England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		30 January 2013

1. MRS JUSTICE GLOSTER: This is a claim for judicial review by the claimant, Marcus Hall, who is aged 20 and currently in custody, against the decision by HHJ Ader given on 7 December 2012 at Wood Green Crown Court to allow the prosecution's appeal and to rescind bail. The prosecution had appealed against an earlier decision of the Thames Magistrates' Court dated 5 December 2012 to grant the claimant bail on certain conditions. Leave to bring judicial review proceedings was initially refused on the papers by Nicola Davies J, but on 20 December 2012, Wilkie J granted the claimant permission to bring proceedings.
2. The facts may be briefly summarised as follows. On 7 May 2012 the police recovered firearms and ammunition from a flat in Chingford. The occupant, Jadine Mills, was arrested by police for possession of firearms and ammunition. In May 2012, subsequent to Miss Mills's arrest, the claimant was arrested by police in relation to the firearms and ammunition seizure. He was granted police bail on three conditions: first, not to contact Miss Mills; second, night time curfew; and third, residence.
3. On 24 August 2012, Mr Paul was arrested for possession of crack cocaine. Briefly, he was stopped with a Mr Dillon Addo, a co-defendant in this case, in a motorcar on 24 August. A ball of crack cocaine was found discarded in a clingfilm wrap by the roadside close to his car. Cash was found under the sun-visor, together with pieces of clingfilm. Both were arrested at the scene. The claimant's address was searched and the police discovered a clingfilm wrap containing four lumps of crack cocaine together with a quantity of clingfilm. A further wrap was found together with a razor blade and white powder, which was cocaine, together with some electronic digital scales. He was arrested and charged with Class A drugs and made admissions in interview that it was for his own personal use. No charges were brought against Addo in relation to this incident.
4. In October 2012, Miss Mills pleaded guilty to possession of firearms and ammunition and was sentenced to a term of 5 years' imprisonment. On 4 December, the claimant was charged with conspiring to possess firearms with intent to endanger life. The more serious charge was because further evidence had apparently been unearthed which showed further association between him and others connected with the earlier incident and which also suggested that the claimant was a member of a gang which had been involved in further firearm incidents. According to Mr Hawkins, counsel for the interested party, the CPS, and as was set out in a note for mention dated 17 January 2013 which was used in the Crown Court at a hearing on that date, the further evidence placed Mr Paul nearer the centre of the incident relating to the firearms.
5. On 5 December, Mr Paul answered his police bail by attending the Thames Magistrates' Court. On that occasion, as I have already mentioned, the Magistrates granted the claimant bail on certain conditions. On that occasion he was also charged with conspiring to sell or transfer prohibitive ammunition as well as the conspiracy to possess a firearm with intent to endanger life or enable another to do so. The claimant appeared with two co-defendants: Addo and a Mr Jeffery Larbi.
6. A statement served by the prosecution at the Magistrates' Court against the claimant, including details as to how the weapons had been found, and how a search warrant had been executed at Miss Mills's flat on 7 May. It referred to the fact that during the search a Nike Air rucksack was found on top of the wardrobe in the main bedroom and that within the bag was found a quantity of firearms and ammunition. It set out the arrest of Miss Mills and the fact that in her interview she provided a pre-prepared statement stating that the bag was brought to her property the previous Friday by a friend of someone she knows called "Mark". She did not know "Mark's" last name, but his name was stored in her Blackberry telephone. The DNA evidence of a Marcus Simpson and Geoffrey Larbi were found on the bag and its contents.
7. The statement also showed that on 4 May 2012, there had been a substantial amount of telephone contact between Addo and the claimant, including calls within a short space of time at around the time it was believed that the firearms had been dropped off at Miss Mill's flat. The statement also showed that the police linked the claimant to another suspect, by virtue of 23 telephone calls and four texts, over a period between 20 October 2011 and 29 May 2012.
8. A bail application was made at the Magistrates' Court on behalf of the claimant on the following grounds: in particular, that he was 20 years of age, and of previous good character; that he was at the Open University studying criminal psychology; that he had strong community ties and a supportive family unit; that his father worked as civil servant and his mother was a consultant for a well-known company; that he would offer to reside at his home, that he would observe a curfew; that security in the sum of £2,000 was available and that he would surrender his passport. On behalf of the claimant it was submitted to the Magistrates that the above conditions would address any fear that the claimant would fail to surrender. It was also submitted that the fear of further offences was negligible, given that the claimant was a man of previous good character and had been on bail since May 2012 when the firearms had been found in Miss Mill's property. It was also said that during that period the claimant had adhered to the three conditions of the police-imposed bail.
9. The Magistrates, having heard the application for bail on behalf of all three defendants, granted the claimant bail and refused bail for the other two defendants, Addo and Larbi. Bail conditions were imposed as follows: that he had to reside at the property; that he had to be subject to a curfew from the 9.00 pm to 7.00 am and that he had to report to Leighton Police Station, surrender his passport and provide security in the sum of £2,000.
10. The prosecution made an immediate application to appeal and submitted written notice the same day. At the hearing, before HHJ Ader on 7 December 2012, the judge refused bail having heard, we are told, the same arguments on behalf of the claimant as had been presented to the Magistrates' Court. We are told however, by Mr Hawkins, that at the appeal hearing the facts of the case were presented in greater detail as set out in the "Note for Mention" for the hearing on 7 January 2013. Mr Hawkins says, and I accept, that the facts contained within that document would have been presented to the court. We are told by Mr Hawkins that that would have included reference to the crack cocaine charge as well as to the more recent evidence which had supported his arrest on the more serious charges of conspiracy to possess a firearm with intent to endanger life or enable another to do so.
11. In refusing bail, HHJ Ader said as follows:

