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
		31 July 2012

1. MR JUSTICE SINGH: On 11 July 2012, Holman J ordered that this application should be listed for an oral hearing, on notice to the interested party, that is the Crown Prosecution Service. This sort of hearing is commonly known as a "rolled-up" hearing. Having considered the submissions of counsel, both in writing and at the hearing before me, I have no hesitation in granting permission, since I regard this claim for judicial review as being clearly arguable. I will therefore proceed to consider the substantive claim for judicial review.
2. The factual background can be briefly summarised. The claimant is a 25-year-old man of previous good character. He is the creative director of a design consultancy. On 4 April 2012, an altercation took place in a nightclub, which ended with tragic consequences. As a consequence, the claimant has been charged with the murder of a man who died on that occasion. The claimant is now a defendant to criminal proceedings which are pending at the Central Criminal Court.
3. On 2 April 2012, a bail application was made at that court before HHJ Bevan QC. It is well known that Judge Bevan is a highly experienced criminal judge. It is also clear from the transcript of the hearing which took place before the judge that there was a great deal of material placed before him. For example, at page 3B he referred to "a fat file" which had been lodged at the court on behalf of the present claimant. The judge said that he had read it "with some care". He also had before him, as he observed at page 3F and elsewhere in the transcript, a host of character references evidencing this claimant's undoubted previous good character and evidencing how out of character this extremely serious office of violence had been, if indeed it is proved to have been committed.
4. It is also clear from the transcript of the arguments of counsel and their exchanges with the learned judge that a variety of aspects of the case were the subject of some consideration at the hearing on the bail application. Through prosecution counsel in particular, the judge was made well aware of the evidence tending to support the Crown's allegations. Of course, they may well be disputed and it will be a matter for a jury in due course to decide whether the Crown has proved its case on the criminal standard. Nevertheless, the claimant before this court fairly accepts, through counsel, that the prosecution evidence in the underlying criminal proceedings was a strong one. For example, it was noted by counsel for the prosecution at the Old Bailey (see page 5E of the transcript) that this claimant had admitted to being the person who caused the injuries and had made immediate admissions after the offence. It was also observed by counsel for the Crown at page 8C that from the Crown's perspective this was an unprovoked attack of the utmost seriousness and one where the present claimant would know the ramifications. Later, at page 8 F to H, counsel then appearing for the Crown made the submission that the Crown's concern would be that this was a person who was prepared to commit this offence by breaking a bottle and forcing it into his victim's neck over a mere argument, if even that, in a nightclub. He went on to observe that the Crown's concern is that this is the sort of person who would be prepared to do that; meaning there are very real concerns about what he would be capable of if released. He said that in the light of the fact that this is "admitted conduct on his part".
5. After an intervention by the judge, counsel for the Crown submitted that it was also fundamental to the fear that the claimant would not surrender to custody if he were granted bail knowing the seriousness of the case and what he had already admitted to doing. At that stage of the submissions, counsel for the Crown also made reference to another aspect of the prosecution's objection to the grant of bail, which concerned the defendant's, the present claimant's, own mental health and his own protection from self harm. It was observed that the claimant had been kept on suicide watch when initially arrested at the police station, and, subsequently, on remand at Brixton prison, he was being kept on the health care wing with enhanced observations and treatment with antidepressant medication.
6. There was also before the court some documentary material, in particular a letter from a consultant, dated 20 April, about the claimant's mental health, the impact of being in prison and the potential improvement there would be if he were released. The judge clearly took the view that the claimant's mental state was of "some importance" (see page 11G of the transcript), in contradistinction to how the Crown seems to be approaching it, when Counsel described it as "a somewhat subsidiary matter" at page 11F.
7. Before me, different counsel appearing for the Crown has emphasised that at a number of passages in the transcript the judge made reference to the fact that he had read the documents with care and, in particular, the character references to which I have already made reference. See, for example, page 20E of the transcript, where the judge referred to "a number of extremely articulate character references that all really point in the same direction, saying that any violence is wholly out the character". Having heard oral submissions from counsel for both parties, the learned judge then proceeded, at pages 25 to 27 of the transcript, to give his ruling, and it is necessary to set that out in full:

i. "It does not need me to stress what a sad and indeed unusual case this is. There are exceptional references. He is an exceptional young man in that this is plainly completely out of character. There are very substantial and respectable, if I may say so, sureties available.

ii. The Crown's objections are in relation to failure to surrender, further offences and his own protection.

iii. In relation to his own protection, there are two letters dated 20 April, one indicating that he is being treated with antidepressant medication. The other indicating in the second paragraph the possibility that his mental health would improve as a result of treatment in the community and referring to a depressive illness so he is plainly suffering from a degree of depression, which perhaps in the circumstances is not surprising.

