a penumbra of uncertainty around it (see per Collins J. in R (Shergill) v Harrow Crown Court [2005] EWHC 648 (Admin) paragraph 6) it seems to me that Mr. Chapman's concession that this court has jurisdiction is nonetheless rightly made. The issue is significant, procedural, and does not "relate to trial on indictment" as that phrase has been interpreted in this context.
6. Trial is unlikely to occur before October this year. A decision as to bail by a Crown Court Judge is in principle reviewable, although the parties agree (as, emphatically, do I) that Parliament having decided to remove the right of application to the High Court in respect of any bail decision it will only be in exceptional cases that this court will consider it right to review the decision of a crown court judge in whom is vested the relevant powers.
7. Secondly, Counsel are agreed that it is not for this court to consider the decision as to bail on its merits (and, it follows, it has no power to make a fresh bail decision). The issue is not the merits of the refusal of bail, but the process by which the application for bail has been dealt with: see R (Malik) v Central Criminal Court [2007] 1 WLR 2455, a decision of the Divisional Court presided over Sedley LJ.
8. The aspect of the procedure criticised before me to the extent necessary for this court to interfere in exercising a jurisdiction which is only to be exercised sparingly is said to be the failure of the court to find any proportionate means of safeguarding and advancing the claimant's interests where matters were held against him in respect of his bail of which he had not been informed, with the result that he could not meet them although his liberty was at risk.
9. When HHJ Alexander QC heard the evidence as to jury tampering, which he accepted as establishing that that had taken place, he did so in private. He ordered only partial disclosure to the claimant. The Court of Appeal reviewed that decision, and concluded that it was properly based. That court ordered some further disclosure. But the Lord Chief Justice expressly recognised that what was disclosed would be insufficient on its own to satisfy a Tribunal so that it could be sure that there had been jury tampering. The closed material, which the court had reviewed, however was afforded.
10. The issue before the Court of Appeal was not that of the bail decision taken by HHJ Alexander QC. As to that, I am told by Counsel that the court noted that it was subject to Judicial Review, and left it as a matter for this court. It did consider whether it was open to the judge to reach the conclusion he did, however, as to the tampering and whether in the light of that conclusion it was open to him to continue to sit as Tribunal alone. As to the former, they confirmed his decision. As to the latter, they did not. Thus what was remitted to Flaux J. was the question whether there should be trial by judge alone pursuant to Section 44 Criminal Justice Act 2003. He heard and determined that issue applying the principles outlined by the Court of Appeal in R v T [2009] EWCA Crim 1035. Immediately after the making of the Section 44 Order; and appearing to occupy a subsidiary role in the day's proceedings although it had been anticipated on paper, the claimant made a further application for bail. The prosecution objected on two grounds – the risk of absconding (in the light of the previous jury tampering) and the risk of interference with the course of justice. Flaux J. agreed with those objections, but went on to indicate that he was particularly concerned, from everything that he had seen in relation to the claimant, that he was somebody who was determined by any means at his disposal to avoid the conclusion of a trial with a conviction of guilty against him and that, in those circumstances, if released on bail there remained a serious risk that he would abscond and a risk that he might interfere with the course of justice (see transcript page 55 at paragraph G.)
11. No judge whom before a bail application has come since HHJ Alexander QC's ruling as to tampering has allowed a bail application. The list - HHJ Bray, Mr Recorder Creed (4^th December 2009) and Flaux J. - also includes myself, in a decision of 22^nd October 2009 when at the invitation of the parties I was invited to rule on the merits of bail. (No one asks me now to recuse myself on that basis). I understand that Mr Recorder Creed had not seen the closed material. Nor have I. However, Flaux J. had
12. It is plain from this history (and it is accepted by counsel before me) that Flaux J expressly based his bail decision upon material which significantly included the closed material.
13. Counsel both accept that Article 5 of the European Convention and Common Law and elementary common law principles of fairness apply to bail applications. They accept that the considerations raised by Lord Phillips of Worth Matravers in Home Secretary v AF (Number 3) [2009] UKHL 28 ("AF") at paragraph 59 apply in principle to applications for bail. He was dealing with control orders. He referred to the decision of the Grand Chamber of the European Court in A v UK. [2009] 49 EHRR 29. He said it

"…establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or sources of the evidence forming the basis of the allegations."

14. In A v UK , the European Court noted (paragraph 203) that the requirement of procedural fairness under Article 5(4):-

"does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5(4) procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question.