"4. This is an application to rescind bail granted two or three days ago, the circumstances are that premises in Chingford were searched and inside was found (the brief facts were recited by HHJ Ader) Mills pleaded guilty to posession and received 5 years imprisonment. She suggested that the defendant had stored and supplied weapons for others and under the circumstances his sentence would be more than that of Mills. It is not possible to say that even if this defendant and two co-defendants listed at this court and others intended to be joined I am not dealing with their cases I am dealing with this defendant individually. I have taken into account that there are no previous convictions against him however there is also a matter of Class A drugs possession. He is of good character and an Open University student in criminal psychology, I don't hold that agaionst him, and a respectful family background. He has been on curfew and conditions offered coupled with the surrender of passport it is suggested that there is no question of flight risk.

5. Against that the Crowns say that there is serious and significant evidence against him and texts at the time, there is no forensics at the time as Mr Black as advanced eloquently on bail bearing in mind the good character and the fact that he has been on bail for several months and not breached his bail. However the situation has changed and he knows now the kind of sentence he would receive and there is factor in the balance and with such a long sentence and great incentive to not attend your trial and if to resume the ilfestyle risk of further offences. In all the circumstances there should never been given bail in this case."

12. In his helpful written and oral submissions to the court, Mr Wells, counsel on behalf of the claimant, submitted that the learned judge erred in law and principle in allowing the prosecutor's appeal against the grant of bail. He submitted that the judge had not given any good reason for assuming that there was a real risk of failure to surrender and that the judge should have upheld the grant of bail by the Magistrates' Court. The applicant was an ideal candidate for bail, given the weak case against him and the suitable bail package of conditions available. Mr Wells submitted that the decision of the judge could be regarded as perverse. Mr Wells accepted, in his skeleton argument and before this court, that it is only in exceptional circumstances that this court will review bail decisions of the Crown Court, see R(M) v Isleworth Crown Court [2005] EWHC 363 (Admin). He also accepted that it is only if this court is persuaded that the decision by the Crown Court to refuse bail was perverse, that it is appropriate for this court to grant judicial review.
13. However, Mr Wells relies on the decision of Collins J in R(on the application of D) v Woolwich Crown Court CO/9276/2012, 10 September 2012, where Collins J, in giving judgment, stated:

"The question is whether the seriousness of the offence which the recorder was entitled to take into account justified the concern that there might be a failure to surrender to his bail. The question of whether there should be a refusal of bail based upon the seriousness of the offence has been considered in a number of cases in the European Court of Human Rights and more particularly by the Privy Council in Hurnam v State of Mauritius [2006] 1 WLR 857. The approach of the Privy Council through the judgment given by Lord Bingham indicated that the seriousness of the offence, while it might provide grounds for refusing bail, did not of itself without more justify a refusal. It was a factor relevant to the judgment whether in all the circumstances it was necessary to deprive the applicant of his liberty and if that was his conclusion reached, clear and explicit reasons had to be given."

