Ali v Crown Court at Kingston

This is an application for permission to apply for judicial review and, if permission is granted, for the substantive application to follow immediately in the normal way of a rolled up hearing. The challenge is to the decision of His Honour Judge Lodder QC, the Recorder of Kingston, made on 10^th October 2017, to remand the claimant in custody while a psychiatric and a pre-sentence report were obtained for a sentencing hearing fixed for 27^th November 2017.

This decision followed the conviction of the claimant after a trial of arson being reckless as to whether life was endangered contrary to s.1 of the Criminal Damage Act 1971. On 13^th October Mr Justice Julian Knowles ordered the rolled-up hearing for today. It may be the speed with which the hearing has come on that has meant that we have heard only from Mrs Antenen for the claimant and there has been no appearance by the Crown Prosecution Service although they were served. It may also be the reason why we did not receive the transcripts of the hearing before Judge Lodder until after 10.30 a.m. this morning.

A little background is necessary. The offence was committed on 4^th March 2017 when the claimant had four children aged up to seven in the two-bedroom house. She was arrested that same day, charged on 5^th March, and remanded into custody. On 15^th March she was granted bail by Kingston Crown Court subject to various conditions, one of which was a no-contact condition with the children, as well as various restrictions on travel. The claimant is a Somali national. However, the bail conditions were varied in response to the demands of her pregnancy which led to the birth of her fifth child on 5^th August 2017. She did not breach the terms of her bail.

Trial commenced on 2^nd October before Judge Lodder and a jury. The guilty verdict was returned on 9^th October. After the jury returned the verdict of guilty, there was discussion as to the further conduct of the sentencing process. He required a pre-sentence report and a psychiatric report. The verdict came back quite late in the day and the judge expressed concern that the claimant might abscond. He was also concerned to know what social services' view was about the child. The matter was put back until 10^th October. Meanwhile, the claimant was remanded in custody.

On 10^th October, there was a substantial hearing into the application for bail. It involved evidence from two social workers who had care of the claimant's children. Whatever other criticisms Mrs Antenen has of Judge Lodder, there is no doubt that he gave careful consideration to all the evidence she wished to call and the submissions that she wished to make. The challenge contends that the judge, however, decided wrongly that s.4 of the Bail Act should not apply during an adjournment for sentencing reports, that he did not apply the test of whether there was a substantial risk of further offending or absconding, that he failed to address the welfare of the children, in particular, the welfare of both claimant and baby as a result of the fact that she was still breastfeeding the baby.

The first issue which arises, however, which may have come as something of a surprise to Mrs Antenen is whether the court has jurisdiction at all to consider this application for permission to apply for judicial review. Section 29(3) of the Senior Courts Act 1981 provides:

The question therefore is whether the decision of the judge in relation to bail between the verdict of the jury and the sentencing decision was a matter relating to trial on indictment.

In the absence of authority, I would take the view, as a matter of impression and of analysis, that a decision on bail between verdict and sentence was obviously a decision relating to the trial on indictment. Indeed, Mrs Antenen was disposed to take the same view when the question was put to her directly. The decision is very much an integral part of the trial process involving the question of what is to happen between verdict and sentence. It requires the exercise by the trial judge of his judgment pursuant to a statutory power in the Bail Act to reach a decision on whether or not to grant or continue bail. It is not collateral at all. And it is a decision which is bound to be informed by the knowledge which the trial judge has attained of the issues and of the defendant and his or her circumstances during the course of the trial.

The issue is, however, not entirely free from authority. Properly understood, in my judgment, the authorities do not assist Mrs Antenen's case. Her case depended very much on the decision of Holman J in R (on the application of Rojas) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin). If that case is correctly decided, it does at least afford some support to Mrs Antenen's contention that the court does have jurisdiction. The problem for her is that it does not address s.29(3) of the Senior Courts Act. It merely refers to an earlier case, M v Isleworth Crown Court [2005] EWHC 363 (Admin) which does address s.29(3) as well as another jurisdictional issue. It is to that latter case that I shall turn first.

