England and Wales High Court (Queen's Bench Division) Decisions

Truro Magistrates' Court, R v. [2001] EWHC QB 385 (18th July, 2001)

Case No: CO/2496/2000

[2001] EWHC Admin 558

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 18th July 2001

B e f o r e :

LORD JUSTICE BROOKE

MR JUSTICE MORISON

and

MR JUSTICE STANLEY BURNTON

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REGINA

On the application of

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Ashley Ailes (instructed by Lemon Line & Felton for the Claimant)

David Sapiecha (instructed by the Crown Prosecution Service for the Defendant)

Hugo Keith (instructed by the Treasury Solicitor as friend of the court)

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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Brooke :

1. This is an application by Diana Mary Stevens (whom I shall call "Mrs Stevens") for judicial review of a decision by the Truro Magistrates' Court on 5th June 2000. The record of the Court of that date shows that it was adjudicated that her recognisance of £100,000 should be estreated and that certain deeds, unspecified in the order, might be released pending sale by undertaking (meaning "on an undertaking being") given by UK solicitors only. It is common ground that an order in this form was inappropriate, because Mrs Stevens had never given an recognisance, but at most only given or participated in the giving of security. The order was subsequently amended to show that security of £100,000 was estreated, It appears to me that the inappropriate drafting of the order may have been due to a more fundamental defect in the order.
2. Mrs Stevens is the mother of a man named Nicholas Stevens who was arrested by the police for various offences of fraud towards the end of 1998. He owned a property called Pewsey House (also known as Porth Kea Chapel), in Cornwall. Pewsey House is registered land. It was subject to a registered mortgage in favour of his mother to secure a loan of £56,000 she made to him in 1994 for the purchase of the property. The loan was initially made without interest, but she contends that when she and her husband went to live permanently in France in 1996, she exercised her contractual right under the mortgage to give him three months' written notice requiring him to pay interest on the amount of the loan at an annual rate of 6% payable in arrears on the usual quarter days.
3. After Nicholas Stevens was arrested, he first appeared before the Truro Magistrates' Court on 7th January 1999. The prosecuting solicitor objected to bail on the basis that he was accused of an imprisonable offence and there were substantial grounds for believing he would abscond from the jurisdiction of the court. He was in the process of selling his home and he had no family in this country. His parents lived abroad, and he had business interests abroad. Once his home was sold, he would have no financial or family ties with this country.
4. Mr Stevens's solicitor told the justices that his client owned Pewsey House, which was valued at £120,000, subject to his mother's charge. He said that his client's father was in court and that his client's mother, who is the present applicant, was prepared to stand surety for his client in the sum of £100,000. He said that her charge was worth £56,000 and that she had £65,000 in investments. He produced a letter from her investment brokers which evidenced the value of her investments and her willingness to pledge them to the court. He also produced a letter from her solicitors, Messrs Dixon & Templeton of Fordingbridge, confirming the existence of her mortgage of £56,000 over Pewsey House. They said that her charge was registered and that they were holding the charge certificate. The justices refused to grant bail on the basis suggested, and Mr Stevens was remanded in custody.
5. When the matter came back before the justices four days later the prosecution again opposed bail on the same basis. On this occasion, Mr Stevens's solicitor said that his client would deposit the title deeds of Pewsey House as surety for the sum of £100,000 to secure his release from custody. He said that Mrs Stevens's solicitors held the title deeds and that they would deposit them at a local magistrates' court. The property was up for sale, and if it was sold the security could then be cash. He went on to say that Mrs Stevens and her husband were not from a wealthy background and that if their son absconded this would amount to a considerable loss. He would also lose his inheritance and the respect of his parents.
6. On this occasion the court's notice of bail conditions shows that Mr Stevens was granted bail subject to three requirements: to surrender his passport to the court, to reside at Pewsey House and to deposit the title deeds to Pewsey House at Lyndhurst Magistrates Court. No reference was made to any sum being fixed as the value of his security. It appears that Mrs Stevens's solicitor lodged his client's charge certificate in relation to that property at the Lyndhurst court on the same day, and her son was duly released on bail.
7. On 8th February 1999 a new notice of bail conditions was issued. The relevant requirement now read:

"To deposit the title deeds to Pewsey House….at Court, or in lieu of the title deeds to Pewsey House the sum of £100,000 by bankers' draft or telephone transfer. The title deeds already deposited at the Lyndhurst Magistrates Court are not to be released by the court until the sum of £100,000 is deposited at Court. "

Two days later Messrs Dixon & Templeton, still acting as Mrs Stevens's solicitors, disclosed their understanding of the matter in a letter they wrote to the Southampton and New Forest Magistrates' Court to the effect that their client had "agreed to provide security for bail for her son".

