R, R (on the application of) v Snaresbrook Crown Court

MR JUSTICE HOLMAN: Subject to anything you may say Mr Blake-James or Mr Hadley, I will make an order in these terms:

MR BLAKE-JAMES: No my Lord.

MR JUSTICE HOLMAN: Mr Hadley?

MR HADLEY: No my Lord.

MR JUSTICE HOLMAN: I am going to ask then, when I have given a short judgment and risen, Mr Blake-James, you will liaise with the Associate, so as to get this fully and correctly typed up and drawn as rapidly as possible. If you have, as you appear to have, a laptop here, it may be that you can best type it out and email it to her address or something like that. But that is really up to you. He will not get bail, clearly will not be released until there is a sealed order of the court, communicated in whatever is the required form, to where he is being held. So it is down to you once I have finished it.

MR JUSTICE HOLMAN: This is an application by R for permission to apply for judicial review and, if permission is granted, for judicial review of a decision by a circuit judge sitting in the Snaresbrook Crown Court on 24 November 2011 to withdraw the bail which had previously been granted to him.

I wish to stress at the very outset of this judgment that, since statutory changes in 2003, the circumstances in which this court, that is, the High Court, can consider bail are now very limited and circumscribed. The only context or framework in which it can still give consideration to bail is that of judicial review on normal judicial review criteria; but many authorities, and in particular the judgment of Maurice Kay LJ in the well-known authority of M v Isleworth Crown Court [2005] EWHC 363 (Admin) all stress that this court must be very sparing before it interferes with any decision within the Criminal Justice System with regard to bail. As has been said, this court must adopt a robust approach.

That said, a stream of authorities clearly establishes that in certain limited circumstances this court can still, within judicial review, set aside a decision in relation to bail, and in even more limited circumstances, as I will later describe, substitute a decision of its own.

The essential background to this matter is that, on 25th May 2011, an affray took place in the vicinity of the exit doors to Waltham Forest Magistrates' Court. This claimant, R, was one of the young people involved. He and others were clearly arrested at the scene, and the criminal process was underway effectively from the very moment that the offence was committed. At that time this claimant was still aged 16. He became 17 during September 2011. His trial took place in mid November 2011, less than a month ago, at a time when he was aged approximately 17 years and 2 months. At all times between the date of the offence, 25 May, and the date of the decision now challenged, namely 24 November, he was on conditional bail. The conditions were, in summary, first, not to go at all to Waltham Forest Magistrates' Court, second, not to contact the four co-defendants, and third, a home curfew between 10.00 pm and 6.00 am, with a doorstep condition.

The CPS are represented before me today as interested party by Mr Steven Hadley, who was also counsel throughout the trial to which I will shortly refer. I understand from Mr Hugh Blake-James, who appears as counsel on behalf of the claimant, that there is no suggestion of any breach of any of those conditions at any time in the period between 25 May and 24 November and Mr Hadley confirms that to be the case, so far as the prosecution are aware.

The trial apparently lasted about 7 days. There were initially five defendants including this claimant. After several hours of deliberation, the jury returned unanimous verdicts of guilty of affray in relation to this claimant and one other defendant.

At that point the judge gave a majority direction to the jury in relation to the three remaining defendants, in relation to whom they had not at that point been able to reach unanimous verdicts. The jury then retired to continue their deliberation in relation to those three defendants. As I understand it, although not material to what I now have to decide, the remaining three defendants were thereafter acquitted.

Immediately after the jury had retired, following the majority direction, the following event took place. I read now from paragraph 13 of the advice in relation to judicial review, drafted by Mr Blake James, dated 28th November 2011. He was, counsel at trial on behalf of the claimant. He says in paragraph 13:

I do not have available to me any transcript or other contemporary record of those events. However, as I have said, Mr Steven Hadley was present then and is also present now, on behalf of the CPS. He expressly confirms that that passage by Mr Blake-James is a fair and indeed full account of that brief but significant event. I asked Mr Hadley whether at any stage during those recorded exchanges the judge had invited him, on behalf of the Crown, to express any view as to whether bail should now continue or be withdrawn. Mr Hadley says that the judge did not invite him to do so but, somewhat to my surprise, that it is not the practice in the Crown Court for judges ever to consult or ascertain the views of the Crown before making decisions with regard to bail, at any rate after conviction and before sentence.