In that case bail had been refused by a circuit judge upon the transfer of the case to the crown court. The bail decision thus came at a very early stage in the proceedings before the crown court. Maurice Kay LJ, with whom Moses J agreed, said at para.7:

The divisional court therefore took the view that because the refusal of bail had been made at an early stage of criminal proceedings, the challenge to the decision by way of judicial review was not caught by the exclusionary provision of s.29(3). However, the court then went on to consider the next stage, which arises only where the exclusionary provision does not apply, and so the court has to consider whether it has jurisdiction in relation to the bail decision by the crown court. The existence of this second jurisdictional decision may not have been fully appreciated in the decision in Rojas. What Maurice Kay LJ said was that he had no doubt that the jurisdiction in relation to bail, once it had been found not to be excluded by s29(3), should be exercised:

That is language which features in the decision in Rojas, along with the references to a robust approach being required.

In para.10 Maurice Kay LJ referred to the prerogative remedies which were the sole means of challenge to a bail decision if jurisdiction existed, as a result of the abolition of the appeal rights. What he said, having referred to the availability of the prerogative remedies in those bail decisions where jurisdiction did exist, s.29(3) notwithstanding, was this:

That sentence is simply referring to the jurisdiction in relation to judicial review that had always existed but had not been used because of the alternative appeal remedy. It might however have been thought that the court was saying that the combination of legislative change and s.29(3) meant that the court now had a new general jurisdiction to review a bail decision by the crown court. No such meaning was intended at all. All it meant was that the underlying judicial review jurisdiction continued after the abolition of the appeal but only to the extent that it was not excluded by the operation of s.29(3). It is possible, in the light of some of the cases we have been shown, or researched, for the purposes of this hearing, that has not been fully appreciated.

I turn then to the decision of Holman J. There is, as I have said, no mention at all of s.29(3) or discussion of the issues which arise. All that he said is this at para.7:

In my judgment, the decision of Holman J simply cannot be regarded as authority for the proposition that s.29(3) does not apply to bail decisions in the crown court. S29(3) clearly does apply. Insofar as Holman J suggests otherwise it is, with great respect, wrong, and in my judgment not a case which can be followed, applying R v Coroner for Greater Manchester [1985] QB 67. It appears that no argument in relation to s.29(3) was addressed to him, and so he did not consider the issue. On that basis, there is no authority which supports the arguments of Mrs Antenen on jurisdiction.

There are a number of other authorities which I should just briefly mention, to be found at the side note to s.29(3) in volume 2 of the White Book. I simply mention for these purposes the analysis of the operation of s29(3) in R v Maidstone Crown Court ex parte Harrow London Borough Council [1999] 3 All ER 542, which brings together many of the important passages from earlier cases including the decisions of the House of Lords in Smalley v Warwick Crown Court [1985] AC 622 and Sampson v Croydon Crown Court [1987] 1 WLR 194. The particular point in the latter case is that the order made by the crown court in relation to costs under a legal aid contribution order was not an appealable order. That did not mean that it became a reviewable order. It was a decision after verdict and a decision which fell within the scope of the exclusionary phrase in s.29(3). There are a number of other cases, to which it is not necessary to refer, but none support the arguments of Mrs Antenen. There may be rare circumstances, and the Maidstone Crown Court case is an illustration of them, where the crown court decision is wholly outside its jurisdiction. That is to say, it is a decision where there is simply no power to make any such order as it has purported to make, and where the decision on judicial review simply confirms that the order has no statutory authority behind it. That, however, is not the situation with which this court is faced. It has not been suggested that it is.

Accordingly, I have come to the view that s.29(3) excludes this application for permission to apply for judicial review and on that ground alone I would refuse permission. I do, however, think it necessary to say a few words about the grounds which have been put forward in the light of the submissions and the transcripts which we have read.

It is quite clear that the suggestion that the judge simply ignored the Bail Act is unfounded. It appears that what Mrs Antenen really being meant was that the judge was concerned with the welfare of the child or children which it is said was not a statutory basis upon which to refuse bail; it was accepted however that the risk of further offences being committed was a basis for refusing bail. Again, it is perfectly clear to me from reading the transcript that the judge was very concerned about the risk posed to the children in the light of the conviction for an offence of reckless arson when four of the children were in the house at the time when she set the fire. This is an issue which he raised with each of the social workers, specifically in the context of the risk to the children. It is clear that the risk he had in mind was whether there would be some repetition of the offence. It is then said, slightly strangely by Mrs Antenen, that the judge gave inadequate attention to welfare of the children. Having come to the view that he was significantly concerned for the safety of the children because of the risk to them created by the offence that had been committed, it is a little odd that he is then criticised for failing to have regard for their well-being. But in itself it is clear that the judge did consider the impact which immediate custody would have on the well-being of the children. He heard all the evidence that the social workers wished to give, and he also considered the breastfeeding of the baby and the pain the mother suffered when unable to breastfeed. It was the last point made to him just before he delivered his judgment. His judgment carefully deals with the issues of welfare and risk.