8. Mr Stevens made three more appearances at the same court, on 8th March, 19th April and 26th April. On each occasion bail was renewed on the same terms subject to one alteration necessitated by the physical transfer of the "title deeds" from the court at Lyndhurst to the court at Truro, and another relating to a change in his required place of residence. On the last of these occasions he was remanded to appear again on 24th May 1999.
9. On 29th April 1999 Messrs Dixon & Templeton, now acting on behalf of Mr Stevens, wrote to the clerk to the justices at Truro in the following terms:

"We are writing to you about the sale of this property, where exchange of contracts is imminent, and completion of the sale could take place as early as Friday 7th May. To enable us to complete the sale on whatever turns out to be the due date, we should be grateful if you would return to us the Charge Certificate, at the same time … treating this letter as our undertaking to remit to you the sum of £100,000 from the proceeds of sale so as to underpin the conditions of our client's bail. "

10. Six days later, on 5th May, those solicitors on behalf of Mr Stevens wrote another letter to the clerk to the justices in these terms:

"We regret to tell you that due to a change of circumstances we no longer need the deeds of [Pewsey House] and we should be grateful if you would please retain them in your office and not send them to us as requested in our letter to you of 29th April 1999.

For the same reason, re failure of the sale to proceed, we shall have to ask you to treat the undertaking in our letter as cancelled."

11. The following day the solicitors wrote again, confirming a telephone conversation which they had had with a member of the staff of the court. The material part of this letter reads:

"... we confirm our understanding that Mr Stevens has now absconded and therefore it appears that the sale which was previously envisaged, cannot now take place. As you have not been able to return the Charge Certificate to us and doubtless will now not be willing to do so and as our undertaking in our letter of the 29th April 1999 was conditional on the return of the deeds, we would be grateful if you would now confirm that we are released from the undertaking."

12. On 24th May 1999 Mr Stevens failed to surrender to custody. His solicitor attended court. The court issued a warrant for his arrest not backed for bail. It also directed that the whole of the security should be estreated, and that the deeds to Pewsey House should not be released save on payment of £100,000. Mrs Stevens was not present or represented in court on this occasion, and no notice had been given to her of the possible forfeiture of the security. The court directed that she should be notified of its order.
13. On 8th June 1999 the clerk to the justices therefore wrote to Mrs Stevens at her address in France, copying his letter to Messrs Dixon & Templeton. The relevant part of his letter read:

"The Court further ordered that the surety which had been offered as a condition of his bail be estreated. The effect of this is that the house is directed to be sold, with the proceeds from the sale to be taken by the court. If there is any amount left after the completion of the sale taking into account the sum of £100,000 together with solicitors and estate agents fees, this will be forwarded to Dixon & Templeton solicitors. "

14. Messrs Dixon & Templeton replied on behalf of Mrs Stevens on 9 June 1999. They disputed that the security given to the magistrates' court extended to her mortgage, and contended that only her son's interest in Pewsey House could have been forfeited. Since he had now absconded and vacated Pewsey House he had in effect surrendered the property to their client as mortgagee in possession, and she now wished to sell the property and realise her security. In subsequent correspondence, the clerk to the justices made it clear that, as indeed appears from the court notices in question, Nicholas Stevens's bail had been subject to a security, not a surety.
15. On 3 March 2000 Mrs Stevens presented a complaint to the Truro Magistrates' Court seeking orders:

1. (a) That the security estreated by the Order dated 24th May 1999 was the beneficial interest of Nicholas Stevens, and not the complainant's separate interest in the property.

(b) That the proceeds of sale to be taken by the Court under the Order were the net proceeds after deduction of costs of and incidental to sale and all prior mortgages and charges, including that of the complainant.

(c) Directions as to whether the complainant was to sell or the court was to institute alternative means of sale.

The complaint went on to say that if the complainant's charge was affected by the Order dated 24th May 1999, she also sought an order under section 120(4) of the Magistrates' Court Act 1980 for the remission of the whole or part of the sum affected by the estreatment or forfeiture.

16. Section 120 of the Magistrates' Courts Act 1980 as amended, provides so far as is relevant, as follows:

"(1) This section applies where:

(a) a recognisance to keep the peace or be of good behaviour has been entered into before a magistrates' court; or

(b) any recognisance is conditioned for the appearance of a person before a magistrates' court, or for his doing any other thing connected with a proceeding before a magistrates' court.

