[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shergill, R (on the application of) v Harrow Crown Court & Anor [2005] EWHC 648 (Admin) (07 April 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/648.html Cite as: [2005] EWHC 648 (Admin)

[New search] [Printable RTF version] [Help]

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

		Royal Courts of Justice Strand London WC2
		7th April 2005

1. MR JUSTICE COLLINS: During the vacation, this matter came before me vacation judge as an urgent application to quash a decision of His Honour Judge Black sitting at the Harrow Crown Court whereby he refused bail to the claimant. It seems that due to an unfortunate error, permission to seek judicial review was granted.
2. As I indicated in the previous case which I heard this morning, the practice should be that in any case where there is a claim that a decision refusing bail should be judicially reviewed, that application should be made to this court during office hourse, and in vacation, if there is no judge of this court available, to the vacation judge, again during office hourse. The matter should be heard as soon as possible, normally within, at most, 48 hours, on notice both to the Crown Court and to the prosecuting authority. Either or both of them can then attend and put in written material if they wish. The judge may indicate that in his view there is absolutely no chance that the refusal of bail could conceivably be overturned and could, in those circumstances, reject the matter out of hand. But subject to that, it would have to be heard as soon as possible for obvious reasons. I suspect that in many cases, because he would not perhaps have the full picture until he saw the matters raised on the other side, the judge would want it to be dealt with as quickly as possible orally. That would avoid any problems that might otherwise arise on renewed applications if there were a refusal on the papers.
3. However, permission having been granted I am dealing with this as the substantive hearing. All the necessary steps following permission have been abridged. Mr Wilkins is present on behalf of the CPS. There has been nothing beyond an acknowledgment of service from the Harrow Crown Court which has been served, but that acknowledgment of service does no more than draw my attention to a recent decision of the Divisional Court in M v Isleworth Crown Court [2005] EWHC 363 Admin That case involved an application to quash a refusal of bail. One of the issues raised was the question whether judicial review was excluded by virtue of section 29(3) of the Supreme Court Act 1981 because it was a matter relating to trial on indictment. In M's case, on the facts, the decision in relation to bail had arisen at a preliminary stage, I think in connection with a claim that the matter should not proceed to trial at all or some such claim. The court said in paragraph 7 through Maurice Kay LJ that it was common ground, and it accepted that the decision as to bail at an early stage of criminal proceedings did not relate to trial on indictment. That, of course, to some extent begs the question as to what is meant by "an early stage of the criminal proceedings".
4. What Mr Wilkins has submitted is that the early stage ceases on arraignment and that after arraignment the trial on indictment is commenced and therefore a decision about bail relates to trial on indictment. He has properly reminded me that this court has assumed jurisdiction to deal with custody time limit cases and those may well arise, and frequently do, after arraignment has taken place. They deal with whether the individual should or should not remain in custody, so they have an obvious analogy to applications for bail. The dictum of Lord Browne-Wilkinson upon which Maurice Kay LJ relied is in these terms:

"Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment, including the costs of such issue? If the answer is "No", the decision of the Crown Court is truly collateral to the indictment of the defendant, and judicial review of that decision will not delay his trial therefore it may well not be excluded by the section."

