W & Ors v Crown Court at Croydon

SIR PETER LANE: This is an application for permission to judicially review the decision of HHJ Hyams-Parish on 18 November 2024, sitting at Croydon Crown Court, when he refused to grant bail to the four claimants. If permission to bring judicial review is granted, the court is to proceed to determine the judicial review. This is because, on 2 December 2024, Freedman J ordered a rolled-up hearing. He also made an order for expedition.

Before going any further, it is necessary to make reference to Article 5 of the ECHR, which so far as material reads as follows:

Bail is governed by the Bail Act 1976. In particular, a person charged with a criminal offence is entitled to be admitted to bail unless the court is satisfied that an exception to the right applies, such that even conditions cannot address them: see sections 4 and 5 in schedule 1.

The test that the court is required to meet in determining whether an exception to the right of bail exists is whether "there are substantial grounds for believing that" a relevant ground exists. The grounds are failing to surrender to custody, committing further offences, interfering with witnesses or obstructing the course of justice. There is a requirement to give reasons for a decision to refuse to grant bail or impose conditions: see section 5.

While the court must consider whether a person remanded in custody should be granted bail at every hearing when they appear, the right to advance arguments as to fact and law is limited to the first such consideration, unless the court is satisfied there has been a material change in circumstances: see The Queen v Dover and East Kent Justices, ex parte Dean [1992] Crim LR 33.

I turn to the background of this case. In so doing, I draw upon material from the interested party's detailed grounds of defence.

IK was born in June 2005. She suffers from epilepsy and has learning and communication disabilities. At the material time, she had a boyfriend, called RA for these purposes. In the autumn of 2023, IK reported to her college mentor that she was having problems with her family at home and that her brothers had been telling her that she need not go to college any longer as she was going to be married in Pakistan. IK appeared to be fearful of the family and of being assaulted by her brothers. She told the college that her family did not know she had a boyfriend. The college put in place a policy that her brothers should only be told about her academic progress rather than about any other aspects of her life. IK's mentor also noted at that time that she was fearful of her family and of being assaulted by her brothers. In early 2023, IK used the college to assist in obtaining her passport for entering a refuge. In the event, she did not do so.

In late March 2024, the prosecution say that IK again sought help from her college, telling a member of staff that she was worried because her family had booked flights to Pakistan on 3 April 2024 and her brothers had told her that she would be marrying her cousin. On 28 March, IK arranged to enter a refuge. She took her epilepsy medication with her and did not reach the refuge in time. With the help of her college again, she obtained a room for the night at a particular hotel in Croydon. Her boyfriend of three years took her there and, when she was settled into her room, he left her.

In the early hours of the morning of 29 March, it is said there was a banging on her door. IK called her boyfriend and put him on Facetime, so he could see what was happening. When she opened the door, she saw three of her four brothers and her sister-in-law outside her hotel door. They forced her out of the room. CCTV from the hotel is said to show some of what happened. She was forced against her will to leave the hotel, put into a car and taken back to the family home.

In the family home, her phone was examined and her brothers are said to have repeatedly called her a "whore" for having a boyfriend, bringing shame and unhappiness to her mother. She was assaulted by W, X and Z, one of whom was using, it is said, a screwdriver as a weapon. Her boyfriend was threatened by her brothers via a mobile telephone that she had. However, IK managed to secrete her phone into the bathroom from where she made a 999 call. The police then attended, brought her to safety and she then explained about what she said had been the attitude and behaviour of her family. She also described being intentionally strangled by X in the summer of 2023.

The defendants were arrested at the property on 29 March. A search there brought to light various chains and knives said to be secreted in a bag. There was also evidence that flights were booked with an airline for IK and other family members to go to Pakistan on 3 April 2024, returning on 29 April.

The claimants were charged with offences in March 2024. The custody time limit (a CTL), which applied to all of the charges, was 3 September 2024. The claimants first appeared in the magistrates' court in April 2024 and bail was refused. They were remanded into custody.

Court extracts record that bail was refused on the grounds that the magistrates were satisfied that W and X would fail to surrender and commit further offences and that Y and Z would commit further offences arising from the seriousness of the case and the strength of the evidence.

At the first hearing at the crown court on 29 April 2024, a trial date of 7 October 2024 was identified as the earliest date available for a trial lasting seven to ten days. All the parties were put on notice that an application to extend the CTLs would be made.

The claimants’ defence statements were served in July 2024. They contained requests for disclosure of full downloads of mobile telephone data. The prosecution, it is said, purported to comply with its disclosure obligations between July and August 2024. Requests were raised at various hearings thereafter and were, in part, said to be dependent on information from the claimants as to access to the devices. On 2 August 2024, an application to extend the CTLs was made and not opposed and the CTLs were extended until 10 October 2024.

Section 28 of the Youth Justice and Criminal Evidence Act 1999 was then used to pre-record the cross-examination of IK. That took place on 19 September 2024, with a closed public gallery. It appears that by this point IK was under the protection of the police in a place of safety.