(1A) If, in the case of a recognisance which is conditioned for the appearance of an accused before a magistrates' court, the accused fails to appear in accordance with the condition, the court shall -

(a) declare the recognisance to be forfeited;

(b) issue a summons directed to each person bound by the recognisance as surety requiring him to appear before the court on a date specified in the summons to show cause why he should not be adjudged to pay the sum in which he is bound;

and on that date the court may proceed in the absence of any surety if it satisfied that he has been served with a summons.

(2) If, in any other case falling within sub-section (1) above the recognisance appears to the magistrates' court to be forfeited, the court may -

(a) declare the recognisance to be forfeited;

(b) adjudge each person bound by it, whether as principal or surety, to pay the sum for which he is bound;

but in a case falling within section (1)(a) above, the court shall not declare the recognisance to be forfeited except by order made on complaint.

(3) The court which declares the recognisance to be forfeited may, instead of adjudging any person to pay the whole sum in which he is bound, adjudge him to pay part only of the sum or remit the sum.

(4) Payment of any sum adjudged to be paid under this section, including any costs awarded against the defendant, may be enforced, and any such sum shall be applied, as if it were a fine ... but at any time before the issue of a warrant of commitment to enforce payment of the sum ... the court may remit the whole or any part of the sum either absolutely or on such conditions as the court thinks just.

(5) A recognisance such as is mentioned in this section shall not be enforced otherwise than in accordance with this section..."

17. Not surprisingly, since bail had been granted to Nicholas Stevens on his security, and Mrs Stevens had never been a surety nor entered into a recognisance on his behalf, the clerk to the justices was concerned as to whether the magistrates had jurisdiction under section 120 of the 1980 Act to hear this application. He wrote to Mrs Stevens's present solicitors to this effect on 11 April 2000. In later correspondence he said he believed that their client's remedy lay within the provisions of section 5 of the Bail Act 1976, and he was listing the matter on that basis. He told them he was prepared to ask the justices to reconsider the issue of estreating the security solely on the basis that he could not be satisfied from the court file that their client had been given notice of such application on the earlier occasion. Mrs Stevens's solicitors replied that they would not wish to withdraw their application, at least until after the estreatment issue had been dealt with. In the event the court made the order I have described in paragraph 1 above.
18. In these proceedings, Mrs Stevens contends:

(1) That the security taken by the magistrates' court as a condition of the bail granted to her son applied only to her son's interest in Pewsey House, and did not extend to her mortgage.

(2) More fundamentally, that the magistrates' court had no power to take security from anyone other than Nicholas Stevens as a condition as a condition of his bail, and, correspondingly, had no power to forfeit or to estreat any security provided by herself.

19. We first heard this application on 23rd January 2001. After that hearing, we decided we needed further assistance on the law, and we reconvened for this purpose on 22nd June, when we had the additional services of Mr Hugo Keith, acting as a friend of the court. We are very grateful to Mr Keith for his help in taking us through the legislative history relating to the taking of security from a defendant in a criminal case on the one hand and the taking of recognisances from his sureties on the other.
20. There have been plenty of decided cases in recent years relating to the obligations of sureties and the circumstances in which their recognisances may be estreated in whole or in part. Butler-Sloss LJ has set out the position succinctly in her judgment in R v Maidstone Crown Court ex p Lever [1995] 1 WLR 928, 930:

"The general principle is that the purpose of a recognisance is to bring the defendant to court for trial. The basis of estreatment is not as a matter of punishment of the surety, but because he has failed to fulfil the obligation which he undertook. The starting point on the failure to bring a defendant to court is the forfeiture of the full recognisance. The right to estreat is triggered by the non-attendance of the defendant at court. It is for the surety to establish to the satisfaction of the trial court that there are grounds upon which the court may remit from forfeiture part, or wholly exceptionally the whole recognisance. The presence or absence of culpability is a factor but the absence of culpability, as found in this case by the judge, is not in itself a reason to reduce or set aside the obligations entered into by the surety to pay in the event of a failure to bring the defendant to court. The court may, in the exercise of a wide discretion, decide it would be fair and just to estreat some or all of the recognisance."

21. Section 3(4) of the Bail Act 1976 ("the 1976 Act") creates the modern power to require a defendant to provide a surety or sureties to secure his surrender to custody, and section 8 of that Act makes detailed provision in relation to bail with sureties. I have recited in paragraph 16 above the provisions of section 120 of the Magistrates' Courts Act 1980 which prescribes the procedure which must be followed before a surety's recognisance can be forfeited. The authorities in Truro appear, mistakenly, to have thought that this was the procedure they should follow in the present case after Mr Stevens failed to surrender to custody.
22. This confusion was understandable because the procedures relating to taking security from a defendant, and subsequently forfeiting it if he fails to surrender, are much less well known. It was, however, the course which the Truro justices chose to adopt on 11th January 1999, after they had refused to accept Mrs Stevens as a surety four days earlier, no doubt because she was resident in France and therefore unable to perform the obligations of a surety. It is therefore necessary for me to refer now to the statutory code prescribed by Parliament in relation to taking security from a defendant.
23. Parliament's intentions in this regard are set out in Section 3 of the 1976 Act 1976 which now reads, so far as is material:

"(1) A person granted bail in criminal proceedings shall be under a duty to surrender to custody, and that duty is enforceable in accordance with section 6 of this Act.