iv. I find this a very difficult case but what concerns me most of all is the nature of the incident. Mr Hall [that is counsel for the defendant and present claimant] who has said everything that can be said, and of course he is not to be held to this but at the moment as the evidence stands, he having looked at the CCTV describes it as one swipe and the narrow issue likely to be being intent.

v. The difficulty is that I am told that it all happens very quickly, and he relieves the unfortunate victim of the bottle from which the victim is drinking, or the bottle he has in his hand, and uses it in a form which, on the evidence, appears to be broken having presumably broken it out of sight of the CCTV camera, to strike him in the neck with it.

vi. If there was an intent, it was borne in an instant and instantly regretted no doubt, but what he did was an act of violence for no apparent, proper provocation whether it was words spoken by the deceased. Whatever it was, it could not possibly, reasonably have provoked what happened and as Mr Hall fairly describes, it is a combination of what was said and alcohol which has had tragic results, but it is an act, on its face, of very considerable violence.

vii. It is that that persuades me, regrettably, that this is not a case in which it would be proper to grant bail. It is difficult to single out further offences, failure to surrender or his own protection. It is a mixture of those, but I take the view that there is a risk here.

viii. I am conscious of the fact that murder is dealt with sui generis to some extent, and that there must be exceptional grounds for granting bail.

ix. Here, for example, were the case against him very weak based on one identification then it might be a different matter but looking at the facts of the case, the fact that he takes responsibility for it and did it clearly, I would have thought at this stage, is going to be admitted during any forthcoming trial.

x. Regrettably therefore, I do not think that this is a case where I can grant bail. I think I would be failing in my duty were I to do so."

8. After his formal ruling, which I have quoted in full, and before the hearing concluded, the learned judge turned to counsel for the then defendant and said: "I am sorry, I am bound to say, but it is a very unfortunate case and unusual one". This has been emphasised as another aspect of the case to underline, as the claimant would submit, the admittedly unusual character of the present case.
9. Under the Bail Act 1976, there is a general right to bail, except as provided in Schedule 1 to that Act (see section 4(1)). Turning to Schedule 1, paragraph 2 provides:

i. "1. The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would—

ii. (a)fail to surrender to custody, or

iii. (b)commit an offence while on bail ... "

10. Paragraph 3 of Schedule 1 provides that:

i. "The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection ... "

11. That is the position in relation to offences generally. However, there is a different legal regime in relation to the offence of murder. Paragraph 6ZA of Schedule 1 provides:

i. "If the defendant is charged with murder, the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant."

12. Paragraph 9 of Schedule 1 provides that:

i. "In taking the decisions required by [paragraph 2(1) or, in deciding whether it is satisfied as mentioned in paragraph 2A(1), 6(1) or 6A [or of the opinion mentioned in paragraph 6ZA]] of this Part of this Schedule, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say-

(b) the nature and seriousness of the offence ... (and the probable method of dealing with the defendant for it).

(c) the character, antecedents, associations and community ties of the defendant.

i. ...

(d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committing the offence ...

(e) if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the risk that the defendant may do by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant as well, as to any others which appear to be relevant."

13. It is common ground before me, although there was some doubt over this at an earlier stage of these proceedings, that section 25 of the Criminal Justice and Public Order Act 1994 is irrelevant in the present context. That provision relates to a person who has committed an earlier relevant offence as set out in the list in subsection (2) of that section. It is common ground before me that this claimant does not fall within the scope of section 25. It is nevertheless important to note that section 25(1) provides:

i. "A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or, as the case may be, the court considering the grant of bail, is satisfied that there are exceptional circumstances which justify it."

14. It is also common ground before me that this court has jurisdiction to consider applications such as the present by way of judicial review as a result of an amendment which was made by section 17 of the Criminal Justice Act 2003, which abolished the previous ability of a detained person to seek bail from the High Court by way of appeal. The jurisdiction undoubtedly exists: see the decision of the Divisional Court in M v Isleworth Crown Court [2005] EWHC 363 (Admin), in which the main judgment was given by Maurice Kay LJ, with whom Moses J (as he then was) agreed. At paragraph 9 of his judgment, Maurice Kay LJ noted that section 17(6)(b) of the 2003 Act provides:

i. "Nothing in this section affects ... any right of a person to apply for a writ of habeas corpus or any other prerogative remedy."