A hearing was listed for 2 October 2024 for all parties to confirm that the case was ready for trial. The certificate of trial readiness was served on 6 October 2024. No applications were made pursuant to section 8 of the Criminal Procedure and Investigations Act 1996 seeking an order that telephone data be disclosed.

The trial began on 7 October 2024. A jury was sworn and the claimants put in their charge. The case was opened. On 8 October, however, the jury was discharged for reasons connected to the jury, not the parties. A second jury was then empanelled and sworn on the same day. The claimants were put in their charge. The evidence of IK was led.

On 8 and 9 October 2024, complaints about late disclosure became an application by the claimants to discharge the jury. The interested party opposed the application on the basis that the data was accessible. It could be reviewed within the trial window with no prejudice to the claimants' fair trial rights. On 10 October 2024, the application was, however, granted. The trial was refixed for 14 July 2025, the claimants' trial counsel not being available on the date that had been offered in March 2025.

On 23 and 24 October 2024, the claimants, W and Y, lodged detailed written applications for bail, relying on the fact that the trial had been aborted and refixed as a change of circumstances. The bail hearing listed on 25 October 2024 was vacated by the court with an indication that the trial judge would be giving directions. On 1 November 2024, Y served an amended application. On 15 November, X and Z served detailed written applications. All four applications were listed and heard together on 18 November 2024. The prosecution opposed the applications on the basis that all three exceptions to the bail applied to all four claimants. In argument, the claimants relied, amongst other things, upon Article 5 of the ECHR. The application was refused.

I have today seen a transcript of the hearing before the judge. After receiving oral submissions on behalf of the claimants, this is what the judge said:

The ability to challenge a bail decision in the crown court is limited. Until April 2004, the High Court held a general inherent power, which was usually exercised by a judge in chambers, to grant bail to a person denied bail in the magistrates' court or the crown court. That power, however, was abolished by section 17 of the Criminal Justice Act 2003. Since then, there is no avenue of appeal against a refusal to grant bail, save for a High Court jurisdiction to entertain challenges to irrational decisions through judicial review: see section 17 of the Criminal Justice Act 2003. The jurisdiction of the High Court is, however, limited by section 29(3) of the Senior Courts Act 1981, which excludes judicial review of the crown court "in matters relating to trial on indictment".

The ambit of section 29(3) has been explored in a number of cases. In The Queen v Manchester Crown Court and others, ex p DPP [1994] 98 Crim App R 461, Lord Browne-Wilkinson in the House of Lords explained that the policy behind the exclusionary rule was the need to avoid delay in criminal trials. There was no test but, rather, “pointers”, including where the decision sought to be reviewed was not one arising in the issue between the Crown and the defendant formulated by the indictment.

In M v Isleworth Crown Court [2005] EWHC 363 (Admin), Maurice Kay LJ, giving the judgment of the Divisional Court, held that the test, where judicial review is not excluded by section 29(3), "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 of the Crown Court who have every day experience and feel for bail applications".

Importantly, however, Maurice Kay LJ expressly rejected the suggestion that judicial review was appropriate "only in a rare case where a judge of the Crown Court has plainly gone wrong in an extreme way": see paragraph 12.

In The Queen (on the application of Uddin) v Leeds Crown Court [2013] EWHC 2752 (Admin), the deputy judge said this at paragraphs 31 to 34:

I respectfully agree with the substance of what the deputy judge said in these paragraphs. In broad terms, once the trial on indictment has started, then section 29(3) bites. But in the present case, the trial which had been started was aborted. There is, therefore, no current trial. A trial is fixed for the summer of 2025. It could have started in March 2025, but for the unavailability of defence counsel, but that point is immaterial. The claimants are in the position of seeking bail before a jury has been sworn in respect of next year's trial. I can see nothing in the authorities that compels me to find that, in such a scenario, the jurisdiction of this court is ousted by statute. It is not. References to "an early stage in the proceedings", which are to be found in some of the cases, are beside the point. The question left begging is: which proceedings? The answer is the trial on indictment of the claimants that will begin in 2025.

I have already referred to what Maurice Kay LJ said in the Isleworth case about the nature of a judicial review of a crown court bail application. Mention must also be made of The Queen (on the application of Iqbal) v Canterbury Crown Court [2020] EWHC 452 (Admin), in which the judgment of the Divisional Court was given by Carr J, as she then was. In that case, the claimant was arrested after being charged with drug importation and applied for bail to the crown court. At paragraph 10, Carr J described what happened next:

The claimant in Iqbal put his case in the way recorded by Carr J at paragraphs 20 to 24:

Beginning at paragraph 29, Carr J considered the relationship between ECHR Article 5 and the Bail Act. Paragraphs 29 to 33 and paragraph 36 read as follows:

Carr J then addressed the alleged inadequacy of reasons at paragraphs 38 to 40:

Both in writing and in his oral submissions, Mr Forde was at pains to point to a number of principles articulated in Strasbourg jurisprudence regarding Article 5. In Creanga v Romania (2013) 56 EHRR 11 the court stressed the deprivation of liberty could be arbitrary and, therefore, prohibited by Article 5, even if it occurred by operation of national law. In Boicenco v Moldova (App no 41088/05) ECHR 11 July 2006 and Khudoroyov v. Russia (App no 5829/04) ECHR 31 May 2006, the arguments for and against release were said by the court not to be general and abstract but had to be formulated on the applicant's personal circumstances. In Scott v Spain (1997) 24 EHRR 391, the court said the complexity and special characteristics of the investigation were to be considered in ascertaining whether the authorities are displayed, in the court's words, "special diligence".