(2) No recognisance for his surrender to custody shall be taken from him.

(3) Except as provided by this section -

(a) no security for his surrender to custody shall be taken from him,

(b) he shall not be required to provide a surety or sureties for his surrender to custody, and

(c) no other requirements shall be imposed on him as a condition of bail.

(4) He may be required, before release on bail, to provide a surety or sureties to secure his surrender to custody.

(5) He may be required, before release on bail, to give security for his surrender to custody.

The security may be given by him or on his behalf." (Emphasis added)

Until the amendment introduced by section 54(1) of the Crime and Disorder Act 1998, which took effect on 30th September 1998, the words "If it appears that he is unlikely to remain in Great Britain until the time appointed for him to surrender to custody" appeared at the beginning of sub-section (5).

24. If a defendant is granted bail on condition that he gives security for his surrender to custody, and then fails to surrender to custody when required, the position is governed by Section 5 of the 1976 Act, which provides, so far as is material, that:

"(7) Where a person has given security in pursuance of section 3(5) above, and a court is satisfied that he failed to surrender to custody then, unless it appears that he had reasonable cause for his failure, the court may order the forfeiture of the security.

(8) If a court orders the forfeiture of a security under subsection (7) above, the court may declare that the forfeiture extends to such amounts less than the full value of the security as it thinks fit to order.

(8A) An order under subsection (7) above shall, unless previously revoked, take effect at the end of twenty-one days beginning with the day on which it is made.

(8B) A court which has ordered the forfeiture of a security under subsection (7) above may, if satisfied on an application made by or on behalf … of … the person who gave it that he did after all have reasonable cause for his failure to surrender to custody, by order remit the forfeiture or declare that it extends to such amount less than the full value of the security as it thinks fit to order.

(8C) An application under subsection (8B) above may be made before or after the order for forfeiture has taken effect, but shall not be entertained unless the court is satisfied that the prosecution was given reasonable notice of the applicant's intention to make it.

(9) A security which has been ordered to forfeited by a court under subsection (7) above shall, to the extent of the forfeiture-

(a) if it consists of money, be accounted for and paid in the same manner as a fine imposed by that court would be;

(b) if it does not consist of money, be enforced by such magistrates' court as may be specified in the order.

(9A) Where an order is made under subsection (8B) above after the order for forfeiture of the security in question has taken effect, any money which would have fallen to be repaid or paid over to the person who gave the security if the order under subsection (8B) had been made before the order of forfeiture took effect shall be repaid or paid over to him."