5. One is bound to say that looking at the list of cases which is set out helpfully in Archbold where this court has and has not applied section 29(3), it is not easy to see that those words have provided the answer which is likely to be appropriate in all cases. The law is not in a very happy state to identify what is covered relating to trial on indictment. However, the words used by Lord Browne-Wilkinson are, in my view, clearly capable of applying -- and indeed on the face of them are likely to apply -- to a decision whether or not to grant bail. That is not a decision which will delay the trial in any way. It does not normally relate to any issue in the trial normally, and is truly collateral to the indictment. In those circumstances, I am persuaded that section 29(3) does not prevent this court from considering this application for bail.
6. I am bound to say that I am not entirely happy with the expression used by Maurice Kay LJ referring to an "early stage of criminal proceedings" because it seems to me that if the principle referred to by Lord Browne-Wilkinson is applicable, there is no reason to limit it to an early stage of the proceedings. The only thing I would say is that obviously if the trial has commenced and a decision is made in the course of the trial to refuse bail, then I can well see that it may be that the situation is somewhat different because clearly if there is an application made to this court, that could affect the continuing progress of the trial itself and that should not be permitted to occur. But I see no reason why an application should not be made provided the trial goes on in the meantime, because the nature of the application and whether it does indeed relate to trial on indictment does not seem to me to be a matter which ought to be determined by the stage which the proceedings have reached.
7. It perhaps is not necessary to form any concluded view about that. Suffice it to say that I am persuaded that any application that arises, certainly before the trial itself actually starts, is one which can be dealt with by this court. I do not reach any final decision, as I do not need to, as to what the position would actually be had the trial itself commenced.
8. Mr O'Sullivan has submitted that the reasons given in this case were insufficient because, as he has put it, citing the decision of the European Court on Human Rights in Thomassy v France [1992] 15 EHRR 1, the court is required to examine all the circumstances arguing for or against the existence of a genuine requirement of public interest justifying, having due regard to the presumption of innocence, a departure from the rule and respect for individual liberty, and set them out in their decision in the application for release. It is, he submits, important that there should be a properly reasoned decision when bail is being refused. The approach to bail, as set out in the Bail Act of 1976, is clearly in accordance with what is required by Article 5. The Act requires that bail be granted unless the court is persuaded that one or other of the exceptions which permit bail to be refused exists. Of course, the mere existence of one or more of the matters which would justify refusal does not necessarily mean that a refusal will occur. It will depend on the circumstances.
9. Let us therefore look briefly at what the circumstances were here. The claimant is a young man, aged 22, of hitherto good character other than a caution for criminal damage. He is charged with an assault occasioning actual bodily harm and that charge is with a co-defendant who is also charged with two further counts of threats to kill and one of theft. The offences which were allegedly committed arose in 10th December last and the victim of the alleged assault was a lady who is a support worker for the local authority. She says that on the day in question she was visiting the co-defendant, who is the claimant's girlfriend, at her address where she had been housed under care of the Council. There was an argument which arose between her and the claimant's girlfriend. The girlfriend alleged that she was racially abused and called the police. She then, it is said, attempted to threaten the victim. Thereupon, or shortly after, the claimant came downstairs in the house and accused her the victim, she said, of abusing his girlfriend. There was an altercation and she alleges that she was punched. She identified the claimant as the person who had assaulted her.
10. Following his arrest, he was initially refused bail by the Magistrates. There were further applications and eventually the matter was listed for committal to the Crown Court. Again bail was refused in reliance on the nature and seriousness of the offence, and apparently concerns that there might be further action taken against the victim. At the end of January, because it seemed the Crown were not in a position to pursue the committal at that stage, the Magistrates did grant bail subject to conditions, the second and third of which were, first, not to contact the co-defendant or any prosecution witness, and secondly, not to enter the London Borough of Harrow. That bail was extended by His Honour Judge Friedman on 28th February at the plea and directions hearing.
11. On 6th March, the claimant breached the conditions of his bail because he went to visit his girlfriend, the co-defendant, and that involved entering the London Borough of Harrow. He said that the reason he did that was because she contacted him in a distressed state and informed him that she had been attacked and robbed and asked him to come, and that he had only been there for some five or ten minutes when the police arrived and arrested him. Following his arrest he was refused bail by the Magistrates, and on 10th March the application was made to His Honour Judge Black. The learned judge refused bail. Unfortunately, there is no record of the proceedings before the judge. It seems that it is the practice of Harrow Crown Court for bail applications -- certainly it applied to this application -- to be heard in chambers without any record being kept. Following the decision, the relevant form is filled out, and was in this case filled out. That is the normal form that is provided to a defendant when bail is refused. It has a number of printed reasons which coincide with those set out in the schedule to the Bail Act, and the one in question here was fear that he would commit further offences and there was a note that he had breached two of his bail conditions.
12. Mr O'Sullivan submits that the mere breach of condition is not of itself enough to justify a refusal of bail. That is undoubtedly, in principle, correct. But I have to decide whether the decision of the learned judge in this case, on the matter as put before him, was unreasonable in all the circumstances. I use the word "unreasonable" because, as it seems to me, the appropriate test is whether it was a decision which was within the bounds of reasonableness. That can be translated in terms of Wednesbury irrationality and there is no doubt that, Parliament having decided to remove the right of application to this court in respect of bail, it will only be in exceptional cases that this court would consider it right to review the decision of the Crown Court judge in whom is vested the relevant powers. Of course it is the Crown Court judge, or indeed the Magistrates at an earlier stage, who fulfil the requirements of Article 5 of the Convention that anyone arrested or detained must be brought before a judge within a reasonable time. Mr O'Sullivan has referred to the principles set out in the case that I have already referred to, but, as I say, those principles, as it seems to me, are clearly the same as set out in the Bail Act.
13. Mr Wilkins has informed me that it is not accepted that the account given by the claimant as to why he breached the conditions, in the circumstances, is accurate. It is said that there was evidence of a very different state of affairs. Certainly it is interesting to note that the police were called and so someone -- one assumes that it was not the co-defendant who called the police -- clearly took the view that there was a need for the police to be summoned because of the presence of the claimant.
14. Overall, I am quite unable to say that this was a decision which in any way was outside the bounds of reasonableness, and in the circumstances it was proper for the judge to give as his reasons that there had been the breaches. It was not necessary for him to spell out in written form anything further than that. However, I would not want to pass from this case without indicating that in my view it is most unfortunate that the Crown Court adopts a practice of not recording any reasons given by the judge. I do not suggest that it is necessary to record the whole of the hearing and the submissions that are made, although it may well be that that is a desirable thing to do. What, in my view, is essential is that the reasons given by a judge for refusing bail are recorded so that if there is any application for judicial review (and I should say in parenthesis that such applications are not in the least encouraged and it is only in exceptional cases that they will succeed) then this court ought to be able to have a record of what reasons the judge has given.
15. For the reasons that I have indicated, this claim must be dismissed.
16. MR WILKINS: My Lord, could I flag up one matter? That is simply the jurisdiction point.
17. MR JUSTICE COLLINS: Yes.
18. MR WILKINS: Given the uncertainty of previous cases which your Lordship indicated were in an unsatisfactory state, I wonder if your Lordship would state that there was a point of law of general importance.
19. MR JUSTICE COLLINS: I do not think this is one to take to the House of Lords.
20. MR WILKINS: My Lord, clearly not this case. It would be impractical given trial next week.
21. MR JUSTICE COLLINS: It is an interesting point and it may be desirable that we have a further argument, if any case arises and we can spot it before a Divisional Court, if this is a point which you think needs to be further developed. I have dealt with it speedily this afternoon and the law is in a somewhat unsatisfactory state. I would certainly be sympathetic to that point being decided by the Divisional Court if someone wants it and if it arises. You had better ask the CPS to keep their eyes open so they can then notify me if such a case arises and we will see what we can do.
22. MR WILKINS: Thank you.