In common with Ms Schutzer-Weissmann, who appears for the interested party, I read parts at least of the claimant's statement of facts and grounds as containing the proposition that the ending of CTL protection, which occurred when the subsequently aborted trial began in this case, meant that the crown court's duty under the Bail Act was altered so as to require the court to approach bail exactly as it would have done if CTL protection was still in place. Indeed, that proposition seems to me to be explicit in paragraph 53 of the statement of facts and grounds.

In his oral submissions, however, Mr Forde appeared to resile from that stance. In my view, he was correct to do so. The Bail Act remains the sole mechanism by which applications for bail must be assessed. There is nothing in the Strasbourg jurisprudence that requires the Act to be "read down" in the way originally proposed. The principles articulated in the Strasbourg cases cited by Mr Forde are all capable of being given effect through the proper application of the Bail Act, including the need to have regard to relevant considerations; to eschew irrelevant considerations; and to give adequate reasons, bearing in mind that adequacy is a protean term which varies according to the particular circumstances of the case in question.

I agree with the interested party that the judge's decision falls to be assessed according to these public law principles. I should say here that I consider the grounds of claim are drafted so as to encompass a “reasons” challenge.

The November bail applications were made because there had been a change in circumstances. That change was the aborting of the trial and the consequent loss of CTL protection, with a new trial being scheduled to start in some eight months' time. There was also the fact that the complainant had given her evidence and had been cross-examined by defence counsel. That evidence was, in Mr Forde's words, now "locked in".

The claimants had been refused bail by different judges on different dates earlier in 2024. Ms Schutzer-Weissman submitted that the evidence of the complainant's boyfriend had still to be taken and that the issue of interference with witnesses was, therefore, still live, for this if no other reason She also submitted that it was necessary to obtain a transcript of the reasons why the judge had acceded to the defence application to abort the trial.

I acknowledge her first point, but it does not mean that the other matters I mentioned were not relevant considerations with which the judge had to engage. As for the second point, no issue has been taken by the interested party prior to the start of this hearing with the synopsis of the decision to abort the trial, found in paragraph 2 of the statement of facts and grounds, which was compiled from defence counsel's note. In any event, I do not consider that it matters for present purposes exactly why the defence application succeeded. The important point is that it did, with the consequences I have described.

I do not accept that the fact the judge said he had considered the written and oral submissions of the claimants shows that he had had regard to the very matters that were said to constitute the change in circumstances. In my view, he did not. They were material considerations. The judge therefore needed to have regard to them. What weight he might place on them would have been a matter for him.

In any event, even if I am wrong about this, I have firmly concluded that there is an absence of adequate reasons in this case. The fact that the judge was well-versed in what had led to the applications being made at this time in no way meant that he was absolved from the ordinary public law requirement of explaining why the claimants had been unsuccessful. The conclusion that there were reasonable grounds for believing that the claimants would fail to surrender, interfere with witnesses and commit further offences were just that; they were conclusions, devoid of any proper explanation as to how they had been reached.

Furthermore, the claimants had put different cases for bail by reference to their particular personal circumstances, but the extremely short ruling did not address these at all.

In short, the reader is left in doubt of what the judge made of the claimant's submissions.

Returning to paragraph 39 of Iqbal, I agree with Mr Forde that the present case is not comparable with the impugned decision in that case. The present case is much closer to the legally deficient decision in Rojas.

I have taken account of Ms Schutzer-Weissmann's submission that it would be possible to go back to the judge who made the decision on this case and seek further reasons from him. Mr Forde tells me, in his experience of some three decades at the criminal bar, he has never known that to occur in the context of a bail application. Whilst it may theoretically be possible, I well bear in mind the problems that this court and higher courts can have with ex post facto reasoning, I therefore do not consider that this theoretical possibility provides an appropriate solution.

The claimants succeed on public law grounds, having given due allowance to the expertise of the judge in this case. My decision involves no dilution of the Bail Act process: it stands supreme.

In the circumstances, it is unnecessary for me to make a finding on the challenge brought by reference to an alleged delay in arranging for the bail applications to be heard. In any event, Mr Forde did not pursue that with any vigour in his submissions.

I grant permission to bring judicial review. I grant the judicial review. I shall order that the decision of 18 November 2024 in respect of each of the claimants is quashed. This means that their applications for bail remain outstanding before Croydon Crown Court. The matter is, therefore, remitted to that court. I emphasise this means that the claimants remain on remand for the time being. I shall invite counsel to agree, if possible, an order the gives effect to this judgment.

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