25. It will be noticed that this procedure makes no provision for giving notice to any third party that the security given to the court may be forfeited. The security is given to the court by the defendant himself (see section 3(5)), and the procedure for forfeiting security gives standing only to the defendant as the person who gave the security and failed to surrender to custody (see section 5(7) and 5(8B)). Astill J explained the position clearly in his judgment in R v Kent Crown Court ex p Jodka 161 JPR 638, 644 when he made a distinction between Mr Jodka's position as a surety and his position as the provider of the funds which the defendant in that case had been required to provide as security.
26. Mr Keith has shown us how before the enactment of the 1976 Act the taking of securities and sureties was provided for in piecemeal legislation. The powers of the Crown Court and the High Court differed from those in the magistrates' court, and there was no integrated regime available to all levels of court, or indeed to the police when they released a suspect on police bail. On this appeal we are not concerned with the taking of sureties, and I need say nothing more on that topic, except to observe that section 8 of the 1976 Act creates a procedure for the taking of sureties which is strikingly different from the simple procedure for the lodging of security because the object is quite different. In the one case there will be valuable security given to the court which will be forfeited if the defendant fails to appear: in the other, the court is concerned about the viability and character of the third party who promises to ensure that the defendant surrenders to custody without giving security of any kind.
27. On this appeal, in contrast, we are concerned with the way in which the old practice of granting a defendant bail on his own recognisances first attracted to itself a power in some courts, but not others, to permit him to give security to the court in lieu of entering into a recognisance, and eventually evolved into the abolition of any power to release him on his own recognisances but the universal availability of a power to take security from him (see the 1976 Act, section 3(2) and (5)).
28. The details do not matter, but the relevant powers of the High Court could be seen in section 37 of the Criminal Justice Act 1948 and the rules made pursuant to section 37(4) of that Act. The equivalent powers of the Crown Court appeared in section 13 of the Courts Act 1971 and rule 18(2) of the Crown Court Rules 1971. Section 105 of the Magistrates' Court Act 1952, in contrast, made no provision for the taking of security in support of or in lieu of recognisances, whether from sureties or from the defendant himself, as was made clear by this court in R v Harrow justices ex p Morris [1973] 1 QB 672 per Lord Widgery CJ at p 676F-H and 677F-H.
29. In 1976 Parliament decided to introduce the same regime for all criminal proceedings (see the 1976 Act, section 1(6)). Schedule 2 to that 1976 Act (at para 48(4)-(6)) shows the necessary consequential changes being made to section 13 of the Courts Act 1971. Section 37(2) of the Criminal Justice Act 1948, which permitted the taking of security from a person in the High Court in lieu of requiring him to enter into a recognisance, was repealed in Schedule 3 to the 1976 Act. In the years between the coming into force of the 1976 Act and September 1998 (for which see paragraph 23 above) the power to require a defendant to give security was limited to those cases where it appeared to the court that he was unlikely to remain in Great Britain until the time appointed for him to surrender to custody.
30. In that context, the utility of the new power was obvious. If a foreign visitor to this country was arrested for an imprisonable offence, a court might not wish to keep him in custody until any adjourned hearing, but it might also be sceptical about his willingness to reappear at that hearing. The court now had a useful power to require him to give security before he was released on bail, and in the normal course of events this security would simply be forfeited if he failed to attend again when required. I have little doubt that the words "The security may be given by him or on his behalf" were included to make it clear that his family or friends, or even the local consulate, could lodge the security required for his release without running the risk of committing the offence of agreeing to indemnify a surety which is created by section 9(1) of the 1976 Act. The fact that it is the defendant himself who gives the security is highlighted by the fact that Parliament made no requirement that anyone else should be notified before the security was forfeited on his non-attendance. The arrangements the defendant might make with those who helped him to put up the requisite security were not to be a matter for the court.
31. Parliament did not attempt to limit the type of security that might be given. I have equally little doubt, however, that it envisaged the lodging of some asset, whether in cash or kind, which could be readily forfeited on the defendant's non-appearance without any of the complications that have characterised this litigation. Although Home Office guidance published after a bill is enacted cannot be used as a guide to the interpretation of the Act which is the subject of the guidance, Home Office Circular No 206/1977, which Mr Keith showed us, provides a good indication of what was probably happening in practice in relation to the exercise of these powers in the twenty years before Parliament decided to make them available in all cases in 1998. That circular, issued before the 1976 Act came into force in April 1978 (see (1978) Justice of the Peace Vol 142 at pp 221-2) refers in the following terms (see para 8) to the new provisions relating to the taking of security:

"Security for surrender to custody may be required only from a person who appears unlikely to remain in Great Britain until the time appointed for his surrender. A court or police officer granting bail to such a person may require him to give security before release. This provision will give magistrates' courts and the police a power previously available only to the Crown Court and High Court. Courts (or police in the case of bail granted by them) have an unfettered discretion as to the form of the security, since this term is not defined in the Act. It may take the form of cash, travellers' cheques or any other article of value. In exercising their discretion in a particular case, courts or the police should have regard to the ease with which the security could be held and converted into pounds sterling in the event of forfeiture. For example it would be unwise to accept as security any perishable article or any article which could create problems of storage or valuation. Security may be given by the person granted bail or on his behalf (s 3(5)) and, in the event of his failing to surrender without reasonable cause, a court may order forfeiture (s 5(7))."

32. For the benefit of practitioners, I would add that similar guidance was given in the Home Office Circular 34/98 when the availability of this power was extended to all cases with effect from 30th September 1998. On that occasion the guidance was given (see para 7) in the following terms:

"The new power to take securities is likely to prove particularly useful in cases where the person to be bailed might not be able to provide a surety with the means to enter into a recognisance for a substantial amount. The means of the defendant, or of the person giving the security on his behalf, should continue to be a primary consideration. The courts and the police retain their existing discretion to decide as to the form of the security; although it is suggested that the security should usually be in the form of cash or a banker's draft to avoid problems of valuation, storage or conversion."

I would endorse the general wisdom of this advice, although the words I have italicised may not be a necessary consideration in cases involving security as opposed to sureties.

