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
		2 August 2013

MR JUSTICE FOSKETT: This is an application for judicial review of a decision made by Her Honour Judge Kent at Kingston upon Thames Crown Court on 24 May of this year refusing bail to the claimant pending a retrial on the indictment she faced. I will say more about the circumstances in which the retrial was ordered shortly.

The claimant is an Iranian national, who it is said came to the United Kingdom in June 2007. It is said that she has leave to remain in the country, although no specific evidence to that effect has been placed before me. However, I am prepared to proceed on that basis for present purposes. She is aged 28 and of previous good character.

She was arrested in relation to the allegations she faces on 17 October 2012, and has been remanded in custody thereafter. In due course, she faced an indictment, together with four other defendants, alleging as against her and others a conspiracy to facilitate the arrival of asylum seekers in the United Kingdom. As I understand it, the essential issue between her and the Crown is whether what she did was part of a conspiracy and/or whether it was for financial gain. She accepts, as I understand it, that she acted as a chaperone for four specific asylum seekers. She travelled to Spain and Turkey to meet them and she accompanied them through the airport when they arrived in the United Kingdom, she also having booked their flights into the UK. I imagine she accepts that doing that was illegal and that she is guilty of a substantive offence or substantive offences. As I have said, however, she contests the conspiracy allegation and any suggestion that what she did was for financial gain.

Whilst I deliberately say nothing about what the sentencing consequences may be in relation to the resolution of that dispute, which is an issue to which I will return shortly, it is at least arguable that a finding that she was part of a conspiracy with a view to financial gain could be more serious than simply involvement in four separate instances of facilitation and might attract a higher sentence than the sentence imposed for one or more substantive offences. It is, I think, accepted that even conviction on substantive offences would almost certainly attract an immediate prison sentence. That would seem to be confirmed by cases such as R v Le and Stark [1999] 1 Cr App R (S) 422; Attorney General's References Nos 37, 38 and 65 of 2010 (Khan & Ors) [2011] 2 Cr App R (S) 31; and R v Oliveira & Ors [2013] 2 Cr App R (S) 4. To that list could be added a case called R v Rotsias, heard recently by a division of the Court of Appeal Criminal Division, of which I was a member, which, when reported in due course, reflects on sentences in this general area.

It is perhaps important to point out that in its initial response to this application, the Crown, through Ms Heidi Stonecliffe, a senior Crown advocate, makes it clear that it is not and never has been the Crown's case that the claimant is the principal conspirator. However, the case sought to be advanced at this stage is that she is part of the wider conspiracy alleged.

I will revert to the issue of the likely sentence to the extent that it is relevant shortly, but I need to mention the aborted trial and the proposed retrial. The trial before Judge Kent commenced on 8 April, and the jury were discharged in the seventh week of the trial. I understand that this was because the trial was taking much longer than had been predicted by the prosecution and the existing jurors were not happy to stay longer than they had agreed to stay and been told that they would be required to stay at the outset of the trial. It is undoubtedly the case that the need for the termination of that trial had nothing at all to do with the claimant, and it is most unfortunate that an event such as this occurred, not merely for the claimant but doubtless for the other defendants and the prosecution witnesses also.

The retrial has been set for 6 January 2014, some five months hence, with a time estimate of four months. Mr Kivdeh, who represented the claimant at the trial and before me today, says that if the claimant remains in custody until the end of the four-month trial, she will have served the equivalent of a sentence of 3 years and 2 months or thereabouts by the time the judge passes sentence, on the assumption of a conviction. Leaving aside other matters, he has argued, certainly in his written submissions, that the claimant is likely to face a sentence of about 3 years and could have served a sentence of perhaps effectively longer than that by the time the sentence is imposed.

One criticism that he makes of the judge's ruling is the way she dealt with this issue. What she said was that there was a reasonable prospect, if the claimant was convicted on a full facts basis, that she would face a sentence that would be longer than the equivalent of the time she had spent on remand at the time of the bail application to which the present judicial review application relates. By then, of course, she had spent just over seven months in custody. Mr Kivdeh says that the judge should have looked at the position as it would be at the end of the retrial because that is the important date for this purpose.

There was considerable debate about the likely length of sentence before the judge and indeed in the written submissions put before me prior to today's hearing. But I do not consider that the likely length of sentence is a matter upon which I should pass comment. The judge was well placed to make an appropriate assessment of an issue such as this, already having heard a great deal of the case. If the challenge in this application was to that assessment, then within the parameters that I must consider this application I would not be disposed to interfere with the judge's decision. I do not necessarily say that the issue of sentence is an irrelevant matter when considering an application for bail, but the only way in which I could interfere would be if there was a plain misdirection on the relevance of the issue. I will return to this matter shortly.