It is said that he was wrong to refer to custody as being inevitable, but he made clear that he was talking about the nature of the offence because that went to risk of re-offending, and at the end he said that since custody was almost inevitable, there was a risk that she may also abscond. Insofar as the judge, a judge of very considerable experience, failed to adopt a mantra approach to the words “substantial grounds for believing” that further offences would be committed or of absconding, there really is nothing in it.

Having gone through the grounds, I am satisfied that I would have not have granted permission for this case to be pursued, even had I had jurisdiction to do so. The judge was faced with a difficult issue because the mother was breastfeeding a baby and the sentencing problems will no doubt be significant, but face them he did. Having carefully listened to what was being said, there is not the slightest prospect, in my judgment, if the court had had jurisdiction to do so, that it would have found it arguable that there was anything wrong in law with the decision that had been made, even less so applying the sparing and robust test which would have fallen to be applied if the court had had jurisdiction. But for that reason as well I would refuse permission.

I agree with all that my Lord has said in relation to his decisions and his reasons for his decisions, both on the issue of jurisdiction and on the lack of merit of the application, even if there were jurisdiction. I add a few words of my own because of the importance of the jurisdictional issue, and also out of respect to Holman J with whose decision in an earlier case we are disagreeing.

Section 17 of the Criminal Justice Act 2003 abolished the power of the High Court to entertain an application where bail had been refused by a judge of the Crown Court. Section 17(6)(b) said in material part "Nothing in this section affects... any right of a person to apply for a writ of habeas corpus or any other prerogative remedy." It is, in my view, clear that those words merely preserved any right a person may have to apply for a prerogative remedy or, now, for judicial review. They did not create a new freestanding entitlement to apply for judicial review in circumstances in which such an application would otherwise be prevented by the operation of s.29(3) of the Senior Courts Act 1981.

It follows, in my judgment, that when, in the passage which my Lord has cited from the judgment in M v Isleworth Crown Court at para.10, Maurice Kay LJ, having referred to s.17(6)(b) said, "That means that this court now has jurisdiction to review a bail decision by the Crown Court," he meant that the remedy of judicial review is, in principle, available in respect of a bail decision of the Crown Court provided that the remedy is not excluded by s.29(3). In the case of M, the court concluded that the remedy was not so excluded because the bail decision had been made at an early stage of the criminal proceedings.

It may be that a misunderstanding of the sentence which I have just quoted from the judgment of Maurice Kay LJ has in the past led to submissions being made and decisions being given on an incorrect assumption, without a detailed analysis, that there is a general jurisdiction to review a bail decision in the crown court. Perhaps a misunderstanding of that nature explains why it appears from Holman J's judgment in the case of Rojas that the learned judge was not addressed about the application of s.29(3) of the 1981 Act. Be that as it may, any such assumption as I have suggested is mistaken because it overlooks s.29(3). For that reason also I agree with my Lord that the decision in Rojas was wrong.

The meaning of the phrase in section 29(3) of the 1981 Act, "matters relating to trial on indictment," has exercised the courts on a number of occasions, and there may be room for argument as to its application or non-application in certain circumstances. In the present case, however, there can in my judgment be no doubt that a decision refusing bail between the jury's verdict and sentence in the Crown Court is a matter relating to trial on indictment. In the challenged decision, HHJ Lodder QC was concerned to determine the remand status of the claimant during the phase of the trial between the jury's verdict and sentence, and to ensure her attendance at the sentencing hearing which would mark the end of the trial process.

For those reasons and the other reasons given by my Lord, I too am satisfied that there is here no jurisdiction for this court to receive this application for judicial review. Had there been such jurisdiction then I would have agreed with my Lord as to his reasons why the application would inevitably have failed. Accordingly, permission to apply for judicial review is refused.

Although this has been a decision of the court on an application for permission at which only the claimant was represented, it is none the less a decision reached after a consideration of relevant statute and authority by the court, and it seeks to resolve a point which has been the subject of misunderstanding. I give leave for it to be cited in any future case in which a similar issue arises.