33. This is not to say, as the authors of this guidance recognised, that the courts have no power to require the defendant to give security in a less simple form if the justice of the case demands it, and if the security is given in a form in which it may be readily forfeited on his non-appearance without complicated disputes as to third party rights, or the risk of a charge of conversion. The present case presents an object lesson on the pitfalls that may lie in the path of a court seeking to follow a more complicated route. We have been shown an internal note by a member of the staff of the Truro court, who was aware of the existence of section 140 of the Magistrates' Courts Act 1980, which includes this passage:

"If the court does not agree with Mrs Stevens recovering her share of the property then the court keeps all the proceeds of sale. Quite how we enforce the sale of the property in these circumstances is beyond me. The court does not have good title to the property: we simply have the title deeds. We may need to take further advice on this."

34. I have a good deal of sympathy with the writer, although no doubt if the security had been properly defined in the orders the court had previously made, chancery counsel might have shown the writer a way through the thicket. Attention would have to be paid in this context to the effect of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 which has been interpreted to mean that a deposit of title deeds by way of security does not create a valid mortgage or charge (see United Bank of Kuwait plc v Sahib [1997] Ch 107, per Peter Gibson LJ at pp 135E - 141E).
35. Because there were issues still unresolved at the end of the second hearing, we permitted counsel to send us further written representations within ten days after the hearing. We received some powerful further submissions from Mr Ailes, who appeared for Mrs Stevens. They included the following observations, which appear to me to be soundly based, even though we did not hear any argument on them:

"Giving security under the Bail Act 1976 is not apt to cover interests in land. It is preferable to require the accused to raise money by obtaining a secured loan against the land and depositing money with the court. Even if in theory land may be security for the specialised purposes of the Bail Act, it ought not to be attempted by criminal courts, at least not without precisely analysing and specifying what interest and in what sum is to be given as security, and how the security is to be effectually provided.

If the Act does extend to providing security in land, the effective way of requiring such security is to make it a term that the security shall be given by way of the execution of a mortgage, charge or conditional transfer by the person seeking bail over that person's interest in the land, in such terms as may be approved by the court.

In September 1989, the Law of Property (Miscellaneous Provisions) Act 1989 abolished the deposit of deeds as an effectual method of creating an equitable mortgage or charge.

Any accused's interest in land which might be provided as Bail Act security is his interest in the land, and not the interest of a mortgagee, co-owner, person with a right of occupation, person with a right of easement, reversioner, superior landlord or sub-lessee, or a person with an equitable right or interest in the property.

The security works through the accused and he cannot give as security what he does not possess. For an accused to give security inclusive of others' estates or interests, those rights must be given up to the accused in a manner recognised by land law, otherwise the security given will be subject to such third party interests.

In the case of a mortgagee, the three ways of achieving its inclusion in an accused's security would be (a) a signed receipt for the totality of the moneys secured, (b) a deed of assignment or release from the mortgage (c) a deed of postponement, permitting any charge registered by the court to take priority over the existing charge."