So, it is that decision, which has had the effect that between then and now the claimant has been detained in Feltham Young Offender Institution, that he seeks to challenge by this claim for judicial review.

To my mind the claim is clearly arguable and so, as a first decision, I grant permission to apply for judicial review. Following the approach adopted in a number of authorities, I immediately proceed to consider the substantive judicial review.

Section 4 of the Bail Act 1976 provides at subsection (1):

So, one turns next to Schedule 1. Paragraph 2 of schedule 1 to the Act provides that:

Although there is no reason to suppose that the judge had it in mind in the present case, I mention also paragraph 3 of Schedule 1 which provides that:

So the judge could only lawfully not grant bail if he was satisfied that that there were substantial grounds for believing that one or more of conditions (a), (b) or (c) applied. One then reverts to section 5 of the Act itself. Section 5(3) provides:

There was clearly, therefore, a statutory duty on the judge to give reasons for withholding the bail which had been granted to this claimant throughout the whole of the previous 6 months. Patently, such reasons had to extend to a minimum reasonable level of adequacy, and had to identify the ground or grounds upon which the court was satisfied that bail should now be refused, and with a minimum level of adequacy identify the case specific reasons for being so satisfied. Further, although the Bail Act does not say so in terms, it is to my mind elementary that before any court makes a decision as to bail, and especially a decision withdrawing bail which had previously been granted to a child, it must give to that person or his advocate a fair opportunity to make submissions.

I return, therefore, to Mr Blake-James's account of what took place as described in paragraph 13 of his advice. It seems to me, with due respect to this judge in a busy Crown Court, that the procedure was highly irregular and, indeed, contrary to the statute. He did not give any opportunity at all to the claimant or his barrister to advance any reasons, either before, or indeed after, announcing his decision as to bail. It was, in my view, a serious error for the judge simply to state to the claimant that he would be remanded into custody, without first hearing submissions from his barrister. But it was an even more grave error when the barrister, who had clearly been taken by surprise, then indicated to the judge that he would seek to persuade the judge otherwise, and the judge simply said: "no". Further, it seems to me, with respect to the judge, that simply to say, and this is agreed to be the totality of what he did say, "a custodial sentence is inevitable - you will be remanded into custody", fails to give adequate reasons and, indeed, does not expressly identify the statutory ground or grounds in Schedule 1 upon which bail is being withdrawn. It seems difficult to see that the judge had in mind particularly interference with witnesses, since by then the trial in relation to this defendant/claimant had concluded with the verdict of the jury. It is possible that the judge had in mind a risk of committing an offence while on bail. It is difficult to see why he should have had that in mind if he did. I have been told by Mr Blake-James, without demur from Mr Hadley, that apart from this affray offence, there are no previous convictions recorded against this claimant. He had never been before any court before, and apart from some reprimand he had never been in any trouble with the police before. He had been on bail throughout the 6-month period. There is no indication that he had committed any offences during that period. On the whole, one would have thought that in the period now between conviction and sentence he would want to be on his best behaviour and, if anything, would be less, rather than more, likely to commit an offence.

It is probable, although he did not say so in terms, that what the judge had in mind was paragraph (a) and substantial grounds for believing that if released on bail the claimant will fail to surrender to custody. Clearly, once the point is reached when a defendant has been convicted, and all the more so if the judge indicates (or it is otherwise obvious) that a custodial sentence is inevitable, a heightened risk of failure to surrender to custody may arise.

But if the judge thought that, he certainly did not give any reasons why he thought that. Of itself, the mere fact that a person has been convicted and a custodial sentence is inevitable, is not sufficient to trigger the exception to bail. It still is necessary that the court is satisfied that there are substantial grounds for believing that one of the statutory exceptions applies.

So, as it seems to me, there is a second significant defect in the decision of this judge, namely, a failure, in disregard of section 5 (3) of the Bail Act, to give any, or certainly any adequate, reasons as to why he was withdrawing bail. Those two conclusions, namely the defect of the failure to hear counsel and the defect of the failure to give adequate reasons, are themselves sufficient to undermine the existing decision. I am quite clear that this judicial review must in any event be allowed, to the extent necessary to quash the existing decision and require a re-determination of the question of bail.