204. Thus, the proceedings must be adversarial and must always ensure "equality of arms" between the parties. An oral hearing may be necessary, for example in cases of detention on remand. Moreover, in remand cases since the persistence of a reasonable suspicion that the accused person has committed an offence is a condition sine qua non for the lawfulness of the continued detention, the detainee must be given an opportunity effectively to challenge the basis of the allegations against him. This may require the court to hear witnesses whose testimony appears prima facie to have a material bearing on the continuing lawfulness of the detention. It may also require that the detainee or his representative be given access to documents in the case file which form the basis of the prosecution against him.

205. The court has held nonetheless that, even in proceedings under Article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person. There will not be a fair trial, However, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counter balanced by the procedures followed by the judicial authorities."

15. At paragraphs 218 to 220 the court considered means of ensuring that the detainee was put in the best position possible within the necessary limitations to deal with the material to be held against him. It recognised (at 219) that a special advocate could provide an important additional safeguard; that even where all or most of the underlying evidence remained undisclosed if the allegations contained in open material were sufficiently specific it should have been possible for the applicant to provide his representative and the special advocate with instructions: but where the open material consisted purely of general assertions the procedural requirements of Article 5(4) would not be satisfied. In short, the court regarded it as an essential aspect of justice that a detainee against whom closed evidence was determinative had to be in a position to be able to give instructions to a special advocate without which the special advocate would not know how he could best address the closed material on the detainee's behalf.
16. In Home Secretary v AF (Number 3) [2009] UKHL 28 the House of Lords held that while it might be appropriate in the interest of national security in the context of combating terrorism not to disclose sources of evidence on which the grounds for suspecting a person's involvement in terrorism-related activity were based, a person subject to a control order had to be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate in relation to them; but so long as that requirement was satisfied there could be a fair hearing without the need for detailed disclosure of the sources of evidence on which the allegations were based; but that where the disclosed material consisted of only general assertions and the case against the controlee was based solely or to a decisive extent on undisclosed materials the requirements of a fair trial and Article 6 would not be satisfied.
17. Mr Southey QC, for the claimant argued that what applied to a controlee applied also to a detainee held on remand pending trial. He relied in particular on paragraph 63 where Lord Phillips of Worth Matravers recognised the strong policy considerations that support a rule

"that a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him. The first is that there will be many cases where it is impossible for the court to be confident that disclosure will make no difference. Reasonable suspicion may be established on grounds that establish an overwhelming case of involvement in terrorism related activity but, because the threshold is so low, reasonable suspicion may also be founded on misinterpretation of facts in respect of which the controlee is in a position to put forward an innocent explanation. A system that relies upon the judge to distinguish between the two is not satisfactory, however able and experienced the judge…. "

18. He referred further in paragraphs 63, 64 and 65 to the requirements of justice and significantly referred to a link between the extent of disclosure and the nature of the consequences at stake in the procedure in which they were disclosed. At 65H he said:-

"The Grand Chamber has now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order."

19. The case of R (AHK and Others) v Home Secretary [2009] EWCA (Civ) 287 gives guidance as to the principles to be adopted to ensure fairness where the Home Secretary is unwilling to disclose relevant material on public interest grounds but where liberty of an individual is at stake. Dyson LJ., Pitchford and Ouseley JJ. had earlier held in R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin) that there was power in the court to request the appointment of a special advocate of its own motion, but that it was a power which should be exercised only in an exceptional case and as a last resort (paragraph 99). In respect of Judicial Review proceedings, the Court of Appeal having considered Malik laid out the applicable principles (Sir Anthony Clarke MR giving the judgment of the court) which are far less restrictive. Paragraph 37(iv) containing these principles bears repetition in full:

"The principles to be borne in mind are these

(a) A special advocate should be appointed where it is just, and therefore necessary (to assist a judge) in order for the issues to be determined fairly.

(b) Where the material is not to be disclosed and/or full reasons are not to be given to the claimant there are only two possibilities: (a) that the judge will determine the issues, which may include or be limited to issues of disclosure, by looking at the documents himself or herself or (b) that he or she will do so with the assistance of a special advocate

(c) The appointment of a special advocate is, for example likely to be just where there may be significant issues and/or a significant number of documents. The position may be different where there are very few documents and the judge can readily resolve the issues simply by reading them.

(d) All depends upon the circumstances of the particular case, but it is important to have in mind the importance of the decision from the claimant's point of view, the difficulties facing the claimant in effectively challenging the case against him in open court and whether the assistance of a special advocate will or might assist the claimant in meeting the Secretary of State's case and the court in arriving at a fair conclusion.