15. Prerogative remedies, as is well known, must be sought by way of a claim for judicial review under Part 54 of the Civil Procedure Rules.
16. At paragraph 11 Maurice Kay LJ commented that:

i. "Although we have jurisdiction by reason of section 17(6)(b), I am in no doubt that it is a jurisdiction which we should exercise very sparingly indeed. It would be ironic and retrograde if, having abolished a relatively short and simple remedy on the basis that it amounted to wasteful duplication, Parliament has, by a side wind, created a more protracted and expensive remedy of common application."

17. Nevertheless, Maurice Kay LJ rejected, at paragraph 12, the submission that was made in that case, that judicial review was appropriate only in a rare case where a judge in the Crown Court has plainly gone wrong in an extreme way. Maurice Kay LJ preferred to put the point as follows:

i. "I do not feel able to adopt that as the test. The test must be on Wednesbury principles, but robustly applied and with this court always keeping in mind that Parliament has understandably vested the decision in judges in the Crown Court who have everyday experience of, and feel for, bail applications. Of course if bail were to be refused on a basis such as 'I always refuse in this type of case', or some other unjudicial basis, then this court would and should interfere."

18. On behalf of the claimant before me, it has been emphasised that Maurice Kay LJ was not intending in his judgment to restrict the normal Wednesbury principles. For example, at paragraph 16, Maurice Kay LJ commented that counsel in this case for the claimant:

i. "Does not seek to say that the judge failed to take anything relevant into account or took into account anything that was irrelevant. His submission is that his decision to refuse bail in this case was perverse. In my judgment, it is not possible to characterise it as such."

19. The claimant before me submits that that passage makes it clear that, in suitable circumstances, where a claimant does wish to argue, for example, that a relevant consideration was not taken into account, that will, in principle, be a good ground for judicial review in accordance with traditional Wednesbury principles.
20. The difficulty sometimes arises from the fact that the concept of Wednesbury principles is used in two distinct ways which are sometimes apt to become confused. The first sense is the narrower sense of what is sometimes called Wednesbury unreasonableness, in other words, a decision that no reasonable authority, properly directing itself, could have reached. In more modern parlance, the Administrative Court tends to refer to that ground of judicial review as irrationality, or sometimes perversity. But the Wednesbury principles, as Maurice Kay LJ clearly had in mind in the passages which I have already quoted, are not confined to that narrow ground. More broadly, they include, for example, a failure to take a relevant consideration into account, or the taking into account of a consideration which is legally irrelevant.
21. Considerable reliance was placed before me, on behalf of the claimant, on a decision by Holman J in R(NB) v Central Criminal Court [2010] EWHC 667 (Admin). It was emphasised that that case, like the present case, concerned a charge of murder. In that case, Holman J was rightly keen to stress, at paragraph 9 of his judgment, that:

i. "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."

22. Nevertheless, Holman J, having carefully considered the particular facts of the case before him, came to the conclusion that, in the circumstances, it was appropriate and necessary to grant the claim for judicial review in that case. This was because the ruling, even of an experienced criminal judge at the Old Bailey, which that case concerned, was legally flawed. In particular, at paragraph 11 of the judgment, Holman J was of the view that, in the circumstances of that particular case:

i. "The judge did not demonstrate ... that he had given sufficient or appropriate consideration to the whole aspect of the proffered safeguards and question whether, with the involvement of the father, there could be sufficient protection against any risks of absconding or failure to surrender to bail.

23. In keeping with the spirit of what Holman J said at paragraph 12 of his judgment, the present claimant does not seek a decision from this court that bail should be granted. He realistically accepts that he cannot assert that the conclusion to which the learned judge came in the present case was one that was perverse. However, what the claimant does submit is that there were a number of legal flaws in the process by which that conclusion was reached. In particular, the claimant submits that the reasons given by the learned judge in the ruling, which I have quoted in full, do not demonstrate that proper and sufficient consideration was given to a variety of matters, which, according to the legislative framework which operates, had to be taken into account. In particular, the claimant submits that the judge's ruling does not explain what view he took about the submission that curfew and other bail restrictions, amounting in effect to "virtual house arrest", might be sufficient to obviate the risk of the commission of further offences of violence or other things that the judge had to consider. The claimant complains that there was no explanation of why the impressive array of sureties, including a former police officer, that he was willing to put forward, did not obviate the risk of absconding. The claimant submits that the judge did not adequately consider or explain why he was not sufficiently impressed by the claimant's character, antecedents, associations and community ties. Finally in this context, the claimant submits that the judge did not adequately consider or explain what he made of the medical evidence before him. In particular, the claimant submits that there was medical evidence before the court that it was not in the claimant's best interests to remain in prison and that this would aggravate his mental health problems.
24. Most fundamentally, what the claimant submits is that when the ruling is read as a whole, the learned judge failed to ask himself the right questions. The claimant submits that although if one took one or two passages in isolation, it would not necessarily be right or fair to criticise the decision when one takes the reasoning as a whole and cumulatively, there are too many problems and defects in the reasoning adopted by the learned judge for the decision to be able to stand.
25. I accept the submissions on behalf of the claimant in that respect. First, at page 27F of the transcript, the learned judge said:

i. "I am conscious of the fact that murder is dealt which sui generis to some extent, and that there must be exceptional grounds for granting bail."