I come, however, to the much harder question for me today, namely, should I immediately remit the question of bail to the judge in question, for reconsideration by him after properly hearing submissions by Mr Blake-James or other counsel on behalf of the claimant, and indeed, if appropriate, anything the Crown may wish to say.

My attention has been drawn by Mr Blake-James to the authority of Fergus v Southampton Crown Court [2008] EWHC 3273 (Admin), in which Silber J quashed a decision by a judge in the Southampton Crown Court to withdraw bail and, as a substantive outcome, substituted his own decision with regard to bail and the conditions of bail. Mr Blake-James invites me to adopt a similar approach in the present case. I wish to stress that there is, to my mind, a very significant difference between the procedural situation with which Silber J was faced and that with which I am faced. In that case, the criminal proceedings had not reached trial and the decision to draw withdraw bail had been made by a judge, who does not seem to have been dealing with the case with any particular continuity, at some interlocutory hearing.

The situation in the present case is very different indeed. There has now been a trial presided over by a circuit judge. The defendant has been convicted but not yet sentenced. So, the bail decision is one which has been made within the course of an overall composite criminal trial, under the direction of the trial judge who, as I understand it, is the judge who will consider sentence on the date which has been fixed, 9 January 2012.

In my view, this court must be very especially sparing before, in the course of a trial itself, it substitutes its own decision as to bail for that of the judge conducting the trial. If this court considers, as I do, that there has been significant procedural error, it should remit the substantive issue of bail for reconsideration by the judge, who is currently conducting this case in the Crown Court, unless this court can properly conclude that no reasonable judge, properly directing himself, could have withdrawn or could now withdraw bail (subject to any appropriate conditions or varied conditions). If I am satisfied that not only this judge, but no judge acting reasonably and lawfully, could fail to grant bail (subject to any appropriate conditions), then it is no more than a waste of time and expense to remit the matter to the Crown Court. If, however, there is still room for a discretionary decision to withdraw bail, then that is a decision which should be made by the Crown Court judge, but after hearing submissions on behalf of the claimant and possibly the prosecution.

So I deliberately set a very high test. I wish to stress very clearly indeed that I am expressing no view, one way or another, upon the observation by the Crown Court judge to the effect that "a custodial sentence is inevitable". That judge heard several days of evidence at trial. It is right to mention that neither the claimant nor any of the co-defendants themselves gave evidence. As I understand it, the claimant was a perfectly well behaved defendant in the dock who, apart from pleading not guilty, said and did absolutely nothing during the course of his trial which could impact upon bail. To that extent, the judge was and is in no different position than I am in today. But nevertheless, he heard a great deal of evidence in this case, and clearly has a far, far better feel for the underlying gravity of the offending than I could possibly have.

As I have already said, however, even the inevitability of a custodial sentence is not itself an exception to the right to bail, unless it justifies a court being satisfied that there are substantial grounds for believing that the defendant would fail to surrender to custody. I repeat that this claimant is only aged 17. He has been on conditional bail throughout. There is no history or record of his failure punctually to attend any hearing, nor his trial. Further, Mr Blake-James has offered today strengthened conditions as to bail. The sort of conditions he now offers are the sort of conditions that he might well have been able to discuss with the judge, in the Crown Court, if he had been given any opportunity to do so. In summary (but only summary) the proposed strengthened conditions are that the claimant must not go to Waltham Forest Magistrates' Court; he must not contact any of the co-defendants (whether or not they have now been acquitted); he continues under home curfew with a doorstep condition, and that is now strengthened with an offer of a condition that he be monitored with an electronic tag. Further, the claimant's father, Mr Mr R, has attended here today and undertaken to me, on affirmation, that he will stand surety in the sum of £500. He forthwith will inform the Snaresbrook Crown Court if the claimant breaches any of the conditions of bail and he will personally drive the claimant to the Crown Court on 9th January 2012 and ensure his timely attendance for sentence. He has said on affirmation that there is a family of five living at their home, namely himself, his wife, the claimant, an elder daughter and a younger son.