(e) These principles should not be diluted on the grounds of administrative convenience. "

20. It was expressly recognised in the judgment that the case did not involve deprivation of liberty as did a control order case. A bail case, however, plainly does.
21. Mr Southey relied upon these principles. Mr Chapman, for the interested party accepted that the principles of AF applied in a bail case and that it can be appropriate to appoint a special advocate in such a case. All depended upon what was just in the particular circumstances of the case. Here ultimately the question was whether the procedure adopted was consistent with Article 5(4) as envisaged by AF, in the absence of a special advocate being appointed. That came down to whether enough disclosure had been made to allow the court to decide the issues and the claimant to deal with them. It was clear enough, here, that there was a link between the jury tampering and the defendant. It became known that the tampering was done by a man called Hendry. He was a close associate of the claimant. He drove him to court on most days. The defendant was the only defendant left against whom verdicts remained to be returned in that phase of a series of trials. Although there was no explicit finding that the tampering was at the behest of the claimant it was reasonably obvious that this must have been so. Thus the claimant had been put in a position to make informed and appropriate submissions by the disclosure of at least this much. Mr Justice Flaux had said (albeit in the context of determining the Section 44 issue of mode of trial) that he would not be assisted by a special advocate. There was no reason to think that the decision would have been any different if it had been suggested one should be appointed to deal with the question of bail. He submitted that the proceedings were fair.

Discussion

22. The starting point for determination whether in this particular case the authorities and principles relied on by the claimant required the appointment of a special advocate is the decision of the Court of Appeal. That was to the effect that there had been jury tampering. However, the Court of Appeal did not record any finding that the claimant was responsible for that tampering or that it had been done at his behest. It is at least theoretically possible that it might have been done by others with the view to the interests of the claimant but without his involvement. Perusal of the closed material would indicate to me whether this was a tenable proposition: but both Counsel are at one in asking me to determine the point of principle as to the appointment of a special advocate without first looking at that closed material. They agree that if I should determine that the case is not one in which a fair procedure requires the appointment of a special advocate, I should then look at the material to determine whether it would be appropriate to rely upon that material at all in determining bail, and whether and if so how far any further (or any) disclosure needed to be made to protect the interests of the claimant.
23. What fairness demands is heavily dependent upon the context. I accept the principle thesis of Mr Southey QC's argument that the procedure which essential fairness demands may be different in a case where the decision has no immediate consequence as to liberty from that in a case where it does. It is, in general, essential that a person should know what case is to be made against him. The law does not permit, in general, a secret condemnation. Where, however, it is in the public interest that matters are not disclosed, but a court is of the view that they require in the public interest to be taken into account, a balance must be struck with the individual's right to know, in fairness, what they are and the extent to which the authorities may rely upon information kept secret from the individual whilst holding that material against him. Significant in the extent to which the authorities may be permitted to rely upon closed information is the consequence for the individual on the one hand, and the availability of measures which may, to a degree, assist his ability to deal with closed material.
24. This differential approach dependent on context was recognised by Flaux J. himself. He was asked by Mr. Howker, QC representing the claimant in the criminal proceedings to appoint a special advocate for the purposes of determining mode of trial. He refused, saying (Transcript, page 45F – G):

"I also gave careful consideration to whether I should accede to Mr. Howker's request that, if not prepared to order further disclosure, I should seek assistance from special counsel. But, in a ruling given this morning, I concluded it was not necessary, essentially for the reasons given by the Lord Chief Justice in rejecting a similar application ion R v T, which seemed to me to be equally applicable here. Nothing in the present applications are concerned (with) the defence to the counts on the indictment or the fairness of the future trial. What is in issue is the mode of trial."

