Hasani, R (on the application of) v Blackfriars Crown Court

MR JUSTICE CRANE: This is an application for permission to apply for judicial review which came before Sullivan J. He ordered that the matter be listed for a hearing only of a stay of the Crown Court proceedings and on the question of bail.

The case is unusual. This claimant went before the Crown Court at Blackfriars on an indictment containing various counts, but dealing with two incidents on 11th May and 15th August 2004 in which violence was caused by this claimant, as the jury subsequently found, to particular individuals, and in each case the individual was black. I mention that because there has been a question of medical unfitness in this case and it may be that there is a tendency to assault black people.

The matter having come before the Crown Court, there have been various delays, but ultimately His Honour Judge Samuels QC found, because it was a matter for him, that the claimant was unfit to plead. There was then a trial before a jury on whether the claimant had done the acts in question, and the jury found that he had. The learned judge then saw a further medical report on the issue of what should be done with the claimant. That medical report indicated that now the claimant was fit to plead. The learned judge therefore ordered that there should in fact be a trial on indictment. The question arises whether he had power to make that order.

The issues arise under sections 5 and 5(a) of the Criminal Procedure (Insanity) Act 1964 as amended. There is clearly power for the Secretary of State, in certain circumstances only, under sections 5(a) and 4, to remit the person for trial. However, there is no specific power in the Act to do what the learned judge did. The case of O'Mara [2004] EWCA Crim 431 recognised that there was a lacuna, but there is no authority for filling that lacuna.

Therefore, although the acknowledgment of service has not yet been lodged, counsel on behalf of the Crown Prosecution for the Director of Public Prosecutions, Mr Dawes, to whose skeleton argument I am indebted, conceded today that there was a matter for argument (as indeed Mr Menon is submitting on behalf of the claimant) and that it is an important matter that requires to be authoritatively decided. So I am granting permission to apply for judicial review.

There is a difficulty in a Divisional Court dealing with it this term. I am not going to make a specific order because of that difficulty, but I will indicate that the matter does require as much expedition as is possible and I will see that enquiries are made about listing.

Dealing with the question of stay, I think both counsel accept, and it is apparent from the transcript, that Judge Samuels would not proceed knowing that permission had been given and there is therefore no need for a stay.

That leaves, for the moment, the question of bail. Section 17 of the Criminal Justice Act 2003 abolished the jurisdiction of the High Court in certain circumstances where that power was based upon the inherent power of the court. There has always been an inherent power in judicial review proceedings to grant bail ancillary to those proceedings. In the light of submissions by both counsel today, I take the view that the High Court's power to grant bail in judicial review proceedings, on principles other than Wednesbury principles, does remain. Therefore, I have considered bail today on the merits.

The position is this. Judge Samuels, who had conduct of the whole matter and has conducted the hearing -- without, it is true, live witnesses of the two incidents -- and who has close knowledge of the matter, plainly took the view that there was a real danger of further offences. Of course, I am not bound by his view, but plainly his view as the judge who dealt with matters deserves respect. These were unprovoked and potentially dangerous acts of an irrational kind and the jury have found that the acts were carried out.

The claimant has been in custody since 15th August 2004 and he is nearly 19 years old and of previous good character. The medical evidence is that whatever may have been the position before, he is not currently mentally ill. Indeed, the doctor's report of August of this year indicates that in her view he was not mentally ill at the time the acts were committed.

If he was released the claimant would go to live with his parents. Conditions could be imposed which would satisfactorily deal with any concern that he might abscond. But the crucial matter remains whether bail should be granted in the light of the danger of further offences. These remain serious incidents on the face of it and at the moment I proceed on the basis that there is strong evidence that he carried out these irrational acts. Although the current evidence is that he is not currently mentally ill, there has been evidence at periods that he has been suffering from a mental illness, and therefore there must be some concern about what his medical condition would be in the future. I am satisfied that bail must be refused today on the grounds of likely further offences.

There is anxiety, particularly in view of his age, about the length of time particularly if the matter cannot come before the court soon. Therefore, it may be that a court in the future could be persuaded that in view of delay, the matter should be looked at again. I do not hold out any hope that the result would be different but I decide the matter today on the basis that there should not be extensive delay.

A transcript will, of course, be prepared. It seems to me that I should probably give directions. I do not know, for reasons I have given, how soon it can come before the court. It seems to me that skeletons ought to be prepared as soon as possible on the basis that if the case can be in the list then everybody should be ready. Does anything need to be done apart from ordering skeletons within, say, seven days?

MR MENON: That should be fine, my Lord, yes. We have ordered the transcript of the original ruling of His Honour Judge Samuels. The reasoned ruling we have a transcript of. The original ruling was an earlier date.

MR JUSTICE CRANE: What is the timescale for that?

MR MENON: I think we are going to get that tomorrow. I can do a skeleton in seven days.

MR JUSTICE CRANE: That would be helpful. Anything else to add, Mr Dawes?

MR DAWES: No, my Lord.

MR JUSTICE CRANE: Do I need to order that grounds of opposition be put in? At the moment you do not have anything formally before the court, have you?

MR DAWES: No. I submitted a skeleton today. It does deal in some way with the merits. I will respond to anything that Mr Menon serves on me as soon as possible.

MR JUSTICE CRANE: What I will say is that the skeleton argument on behalf of the claimant to be filed within seven days, any grounds of opposition also served within seven days. I will leave without directions any question of you serving a skeleton in reply.

MR DAWES: Yes, my Lord.

MR JUSTICE CRANE: Thank you very much.