36. I can understand why it may have seemed a good idea to the justices sitting on 11th January 1999 to be willing to accept the security offered to them that day. Pewsey House was being sold, there was no other third party interest in the property other than that of the defendant's mother who wished to secure her son's release from prison, and they may not have contemplated a son failing to surrender to custody if his non-surrender would involve his mother losing so much of her money which was tied up in the property.
37. I would not go so far as to say that a scheme could not have been devised which gave effect to the justices' wishes, perhaps along one of the lines suggested by Mr Ailes. But the order they made unquestionably did not, and the parties' rights and liabilities must be identified by the terms of the court's order (subject to any amendment properly made to reflect the court's true intention at the time) and not from the type of reconstruction of events to which the Crown Prosecution Service have had to have recourse in these proceedings in order to try and save the situation.
38. In the first place the loose reference to "title deeds" in respect of registered land was likely to cause difficulties. History does not record who held the land certificate, or whether the land certificate was deposited at the Land Registry (see Land Registration Act 1925 s 63(1)). Mrs Stevens's solicitors held their client's charge certificate, and it was this document which was lodged and accepted at the Lyndhurst Magistrates' Court in satisfaction of the requirement that her son "deposit the title deeds to Pewsey House" at that court. The court did not require Mrs Stevens to assign any part of her beneficial interest in Pewsey House to her son (subject to any agreement she might care to make with him for its recovery which did not create a further charge on the property) before it was willing to accept the suggested security. Nor did it originally identify the reasonable sum the security was required to represent. The whole question of her interest in the property and what was to happen to it (without any notice to her) if the "security" was forfeited was a matter on which the court order was completely silent.
39. In my judgment, in the absence of appropriate clarity, the orders of 11th January and 8th February should be interpreted only to refer to those "title deeds" that evidenced Mr Stevens's legal title to the property and such beneficial interest in the property as he possessed. They cannot be interpreted as having any reference to any beneficial interest possessed by Mrs Stevens. The order made on 5th June 2000 should be quashed, and the matter remitted to Truro magistrates' court for further consideration, in the light of this judgment, as to the order it should make, such as will recognise that Mrs Stevens is still entitled to enforce her charge over the property. It is to be hoped that all relevant parties can agree the value of that charge, if necessary with the help of a mediator, without the necessity for further expensive litigation.
40. I have reached this conclusion with no enthusiasm, since it seems to me that Mrs Stevens (or at any rate her solicitors) was well aware of the likely consequences to her interest in the property if her son should abscond. But the court's orders did not achieve the result the court desired, and it would be quite wrong in those circumstances not to recognise and give effect to the validity of her charge.
41. I have had the opportunity of reading in draft the judgment of Stanley Burnton J. I have made it clear in this judgment that I regard it as permissible for a third party to make available an asset to the defendant in order to enable him to give it as security for his release on bail. The court will then not be concerned with the arrangements made between the defendant and the third party in the event that the security is forfeited: section 5 creates no obligation for the third party to be notified. It appears that Stanley Burnton J agrees with me, so far as money is concerned: see paragraph 54 of his judgment.
42. It follows that if £100,000 had been made available out of the recent sale of Pewsey House, then subject to any question about the reasonableness of security being required in that amount, we are agreed that this sum could have been given as security, and that the court need not have been concerned that part of it represented the recent realisation of his mother's equitable interest in the house.
43. Where we appear to differ is that I see no reason why any other regime should apply where an asset such as a diamond ring (perhaps owned by a defendant's mother) is given in security, or where some other arrangement is made whereby it is crystal clear that the asset transferred to the defendant for the purpose of giving security is being provided by the defendant with the assent of the person who has made it available (or lent it, to use Stanley Burnton J's phrase) for this purpose. I have no reason to suppose that courts had not been making security requirements along the lines suggested by the Home Office in its guidance for twenty years (which included references to the lodging of articles of value) before Parliament reconsidered this legislative scheme in 1998 and made it much more widely available.
44. It may be that it may prove difficult in a complex case to create satisfactory arrangements for making use of assets provided by a third party as security, even with the assistance of skilled practitioners. If that is the case, the defendant will simply have to remain in custody, if no suitable surety within the jurisdiction can be found. This is the logic of Stanley Burnton J's conclusion in any event. I for my part am unwilling to accept that Parliament intended to introduce such rigidity into the arrangements where it might be possible to give a defendant his liberty if satisfactory security arrangements can be devised. The present case provides a good example of the type of case in which the giving of security may be the preferred course, since both Mr Stevens's parents lived outside the jurisdiction, and there is no evidence that he could offer any surety living within the jurisdiction who would be willing to bind himself in a recognisance of any amount the magistrates would have regarded as satisfactory. Mr Stevens's parents would therefore have had to allow their son to stay in prison if Stanley Burnton J's interpretation of the law is correct.
45. Since Mrs Stevens has had to bring these proceedings, which have achieved the result she sought, she should have her costs out of central funds both in this court and in the court below. This order should not be drawn up for seven days in case either party, whose attendance has been excused when judgment is handed down, wishes to make submissions to the court on the subject of costs.

Mr Justice Morison:

46. I agree, reluctantly, with the conclusion reached by Brooke LJ. Had I been sitting alone I would have dismissed the application, but I defer to my colleagues' view that the Truro Magistrates' Court failed, through no real fault of their own, to make the position clear as to Mrs Stevens's interest in the property.
47. However, I am of the view that granting bail on provision of security will often be an appropriate order to make to secure the defendant's future attendance at court. It seems to me quite clear, as a matter of construction of the Bail Act, that the court may accept security from the defendant whether he, personally, has provided it or a third party has done so on his behalf. Security and surety are two quite different "regimes", and both may have their part to play in enabling a court to fix bail.
48. For my part, I do not share the doubts and difficulties expressed in the judgment of Stanley Burnton J, a copy of which I have seen in draft. I respectfully think that he confuses the two regimes.

