England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		21st May 2012

MR JUSTICE FOSKETT:

1. This is an application for permission to apply for judicial review of a decision of HHJ Whitburn QC at Newcastle Crown Court on 8 May refusing the claimant bail. Though this is, strictly speaking, an application for permission, I will, if permission is granted, deal with the substantive application.
2. The claimant faces a number of allegations of rape, the complainant being a Czech national who went through a ceremony of marriage with the claimant on 10 April. He was arrested nine days after this ceremony when he took her to the Czech embassy, apparently, according to him, so that she could obtain a replacement passport. It appears that it was there that she made the allegations upon which the current criminal case is based and the claimant was arrested in consequence.
3. The complainant's direct allegation against the claimant was one of rape on about eight occasions, but she also apparently alleged that she was the victim of sex trade trafficking and that she was in effect sold by the traffickers to the claimant. At the time of the hearing before the judge and, so far as I am aware, as of now investigations are still in train in relation to that aspect of what she alleges.
4. The claimant certainly at present faces no charge in relation to that and it means of course that his application for bail fell to be judged by reference to the allegations in fact faced.
5. He is a third year university student at Sunderland University and is of previous good character. It is inevitable that this is an important time in his degree course. He was brought back to this area after his arrest and appeared at Newcastle Magistrates' Court on 23 April when he was remanded in custody for trial at the Crown Court. The Magistrates refused bail on the basis that there were risks that he would fail to surrender to his bail, that he would commit further offences and that he would interfere with witnesses. I have not seen the precise phraseology used by the Justices, I have used a phraseology which more or less mirrors the statutory test, but as will appear from what I say in a moment it is that statutory test that brings this matter before me.
6. The case came before HHJ Whitburn as I have indicated on 8 May by way of a preliminary hearing and an application for bail was made. Mr Patton, who appeared before the judge and has appeared before me today, in the course of his submissions urged the judge to bear in mind that the police had the claimant's passport, that he could be tagged electronically at the address he resided at and there could be reporting conditions, in other words, a series of measures that were designed to ensure that he surrendered to his bail in due course and to some extent would have operated as a protection against any fears of interference with witnesses and the commission of other offences.
7. The judge's ruling was expressed in relatively brief terms in these words:

"This is an application by this defendant, a man of good character and a student at Sunderland University, for bail, bail having been refused to him by the Magistrates on the basis that he would fail to surrender, he may commit other offences, he may interfere with witnesses. He is a young man who clearly has access to funds, it would appear and I have considered his position with care, particularly as he is in his last year of a tourism management course at Sunderland University. However, I do consider that the Magistrates were fully justified in coming to the conclusion that they came to and I come to the same conclusion. He has every reason to fail to surrender, there is the possibility of further offences and there is a risk of interference with witnesses, principally of course the principal witness for the prosecution. In those circumstances I refuse his application for bail."

8. It is right to say that the bail application was opposed by the prosecution essentially on the basis of the reasoning given by the learned judge. It is also right to note that the judge indicated that he had read the prosecution summary of the case.
9. The question is whether that ruling can be impugned on any of the usual public law grounds. The short point taken by Mr Patton is that the phraseology of the ruling suggests that the learned judge applied a lower threshold of satisfaction in relation to the various matters that can operate as a basis for refusing bail than the statute provides. The statute provides that there must be "substantial grounds for believing" that there would be a failure to surrender ,the commission of other offences and so on and that was not the phraseology adopted by the learned judge. It is plain from the transcript and Mrs Taylor, who appears for the prosecution today, does not dispute that that is indeed the way the judge expressed himself and that it does not accord precisely with the statutory test.
10. I am bound to say that this being an extremely experienced judge who plainly applies the statutory test on an almost daily basis is very unlikely to have misapplied the usual approach to decisions of this nature and in many cases I might have been disposed simply to say that this was an unintentional misuse of language that did not reflect as accurately as it might the normal statutory test. That may well indeed simply be the case, but on the other hand this does involve the liberty of the subject. This young man is a man of previous good character with commitments in this country. He does face some extremely serious allegations (and I am simply here talking really about the rape allegations) and the seriousness of the allegations may well result in the court being very concerned about whether he would fail to surrender in due course or whether there were, for example, substantial grounds for believing that there would be a risk of interference with witnesses in the future.
11. But it does seem to me that it is right that the defendant should have his case assessed by the correct statutory formulation and on that basis, with a degree of reluctance, I am prepared to grant permission to apply for judicial review of this decision and indeed to quash the decision refusing bail and will remit the matter to the Crown Court to be dealt with by another judge when the matter can be looked at afresh. I think that that is all I propose to say in the circumstances. I will direct that an expedited transcript of this ruling is prepared at the public expense so that the court when facing the renewed application in due course will know the reason why it is it is back there.

So there we are, Mr Patton.

MR PATTON: Thank you, my Lord.

MR JUSTICE FOSKETT: I will grant you the relief that you seek. Obviously your client remains in custody for the time being until the matter goes back before the court and it obviously will have to come before a judge other than HHJ Whitburn.

MR PATTON: You probably detected already that this is not my usual jurisdiction and I am not entirely sure without the assistance of instructing solicitors what costs applications are usually made in these cases.

MR JUSTICE FOSKETT: Well, are you legally aided or …

MR PATTON: Yes (inaudible) solicitors. Yes, we will be.

MR JUSTICE FOSKETT: Sorry, you are, you are.

MR PATTON: Yes.

MR JUSTICE FOSKETT: It is not privately funded.

MR PATTON: No, no.

MR JUSTICE FOSKETT: No, well I mean there are circumstances in which the costs orders can be made but this is strictly speaking a permission application. The Crown have been here effectively at my invitation. In the usual course of events probably there would have been no order bearing in mind you are publicly funded …

MR PATTON: Sorry, I was not asking for costs against them I just wondered if there was anything I am about to miss.

MR JUSTICE FOSKETT: Well, I had better order that your publicly funded costs be assessed on the standard basis.

MR PATTON: Thank you.

MR JUSTICE FOSKETT: Right, thank you both very much indeed.

MRS TAYLOR: Thank you.