There has also been a considerable amount of debate in the written submissions concerning the strengths and weaknesses of the prosecution case against the claimant, although perhaps less so in the oral submissions today. Assessing that is always a difficult matter, but it is an assessment ordinarily made before trial and before any of the evidence has been tested. That cannot be said in this case: the judge heard seven weeks' worth of evidence and must have been well familiar with much of the case, even though, as I understand it, some part of the prosecution case had still to be heard. What the judge said about this when giving her ruling on the bail application was as follows:

"I am not in a position to undertake a full assessment of the strength of the Crown's case. I have heard the evidence in this case. I have not had full access at this stage to the text messages or the Skype evidence which is said to be part and parcel of the overall evidence. However, on the evidence I have heard, I am satisfied that there is sufficient evidence that there is a case to answer against both of the defendants on the charges against them."

I should say that she was dealing with bail applications both on behalf of the claimant in this case and one of the other defendants, Mr Ramini.

Mr Kivdeh says that that passage appears to suggest that the judge was adopting a Galbraith test approach, which is not the correct approach at this stage in the bail process. I do not, with respect, think that there is anything in that point. All the judge was saying was that this was not an obviously weak case, which, given the claimant's acceptance of the four instances of facilitation, could clearly not be the case. I do not think that that argument avails the claimant.

The judge then went on to deal with other matters, but I should perhaps say this: to the extent that the strength of the case is relevant to the present application, I would not see this as an area in which, on an application such as this, this court could possibly gainsay the trial judge's assessment. The parameters for intervention by this court are limited to the well-established Wednesbury grounds and there is nothing in the assessment made by the judge which could possibly be challenged on those grounds. However, I do not consider that this was central to the judge's conclusion in relation to bail.

Of more relevance is her assessment on the essential issue of "flight risk". She made reference to the existence in the case of what she described as a "plethora of forged documents", including "forged travel documents and other official documents". She referred to the finding of a "forger's kit". All this, she said, showed that someone or more than one person involved or associated with the case had "extensive and sophisticated access to a range of forged documents which included travel documents". One such person, it was suggested on behalf of various of the defendants, was someone not charged but who was the claimant's ex-boyfriend. The judge referred to the claimant's acceptance that she, the claimant, was prepared to travel to and from Spain in order to assist asylum seekers. The judge said that, by reason of her potential access to false documents, there was a substantial risk that the claimant would fail to answer bail and there would be a high prospect of her being able to leave the United Kingdom using these documents.

Although Mr Kivdeh says that that assessment was ill-founded and not really open to the judge on the evidence, it would be one with which this court would find it difficult, if not impossible, to interfere on Wednesbury grounds because there was plainly ample material for the judge to reach a considered view on an issue such as that in the context of a case of this nature. For my part, that assessment of flight risk is one that cannot be challenged in this court.

However, an assessment of that issue is only one part of the decision-making process for a court in deciding whether it is satisfied that there are substantial grounds for believing that a defendant if released on bail, whether subject to conditions or not, would fail to surrender to custody. In that context, any risk of the nature identified by the judge must be balanced against the way those risks might be addressed by the imposition of conditions of bail.

What was being suggested in this case was that a security payment of £10,000 should be paid into court, that the claimant should live at a specified address and report to her local police station twice daily, and that she should be subject to electronic tagging between 9 pm and 6 am. It was not necessary, as I understand it, to offer to surrender her legitimate travel documents because they were currently with the immigration authorities. Mr Kivdeh said this:

"MR KIVDEH: The prosecution do not really address your Honour as to why it is that the conditions being offered, such as electronic tagging, nine hours, because we want to achieve the nine-hour requirement for it to count towards the sentence at the end; signing twice --

JUDGE KENT: But electronic tagging is not the same as a GPS device; it does not tell you where someone is. All it does is to allow Serco to report to the court that you are not at the address in question.

MR KIVDEH: Report to the police.

JUDGE KENT: Yes, to the police or to the - they normally bring it back to the court that you are not at the address. If you have made an effort to leave the country, that is all too late, is it not? All you know is that the person has not turned up at that address. You do not know where they have gone.

MR KIVDEH: If it is supplemented with signing at a police station twice daily --

JUDGE KENT: The efficiency of signing at a police station, I can tell you from my experience, is pretty mixed. It depends on the police station as to whether they notice if you sign on at all.

MR KIVDEH: We would urge it upon your Honour to resolve that doubt in favour of the defendant here --

JUDGE KENT: I would have to take into account what I know about the efficacy of certain provisions in keeping track of people and signing on. I have had cases where police stations have not even realised someone is supposed to sign on."

When giving her reasons for rejecting the bail application, the judge returned to this theme. She said this in the passage that follows her assessment of the "flight risk", as I have characterised it a little earlier:

"Further, although there are methods by which a court can otherwise monitor bail - for example, methods such as tagging or methods such as reporting to the police station - certainly I have had information that reporting to a police station is only as effective as the particular police station concerned. I have had experience that there are many occasions when the police station has not realised that someone has failed to report; and even if they do realise, the matter is not brought before the court in sufficient time for something to be done about that. As far as tagging is concerned, of course, all that will tell you is that the person has not attended the address they should attend by the requisite time. Again, by the time something is done about it, at least a period of time is going to pass. And if it is timed correctly, that might allow somebody to access a border point and leave the jurisdiction. Tagging does not tell you where they have gone, but simply that they have not gone to the address they should attend."