14. On the basis of that authority, Mr Wells submitted that HHJ Ader gave no adequate reasons for refusing bail and that his decision was perverse. He submitted that, in reality, the learned judge placed too much reliance on the seriousness of the offence and wrongly concluded in paragraph 5 of the note of his judgment that there had been a change in the factual situation. Mr Wells submitted that, in reality, there had been no change in the position since October when Miss Mills had pleaded guilty and had been sentenced to a term of 5 years' imprisonment. From that date, Mr Wells submitted, the claimant had clearly been aware of the fact that, if convicted, he might expect to receive a heavy sentence;, nonetheless, he was still of good character, notwithstanding the arrest for possession since he had not to date been convicted and had not breached any of his police bail conditions or indeed the ones imposed subsequently by the Magistrates.
15. In those circumstances, Mr Wells submitted that HHJ Ader's refusal of bail based on the mere fact of the potential sentence was insufficient to remand an individual into custody. Mr Wells criticised in particular the statement by the learned judge:

"However the situation has changed and he knows now the kind of sentence he would receive and there is factor in the balance and with such a long sentence and great incentive to not attend your trial and if to resume the lifestyle risk of further offences in, all the circumstances, there should have never been given bail in this case."

16. In response, Mr Hawkins, in his written and oral submissions to this court, submitted that the learned judge, taking into account all the circumstances of the case, did not err either in law or in principle in allowing the appeal. In particular, Mr Hawkins submitted that the judge's decision did not fall outside the bounds of what could be regarded as reasonable; the decision could not in any way be characterised as irrational and in that context he relied upon R(Galliano) v Crown Court Manchester [2005] EWHC 742. He submitted that it was clear from the reasons which the learned judge gave for refusing bail and, in particular, from the factual materials which were before the judge that, in no circumstances, could the decision taken by him be regarded as unreasonable, irrational or perverse.
17. Schedule 1(1) of the Bail Act, sets out the conditions required for a judge to find against the presumption of bail which is contained in section 4(1) Bail Act 1976. It is well known that a judge must be satisfied that there are substantial grounds for believing that a defendant, if released on bail, would fail to surrender, commit an offence on bail, or interfere with witnesses or otherwise obstruct the course of justice.
18. In my judgment, it is impossible in the circumstances of this case and, despite Mr Wells' helpful submissions, to characterise the decision of the learned judge as irrational or perverse. It was clear that the judge carefully and fairly considered the submissions made on behalf of the claimant as to the many positive features in his favour;, the fact that he had no previous convictions, that he was an Open University student, that he came from a respectful family background and that he had been on police bail for several months with conditions including a curfew. It is also clear that the judge took account of the submissions made on the claimant's behalf that the claimant was not at risk of flight.
19. However, against that, the learned judge clearly was entitled to take into account the fact that the claimant had been charged with an offence of possession of Class A drugs while on police bail for the firearms offence, and that there was now serious and significant evidence against the claimant, which had resulted in the more serious charge being brought against him of conspiring to possess a firearm with intent to endanger life, or to enable another to do so. For that reason, the situation had indeed changed since the original date, both of the arrest and his subsequent police bail, and given Miss Mills' plea of guilty and her sentence of 5 years. The judge was also entitled to take into account the fact that, in the circumstances (particularly the further factual evidence relating to the implication of the claimant in the firearms offences) there was a risk, as the judge said, that he might "resume the lifestyle risk of further offences".
20. Accordingly, I accept the submission made by Mr Hawkins that the learned judge was indeed entitled to allow the appeal and refuse bail, and that he clearly weighted the submissions made in favour of the claimant, against the facts of the prosecution case, the stage that the case had reached, and the more serious charge that had been raised against him. In my judgment, the judge did not merely conclude that the seriousness of the offence in itself, without more, justified a refusal of bail. He properly and, in accordance with the requirements of the Act, took into account all the appropriate circumstances and was entitled to conclude that bail should be refused.
21. One can sympathise with the claimant and his family's views in relation to this matter, in circumstances where the claimant is a young man of previous good character. However, in my judgment it is impossible to say that the decision by the learned judge was irrational or perverse. For those reasons, I would not allow judicial review of the decision.
22. LORD JUSTICE GROSS: I agree. I echo my Lady's observations as to the sadness matters such as this cause to other respectable family members. The court fully understands that and welcomes their presence in court today. That said, however sad it is, I nonetheless entertain no doubt that HHJ Ader was entitled to reach the decision he did, not least given the drugs matter and the escalation of the firearms matter. I would like to conclude by expressing my thanks to both Mr Wells and Mr Hawkins for their assistance today.
23. MR WELLS: My Lord, can I just raise one matter? We are here today by way of a civil legal aid order. Do I need to ask for a detailed assessment order?
24. LORD JUSTICE GROSS: You tell me.
25. MR WELLS: Having looked at Collins J in the other case, that's what he made at the end, regardless of the result.
26. LORD JUSTICE GROSS: It seems to me, if you need one, yes.
27. MR WELLS: Thank you. I take that from the previous judgment, having looked at the very end, the discourse.
28. LORD JUSTICE GROSS: If you need it, yes.
29. MR WELLS: Thank you.