M v Isleworth Crown Court & Anor

J U D G M E N T

1. LORD JUSTICE MAURICE KAY: This case is listed before us today initially as an application for permission to apply for judicial review. I make it clear at the outset that we propose to grant permission and to deal with the matter substantively, as both counsel have indicated their agreement to that latter course.

2. The application relates to a refusal of bail by a circuit judge sitting in Isleworth Crown Court. The position is this. The claimant, M, has been charged with four offences of conspiracy to import class A drugs. The drug referred to is cocaine and the quantities alleged are substantial. The allegation is that in the course of his employment as a baggage handler at Heathrow, M has on four occasions lent assistance to another baggage handler called W, who was more prominently concerned in the history of importations. M was seen by the police in July 2004 but was then on police bail from 27th July until 26th September 2004. He answered his bail appropriately on that date but he was then charged with these offences.

3. The case was rapidly transferred to the Isleworth Crown Court and on 30th November HHJ Katkhuda refused a bail application. It was a bail application that contained a number of positive features. They can be put into two groups. The first related to M's personal circumstances. The second related to the nature of the evidence against him. For all practical purposes it comes from W, the alleged accomplice.

4. In refusing bail, the judge referred to M's age. He was 55. He referred to his seven-year employment history at Heathrow as a ramp manager, to the absence of any disciplinary record, and to his good character, for M is, as I understand it, wholly unconvicted. He also referred to M's stable family and home circumstances. He has lived at the same address for some 20 years. Nevertheless, the judge refused bail. He observed that the allegations were serious and involved a gross breach of trust, and that they concerned importations of class A drugs in a case which involved organised crime and other criminals, including aspects in Ghana, Brazil and Barbados, although no-one has suggested that M had direct connection with or travelled to any of those or other exotic destinations.

5. The judge of course accepted that the accomplice, W, was the crucial witness but expressed the view that if W were to come up to proof and his evidence be accepted by the jury, then M would be convicted. The judge referred to the submission that it was a very weak case but concluded that because of the seriousness of the allegations there was a real likelihood of M absconding and not attending trial. He had in mind the kind of sentence which would follow upon conviction of involvement -- even a relatively minor involvement -- in importations of this kind.

6. Following that refusal of bail, the claimant made the present application to this court. Until April of last year a person in the position of M would have applied to a High Court judge for bail. However, that form of access to the High Court was abolished by section 17(3) of the Criminal Justice Act 2003, which came into force on 5th April 2004. Clearly the intention and effect of that abolition is generally to confine decisions on bail to judges in the Crown Court. Its origin is to be found in Auld LJ's report which expressed concern about the wasteful duplication of bail applications.

7. As I have said, the present application is for judicial review of a refusal of bail by the Crown Court. Two jurisdictional issues require comment, although there is no dispute about them in the present case. The first is the exclusion of judicial review in respect of "matters relating to trial on indictment" by section 29(3) of the Supreme Court Act. It is common ground, and I accept, that a decision as to bail at an early stage of criminal proceedings does not relate to trial on indictment as that expression has been interpreted in cases such as R v Manchester Crown Court ex parte DPP[1994] 98 Cr.App.R 461 HL, where Lord Browne-Wilkinson stated that the question to be posed when considering the "trial on indictment" test was as follows:

"'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."

8. M therefore overcomes that barrier.

9. The second jurisdictional question is whether a refusal of bail is susceptible to judicial review in any event. In R v Croydon Crown Court ex parte Cox[1997] 1 Cr.App.R 20 it was held in this court that a refusal of bail was not so susceptible. However, the rationale of that decision was the availability of an alternative remedy, namely the possibility which then existed of an application to a High Court judge. Now, not only has that been abolished, but section 17(6)(b) of the Criminal Justice Act 2003 provides:

"Nothing in this section affects ... any right of a person to apply for a writ of habeas corpus or any other prerogative remedy."

10. I have no doubt that prerogative remedies in that context embrace those set out in section 29(1) of the Supreme Court Act 1981 -- mandamus, prohibition and certiorari -- which are now of course respectively called a mandatory order, a prohibiting order and a quashing order in part 54 of the Civil Procedure Rules. That means that this court now has jurisdiction to review a bail decision by the Crown Court. In the recent case of Serumaga[2005] EWCA Crim 370, when sitting in the Court of Appeal Criminal Division, and when specifically considering the exceptional position of a person facing summary proceedings for contempt of court, I may have implied otherwise. However, the matter having arisen more generally and directly in the present case, I can now say that such an implication would be erroneous. Thus M overcomes the second jurisdiction barrier.