Immediately after that appears the judge's conclusion which reads as follows:

"So for all those reasons, I am satisfied that there are substantial grounds for the risk that these defendants will skip bail and not answer to their bail, and therefore bail must be refused."

Returning then to the substantive passage that I have just quoted concerning the efficacy of reporting and tagging and so on, the detailed grounds settled by Mr Kivdeh contain a number of assertions relating to that passage:

"27. In relation to these conditions the learned Judge concluded that electronic tagging does not show where a person is and therefore is ineffective. The learned Judge then went on to state that signing at a police station is only as effective as the police station concerned. At this part of her decision the learned Judge was relying on information known to her but not to the defence. There was no opportunity for the defence to consider the information, which led the Judge to the general conclusion that electronic tagging is ineffective. Electronic tagging is used on a daily basis within the UK criminal justice system as a form of sentence and as a bail condition.

28. As for signing at a police station, it is also unclear how the learned Judge again reached a general conclusion that police station signing is ineffective. The decision of the learned Judge is not based on a conclusion that as far as this Claimant is concerned signing at a police station would not work and setting out the reasons for such a conclusion. Instead the learned Judge appears to have decided with general applicability that police station signing is ineffective because it depends on the police station in question. There was no evidence in respect of the efficiency or effectiveness of Acton Town police station being this Claimant's local police station.

29. On the face of it the learned Judge appears to be stating that she would never accept electronic tagging and signing at a police station as effective or satisfactory bail conditions."

Mr Kivdeh has renewed his attack upon the judge's reasoning at this point in her ruling, and said that the factor advanced was based upon the judge's personal experience, had not been relied upon by the prosecution and about which there was no evidence. Ms Stonecliffe submits that the judge was entitled to take judicial notice of the effectiveness or otherwise of bail conditions such as curfew and reporting, and contends that judge's rejection of them as effective conditions was not unreasonable when balanced against the weight and strength of the rest of the evidence.

I am unable to accept this. It is always a fine line between where judicial notice begins and where the need for evidence ends. However, bail, of course, affects the liberty of the individual and what has to be characterised as untested judicial experience, however well founded, is, to my mind, an area where it is necessary to tread extremely carefully. I accept that it is merely one part of a balancing exercise, but since the judge obviously had a decided view about these two factors, which it was impossible in the circumstances for the claimant's legal team to rebut, it has to be seen as a material factor in the decision taken by the judge.

If one adds to that fact that the judge did, in my respectful view, consider the wrong date for the purposes of determining when the length of sentence issue should be determined, there do seem to me to be two material factors considered which could, not necessarily would, have affected the outcome. It is true that she did not mention the suggestion of the payment into court of £10,000, although it is unlikely that it was overlooked. Nonetheless, it would have been more reassuring if the judge had specifically referred to it and explained why it was not a factor to which she was able to attach weight. However, her essential approach was to consider the question of flight risk, and it is at least possible to argue that, had her views as to the effectiveness of a curfew, reporting and tagging been answered convincingly, she might have taken a different view as to the grant of bail.

For those reasons, the Wednesbury test is met on the basis that she took into account a factor that was not open to her on the evidence, namely the effectiveness or otherwise of a curfew, reporting and tagging, and failed to take into account a factor, namely the correct date for considering the sentence issue to which I have referred, that she ought to have taken into account. I would add that it would have been better to mention the issue of the £10,000, though had that issue stood alone it would probably not have been sufficient for me to intervene in the decision she took.

Regrettably, therefore, I have no option but to quash the decision refusing bail and remit the matter to the Crown Court for reconsideration. In the circumstances, again regrettably, I think that the application must be considered by a different judge. I propose, subject to anything that counsel may say, to direct that it is considered by His Honour Judge Price QC, the Senior Resident Judge at Kingston Crown Court, or some other judge nominated by him but approved by one of the presiding judges of the circuit if he is unable to consider the application.

One disadvantage of having to take this course is that the judge dealing with the application will not have been the judge who heard the original trial. It does seem to me, therefore, that that judge will not have had the benefit of hearing such evidence that had been given, and accordingly will have to consider the matter de novo in all senses of the term. That does mean that, although I have not felt entitled to set aside Judge Kent's decision on some of the grounds advanced on the claimant's behalf, there is to my mind no reason in principle why all relevant matters should not be readdressed at the next hearing; in other words, such matters as the relevance of any sentence and of the risks of flight and so on may be considered afresh when that application is heard.

Those are my reasons for taking the course that I have. I think it would be helpful, when this matter comes back before the court in due course, that there is a transcript of my reasoning for getting to the point that I have got to. So I hope that that will be obtained between the two of you and it is made sure that the judge who considers this has it. Are there any other directions that are necessary?

MR KIVDEH: My Lord, no.

MR JUSTICE FOSKETT: All right. I am very grateful to you both for your assistance this afternoon and for your written submissions.