Mr Justice Stanley Burnton:

49. I agree with the conclusion reached by Brooke LJ and Morison J in this case. However, regrettably and with respect to them I disagree with their conclusion that under the Bail Act 1976 the Court may accept as security an asset belonging to someone other than the defendant. My principal reasons are the following:

1. Section 3(3) refers only to security taken from the defendant. If Parliament had provided for a requirement of security to be taken from a third party, that would have been expressly mentioned in that subsection and in subsection (4), and not in subsection (5). In this connection, it is to be borne in mind that a person who provides security for the performance of an obligation of another is normally regarded as a surety: cf In re Conley [1938] 2 All ER 127.
2. The words "on his behalf" in section 3(5) of the Act are ambiguous. They may mean "for", as Brooke LJ and Morison J have held; or they may have the narrower meaning of "as agent for" the defendant. Their meaning is made clear by other provisions of the Act. An example of security being given "on behalf of" a defendant, using that expression in the narrow sense, would be the deposit by a stockbroker of shares or other securities belonging to the defendant, or a deposit by a bank or other third party of money from the defendant's bank account or money lent to him. In these circumstances, the asset given as security belongs to the defendant, not a third party. In my judgment, the words "on behalf of" in section 3(5) have the narrower meaning.
3. Section 8, dealing with bail with sureties, contains no provision for or reference to the taking of security from or belonging to a surety.
4. The only power to forfeit a security is that in section 5(7), and that is limited to a security given by a defendant.
5. If the Act permitted the taking of property belonging to third party as security, provision would need to be made for giving notice, on the failure of a defendant to surrender to custody, to persons who have given security that their property may be forfeited, and provision for avoidance of forfeiture or limitation on the amount taken from the security if the person who provided the security could show that the non-appearance of the defendant occurred without fault on his part, or for other good reason. In the case of a surety who has entered into a recognizance, the court takes into account his or her means in deciding whether to estreat the entire amount of the recognizance: see R v Leicestershire Stipendiary Magistrate ex p Kaur (1999) 164 JPR 127. It would also be sensible to make provision for the court to fix the amount of security, so that someone providing property of considerable value could know in advance that not the whole of it was liable to forfeiture in the event of the defendant not surrendering to bail, in the same way that the amount of a recognizance may be fixed under section 8. But it would be essential to provide for the case where, say, a parent was willing to give as security the deeds of his or her home, where the offence with which the defendant was charged was minor, and the value of the security both absolutely and relative to the total assets of the person giving the security greatly exceeded what would have been required by way of recognizance in the same circumstances. It would be grossly unjust in such a case for the parent to lose his or her home. Parliament would not have provided for such a result.
6. The only provisions of the Act of the kind mentioned in the previous sub-paragraph relate to sureties who have entered into a recognizance pursuant to section 8, which as mentioned above does not provide for the taking of security from them.
7. Similarly, section 120 of the Magistrates' Courts Act 1980 does not apply to persons who are not defendants who give security for the purposes of bail, and there is no equivalent provision in relation to such persons.
8. Parliament would not have provided for the possible forfeiture of security belonging to a third party without making express provision for the matters referred to above. It would not have deemed a third party security to be the defendant's, thereby denying that third party his property rights. Far clearer words than the words "on his behalf" in section 3(5) would be required to have such a far-reaching result.
50. While these considerations were compelling before 2 October 2000, they are now in my judgment even stronger. An order of a Court to forfeit an asset belonging to a third party that has been provided as security is an order determining the civil rights of that third party within the meaning of Article 6 of the European Convention on Human Rights. Article 6 requires that such an order can only be made after a fair and public hearing of the claim to forfeit, and the owner of the property in question must be a party to that hearing. There is no provision in the Bail Act or elsewhere for such a hearing. Section 3(1) of the Human Rights Act 1998 requires the Court to interpret the Bail Act 1976 in a way that is compatible with the Convention Rights, and that should be done by interpreting section 3(5) of the 1976 Act in the manner indicated above.
51. I also point out that in R v Kent Crown Court, ex parte Jodka (1997) 161 JPR 638, referred to in paragraph [25] of the judgment of Brooke LJ, no argument was addressed to the Court as to the power to require security from someone other than a defendant.
52. If I am wrong as to the effect of section 3 of the 1976 Act, and the Court has power to accept security consisting of an asset belonging to a person other than a defendant, that person is a surety to whom sections 8 and 9 of the Act apply. The requirements of those provisions were not complied with in relation to Mrs Stevens.
53. For the above reasons, the magistrates had no power to take security from Mrs Stevens or to forfeit it on her son's failure to surrender to custody.
54. None of the above should be taken as casting doubt on the power of the Court to accept as security money provided by a third party on behalf of a defendant, by way of a loan to the defendant. Indeed, the normal inference to be drawn from a deposit of money by a third party pursuant to a requirement under section 3(5) of the 1976 Act that a defendant give money as security is that the third party has lent that money to the defendant.