26. Taken by itself, I would not necessarily conclude that that passage meant that this highly experienced criminal judge had fallen into error by asking himself the wrong question but nevertheless it does start to ring some alarm bells because the reference to exceptional grounds appears to have in mind, possibly at the back of one's mind, the irrelevant test in section 25 of the Criminal Justice and Public Order Act 1994, rather than the correct tests, which it is common ground before me were applicable in the present context.
27. Secondly, the learned judge's reasoning, particularly at page 27 D to E of the transcript, refers to a number of matters which would be applicable in the generality of cases under paragraph 2 of Schedule 1 to the 1976 Act. This is why, no doubt, he refers to this being a case where it is "difficult to single out further offences, failure to surrender or his own protection. It is a mixture of those" but in the very same passage, the learned judge, both at the beginning and at the end of the same paragraph, appears to say that what is decisive in his reasoning is that "there is a risk here".
28. Thirdly, nowhere, with respect, is there any reference in the judge's reasoning to the statutory formulation, which it is common ground he did have to address in the specific context of a charge of murder. That is not to say that paragraph 2 or paragraph 3 of Schedule 1 were irrelevant, it is simply to note that they would apply in the generality of cases. What the judge specifically had to consider in the context of a charge of murder was the provisions of paragraph 6ZA. Again, it would not be appropriate in many cases, having regard to the experience of the particular judge concerned, to conclude readily that such a well-known provision would not have been in the judge's mind. Nevertheless what is worrying is that there is no reference to the legal test in that provision at all, rather, there is a reference to "a risk", at page 27F of the transcript.
29. Reading the reasoning of the judge as a whole, I accept the claimant's other submissions, which I have summarised earlier, that one looks in vain in that reasoning to find how it was, or why it was, that the judge disposed of a number of the other points that were being made on behalf of the present claimant.
30. Although, as I have stressed, as Holman J did in the NB case, that judicial review does not require a judge in this sort of case to surmount a number of artificial obstacles, nevertheless it is important to record why the law requires reasons to be given for a judicial decision. It is not only so that any reviewing court can assess the validity of the reasons which are set out. Another important reason is that the losing party should know, at least with brief reasons, why it is that they have lost or why it is that the submissions that they no doubt thought were cogently put on their behalf in fact found no favour with a judge. That is an important facet of the fair administration of justice. But there is a third and important reason why the discipline of reasons is important, and it is that the decision maker himself, or herself, is thereby enabled to check that they are indeed having regard to all relevant considerations and that they are asking themselves the right questions as directed by law.
31. For all those reasons, I have come to the conclusion that this claim for judicial review must be granted. Accordingly, and subject to any further submissions from counsel, the remedy I would propose to grant is to quash the decision refusing bail on 2 May 2012 and to remit the matter to a different judge at the Central Criminal Court for reconsideration in accordance with this judgment.
32. MR CRAGG: My Lord, I am grateful. On the question of costs for the claimant, your Lordship will not grant costs against the court, I do not think.
33. MR JUSTICE SINGH: No, one would not normally do that. It is very rare, there can be cases where bias is alleged or something of that sort.
34. MR CRAGG: The Crown Prosecution Service have, even as an interested party, been fairly robust in their defence of what the judge has said. My primary submission is that the Crown Prosecution Service should pay all, of at least a proportion of, our costs. My other submission, something I should have checked before I came to court, but my solicitor tells me, is that an order for costs out of central funds may be possible.
35. MR JUSTICE SINGH: Is that the alternative to an inter partes costs order?
36. MR CRAGG: I suppose I do not really mind how it is made up but my submission is that, given the robust approach of the Crown Prosecution Service, they should pay a proportion of the costs and the rest should come out of central funds.
37. MR JUSTICE SINGH: I will see what counsel for the Crown Prosecution Service says.
38. MR ATKINSON: My Lord has a power under section 16 of the Prosecution of Offences Act 1985 to make an order out of central funds. The Crown Prosecution Service made submissions to assist the court in relation to a decision made not by the Crown Prosecution Service but by another party and I would submit therefore that an award out of central funds is the appropriate order.
39. MR JUSTICE SINGH: That is the order I will make. That accords with my previous experience.
40. Can I thank you both for your assistance and very helpful submissions in this case.