It should have been relevant for the judge also to bear in mind that, because of the inter position of Christmas and the New Year, the delay between conviction and sentence, instead of being a customary 4 weeks, would be in excess of six-and-a-half weeks; that the claimant is still only recently 17; and, although a technical point, that in the case of a child, a period of time remanded in custody, in these circumstances, does not automatically count towards sentence.

When all these facts are put together, including the strengthened conditions of bail which are offered, I have reached a conclusion that no judge, acting reasonably, and properly directing himself with regard to the Bail Act, and properly exercising a discretion with regard to bail, could refuse bail subject to the strengthened conditions. It seems to me, therefore, that it is pointless to remit this matter for reconsideration in the Crown Court because, on my assessment, the judge must inevitably reach the same conclusion that I have reached.

So for those reasons, and stressing how exceptional this course is, and now should be, I propose not only to grant permission to apply for judicial review and to allow the claim for judicial review and to quash the existing decision of the Crown Court, made on 24th November 2011. I go further and positively order that bail must forthwith be granted to the claimant upon the conditions in the schedule to my order which will be the strengthened conditions offered by Mr Blake-James.

Are there any other matters with which I need to deal?

MR BLAKE-JAMES: My Lord, there are two matters from my point of view. From a practical point of view, there is a still in force, I understand, an anonymity order in relation to R.

MR JUSTICE HOLMAN: I am not inclined to make that order in relation to this hearing. He is 17. The trial was in public, I think decisions of this kind should be in public. There does not seem to be any press here, but I am not going to make the anonymity order.

MR BLAKE-JAMES: So be it.

And my Lord--

MR JUSTICE HOLMAN: In relation to this hearing.

MR BLAKE-JAMES: In relation to this hearing, I understand.

My Lord the other matter was that the representation in relation to public funding, I understand I need to ask for a detailed assessment. We have public funding but it needs a detailed assessment.

MR JUSTICE HOLMAN: You can have whatever you require and as you are actually going to type up the order, you can type in an appropriate form of words.

MR BLAKE-JAMES: I am most grateful.

MR JUSTICE HOLMAN: Is there anything else from your perspective Mr Blake-James?

MR BLAKE-JAMES: No thank you my Lord.

MR JUSTICE HOLMAN: Yours Mr Hadley?

MR HADLEY: My Lord, simply to add into the order itself that the monitoring be arranged by the Crown Court at Snaresbrook.

MR JUSTICE HOLMAN: I have written it in and this is all going to be typed up as part of the schedule to the order, not just a scrappy piece of paper. So Mr Blake-James is going to type that all up, but it clearly says "monitored with electronic tag, under arrangements to be made by Snaresbrook Crown Court."

MR HADLEY: Thank you my Lord.

MR JUSTICE HOLMAN: Normally, on a substantive judicial review, which this has become, there is a shorthand writer present and judgments are automatically transcribed. There is no shorthand writer because I suppose it was initially listed as a permission hearing, but every word that has been said will have been recorded and at the moment I think the judgment should be transcribed and should be available, among others, to the circuit judge, as a matter of respect, so he knows the reasons for the decision I have reached. So it ought to happen automatically, but I am going to add, since there is not in fact a shorthand writer here, a transcript must be made by the court of the judgment given today as soon as practicable, and a copy sent to, among others, the Snaresbrook Crown Court for the information of His Honour Judge Laverty.

Could you, Mr Blake-James, ensure that happens? I would like the Associate to trigger that at once. If there was a shorthand writer I could discuss with the shorthand writer when he or she would produce it, but I would like it to be triggered at once, but will you chase it? It will have to be corrected by me in the ordinary way but, at any rate, absolutely no later than 9th January. As a matter of respect for the judge, he ought to be able to see the reasons.

MR BLAKE-JAMES: I respectfully agree with the fact that the judge should see.

MR JUSTICE HOLMAN: If he does not see the reasons he may be dismayed because he will say: what is all this going off to the High Court and so on? I do not want you, as it were, to suffer some opprobrium for all that. It is important you should have the judgment available and preferably he sees it long before that. So can I leave it with you to chase. Is there anything else?

Thank you very much Mr R; I am very grateful to you, and your son should be as well. Thank you.