25. I readily accept that the context in the present case, involving as it does a decision as to bail and as to liberty, is very different from that relating to the mode of trial which should be adopted. The decision under Section 44 is as to which of two fair modes of trial should be adopted. The choice may be regarded as important by the defendant because of the advantages to him which he perceives in one mode over the other, but objectively both are fair, and no question of deprivation of liberty as a consequence of unfair procedures arises.
26. Here the decision in AF is not directly applicable: the context is not that of a controlee. On the other hand, incarceration if bail is refused is a restriction of liberty to a greater extent than is the case in those subject to control orders, though it is only for a temporary duration, pending trial. The context here is of detention pending trial within closely policed time limits. Imprisonment in this context is not a consequence of a decision as to whether past events have been established such that the court may be sure of them, as after conviction, but as to whether there is a real risk that future events may occur which it is proportionate to guard against by protective measures, including imprisonment as a last resort. Risk is a broad concept. The defendant here knows in summary what is held against him – a real risk that he may interfere with justice, or may abscond. These may be capable of being established without reference to any closed material. But in this case, until the jury was tampered with, the defendant has been at liberty, without any direct accusation that he has himself interfered with jurors, or witnesses, or committed further crimes, and it is only by inferential reasoning from the fact that jury tampering has occurred that there emerges any real risk that the claimant might abscond. In such a case he will wish to grapple with what is now said against him (and a fair procedure will enable him to do this at least insofar as public interest immunity in information and sources can remain protected).
27. The decision of the Court of Appeal, which I take as a given, was not that the claimant himself tampered with the jury. I do not have to grapple with the further considerations that would apply if the court had come to that conclusion. However, the finger points strongly against the claimant. It is known that the man who tampered with the jury who on most days drove the claimant to court. The claimant was the only defendant the jury were then considering. This, in my view, provides sufficient for the claimant to give instructions which are likely to safeguard his position (though a judge, reviewing the closed material will wish to consider whether this view, reached in absence of seeing it, is correct). Accordingly, he is in a position to make use of the services of a special advocate. I accept, of course, that the claimant cannot personally have access to the material which is and remains closed after the Court of Appeal decision.
28. With that in mind, I turn to the decision in question. Mr Justice Flaux was not asked orally, as he might have been, to consider the appointment of a special advocate for the purposes of the bail decision. It is plain that the decision as to bail formed very much a subsidiary part of the hearing, at the end of it, in which Mr Justice Flaux had considered the question of mode of trial. As to that issue, having seen the closed material he did not think that a special advocate would be of any assistance to him. Had he decided, in the different context of a decision as to bail that a special advocate would be of no or little assistance, there would only have been a remote chance, if indeed any, that I would have departed from his reasoning. I feel some unease in reviewing the decision of a High Court Judge reaching a decision as to bail, particularly where the issue was not raised by what was plainly oversight, or by the erroneous view of the claimant's representatives that the decision as to a special ad he decided inHadh advocate in one context necessarily was sufficient to deal with the latter in all contexts. However, the issue is not the intrinsic quality of the decision (as to which I have no reason to think I would not have reached the same view on the material by the process Mr Justice Flaux reached it) but the question of a fair procedure which ensures it. Once the claimants' representatives realised their oversight, they might have approached the judge and invited him to reconsider his decision as to bail with the assistance of a special advocate, given the different context: and it may be said that the prosecution part of whose duty is to ensure that the judge is assisted in ensuring a fair procedure for a defendant might have raised the point too. The failure of the parties is not, however, in this case a reason for declining relief for that would be to leave potentially un-remedied an unfairness in procedure in reaching a decision affecting the liberty of the claimant.
29. In my view, a special advocate ought to have been appointed for this purpose. I suspect that the decision as to bail might be no different, and that administrative inconvenience may be caused – but the inevitable use of the word "suspect" tells the story. In a decision such as this, it is not good enough to suspect that the answer might be the same, because that plainly leaves open a reasonable possibility that it might not be (I simply do not know – and it is this ignorance which arises directly from the closed nature of the material, and gives rise to measures needed, so far as they can consistent with the public interest, to protect the claimant's own interests in relation to them). What is at stake for him is liberty for a period of some 6 months (the equivalent of a sentence of 1 year's imprisonment). This is substantial. Thus administrative inconvenience is no answer (see the last of the principles espoused by Sir Anthony Clarke MR in AHK).
30. Accordingly, for the reasons I have given the decision of Flaux J. as to bail must be quashed. The claimant remains on remand, because the effect of my decision is that the earlier decision of Mr Recorder Creed stands. He is lawfully in prison. If he wishes to make a fresh bail application and the crown wish to rely upon any closed material then a special advocate should be appointed, to receive his instructions, and to participate in the application to safeguard his interests.
31. As a footnote, I had hoped that this judgment would be available generally before the Easter Vacation. For logistical reasons that has not proved possible: but I have ensured that the parties have been told in open court of this decision, with reasons to follow, and the reasons have been circulated in draft to the parties so that they may understand the reasoning which gives rise to that conclusion. I have taken this step because the decision has the potential to affect the liberty of the subject, and it was right that he and the authorities should know of it at the earliest reasonable opportunity.