11. Although we have jurisdiction by reason of section 17(6)(b), I am no doubt that it is a jurisdiction which we should exercise very sparingly indeed. It would be ironic and retrograde if, having abolished a relatively short and simple remedy on the basis that it amounted to wasteful duplication, Parliament has, by a side wind, created a more protracted and expensive remedy of common application.

12. Mr Montgomery, on behalf of M, recognises this in his submissions when he says that judicial review is appropriate only in a rare case where a judge in the Crown Court has plainly gone wrong in an extreme way. I do not feel able to adopt that as the test. The test must be on Wednesbury principles, but robustly applied and with this court always keeping in mind that Parliament has understandably vested the decision in judges in the Crown Court who have everyday experience of, and feel for, bail applications. Of course if bail were to be refused on a basis such as "I always refuse in this type of case", or some other unjudicial basis, then this court would and should interfere.

13. What Mr Montgomery can point to in this case is a number of factors which must count in favour of M; namely his age, his good character, his unblemished work record, his stable home and family. Also, although he is charged with very serious offences, the allegations are of a somewhat junior role. Much of the 90-minute hearing before the circuit judge was taken up with Mr Montgomery seeking to urge upon him that the case against M is inherently weak. All the significant evidence comes from the accomplice W, who has pleaded guilty, and who, after admitting his own part in the conspiracy, proceeded to give the police details, first, of his own wider criminality and, secondly, of the involvement of M and others who now face prosecution. W's account emerged over a period of time and is, says Mr Montgomery, riddled with inconsistencies and provable falsehoods. Moreover, since the hearing in the Crown Court there has been disclosed to the defence a police document in which W is described as a compulsive liar.

14. In two weeks' time an application to dismiss the charges against M will be made and, exceptionally, W will be called as a witness on that occasion. Whilst I do not doubt that the case against M is not incontrovertibly a strong one, my experience of prosecutions of this kind, turning on accomplice evidence, is that they are better described as unpredictable rather than inherently weak.

15. In the course of argument it was suggested that so strong is the case for bail in M's case that the refusal was tantamount to a statement that no-one charged with these offences should ever be granted bail. I do not feel able to go that far. It is easy to imagine a person with all of M's plus points but with others in addition -- for example, a person who is a single parent with small children to care for or a person with ill health of a serious kind -- which might have persuaded the judge to take a different view. I do not wish to disguise the fact that on the information to which we have been referred I believe that I, sitting in the Crown Court, would have granted M conditional bail. However, that is not the test.

16. Mr Montgomery does not seek to say that the judge failed to take anything relevant into account or took into account anything that was irrelevant. His submission is that the decision to refuse bail in this case was perverse. In my judgment it is not possible to characterise it as such. The alleged offences are serious, involving as they do four occasions when there were very substantial importations of class A drugs at a time when M, if he was involved, would have been acting in grave breach of trust. No-one disputes that upon conviction a sentence of 10 years or maybe more would follow.

17. In those circumstances, I do not find it perverse for a judge to have taken the view that there is an unacceptable risk of absconding, notwithstanding the positive points to which Mr Montgomery refers. It is not irrelevant that the trial date was not, and is not, far distant (it has now been put back to 18th April); that there is an application to dismiss to be heard on 14th March; and, if the prosecution overcomes that, there must be an application to extend custody time limits before 22nd March. That is three weeks hence.

18. Having regard to all these circumstances, and to the very sparing way in which I have suggested that this court ought to approach applications of this kind, I have come to the conclusion that the decision to refuse bail cannot be categorised as perverse and I would therefore dismiss the application.

19. MR JUSTICE MOSES: So would I.

20. MR BIRD: My Lord, the only matter that I may raise is the question of whether there should be any reporting restrictions, bearing in mind the trial is forthcoming. I rather doubt that the jurors at Kingston will read the Law Reports, but my Lord's judgment may get reported. Either we could simply --

21. LORD JUSTICE MAURICE KAY: He should be hereafter referred to as M and all my references in the judgment ought to be to M.

22. MR BIRD: Could the references to the accomplice be references to W?

23. LORD JUSTICE MAURICE KAY: He is not facing trial. He is facing sentence.

24. MR BIRD: He is not facing trial, but he is going to be a witness in a large number of trials, some of which will be high profile.

25. LORD JUSTICE MAURICE KAY: Yes, it seems sensible. For an abundance of caution he can become W.

26. MR BIRD: In the circumstances, no application for costs.

27. LORD JUSTICE MAURICE KAY: Thank you very much.