Scott, R. v [2007] EWCA Crim 2757

Case No 200701502/B3[2007] EWCA Crim 2757
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 15th October 2007
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE GIBBS
HIS HONOUR JUDGE WIDE QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
CASIM SCOTT
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr N Rudolf appeared for AppellantMiss G Ong appeared for Crown
J U D G M E N T

LORD JUSTICE TOULSON:

The

[1]appellant arrived at court over an half-an-hour late for surrendering to custody. The reason he was late was that he had overslept.[2]On those simple facts the questions of law raised by this appeal are whether he was guilty of an offence under section 6 of the Bail Act 1976 and whether the judge was wrong in requiring that the matter be put to him.[3]The appellant had been charged with a firearm offence and three drug offences. He had been committed on bail to appear at Snaresbrook Crown Court at 10.00 am on 29th January 2007. The matter was listed for a plea and case management hearing.[4]The case was called on at 10.15 but the appellant was not there. For practical reasons the case was transferred to the list of another judge, His Honour Zeidman QC. When the matter was called on before him, there was still no sign of the appellant. The judge was on the point of issuing a bench warrant when the appellant walked in. The judge put the case back until later in the morning and refused bail in the meantime.[5]When the case came back before him it was argued on the appellant's behalf that half-an-hour's late was a de minimis failure to comply with the conditions of his bail and that no Bail Act offence should be put to him. The judge rejected that argument. The Bail Act offence was then put to the appellant and he pleaded guilty. He also pleaded guilty to the other offences with which he was charged. He was remanded on conditional bail until sentence. As a matter of record, when he appeared for sentence he received a community penalty for the substantive offences and no separate penalty in respect of the Bail Act offence. The reason why the appellant is concerned to challenge the judge's decision to put the matter to him was that he now has, on his record, a conviction for failure to surrender, albeit that the record will also show that no penalty was imposed.[6]That is the background. The first issue is whether the appellant had a defence to the charge of failing to surrender. That involves a question of construction. Section 6(1) of the Bail Act 1976 provides:
"If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody, he shall be guilty of an offence."
The expression "surrender to custody" is defined in section 2(2) as meaning "surrendering himself into the custody of the court ... at the time and place for the time being appointed for him to do so."[7]The question of construction is whether those words are to be interpreted as meaning literally 'at the appointed time' or whether there is some flexibility to be implied so that the words should be interpreted as meaning "at or about the appointed time" and, if so, what is the permitted margin.[8]In the 2007 edition of Archbold the following note appears at paragraph 3-30:
"Although 'surrender to custody' means surrender 'at the time and place for the time being appointed for him to do so' (see s 2(2))..., it appears that the de minimis principle should be applied if a defendant is only marginally late. In R v Gateshead Justice ex parte Usher [1981] Crim LR 491 DC, it was held that being seven minutes late did not constitute the offence..."
The editorial note adds "sed quaere, if this occurred more than once (let alone deliberately) without excuse."[9]Mr Rudolf, on behalf of the appellant, relied on that passage in his argument before the judge. We do not have a full transcript of the judgment in Ex parte Usher, and the report in the Crim LR is brief. It reads as follows:
"The applicants, with others, were bailed by police to appear on August 15, 1980 before justices for an offence under section 25 of the Theft Act 1968. The applicants did not appear at court at the appointed time so warrants were issued. When the applicants arrived they were seven minutes late but the warrants were not withdrawn so they were required to attend the police station to be bailed. On September 19 the justices' clerk put a charge to the applicants for absconding while on bail, contrary to section 6 of the Bail Act 1976. The desire to enter a not guilty plea was refused and the proceedings adjourned to October 24. On that day the clerk opened with the charge and then entered the witness box and gave evidence that the applicants had not been present on August 15, he then returned to his seat and conducted legal argument with the applicants. The justices convicted the applicants and they were fined."
[10]On an application to the Division Court for an order of certiorari to quash the justices' order, it was held as follows:
"Held, allowing the applications, that section 6 made it an offence to fail without reasonable cause to surrender to custody, and that a delay of seven minutes could not be said to amount to such an offence; that section 1 of the Magistrates' Courts Rules 1968 provided which persons may lay an information and that did not include justices' clerks, to do so would mean that the clerk became the prosecutor which was wrong. Accordingly, because of these and other irregularities the convictions would be quashed."
[11]The court seems therefore to have been influenced in that case by a combination of factors. For that reason, and because we do not have a full transcript, we consider, with respect, that it is not a very satisfactorily authority and should not be taken as establishing any general principle.[12]Mr Rudolf properly drew to our attention this morning a brief report of a decision of this Court in the case of R v Jordan (4th October 1988) in which it was held that a defendant who arrived 20 minutes late could not be said to be de minimis in answer to a charge under section 6 of the Bail Act 1976.[13]Looking at the matter as one of statutory construction, in our view, the proper construction of the Act is that surrender to custody must mean, as the Act provides, "at the appointed time and place" and does not admit by any permissible process of statutory interpretation some additional gloss to allow some unidentified further margin.[14]It was submitted by Mr Rudolf that there is a general principle of the criminal law, which can be described as a de minimis principle, so that where a statute regulates behaviour by reference to a limit whether in time or amount, a minor transgression would afford a defence in law. On this argument, the haulier who uses on the road a lorry which is overladden by only a small amount would have a defence in law to a charge of breach of a traffic regulation governing the maximum permitted loading of vehicles; a person who exceeded the speed limit by only a small amount would have a defence in law to the charge of speeding; a person who drove with only a small amount of excess of alcohol in his blood would have defence in law to a drink driving charge, and so on. Unsurprisingly Mr Rudolf was not able to cite any authority to support such a broad submission, and we reject it. If the proper interpretation of section 6 of the Bail Act is as we consider it to be, it follows that the mere fact that a defendant is only slightly late cannot afford him a defence.[15]There was, however, a second stage to the appellant's argument. It does not follow that because a defendant is in breach of section 6 of the Bail Act, the court must necessarily put the offence to him; the court plainly has a discretion. It was submitted that it is a reviewable discretion and the exercise of that discretion by the judge in this case was Wednesbury unreasonable. The judge gave these reasons for requiring the matter to be put to the appellant and for distinguishing ex parte Usher:
"Two points need to be made. First of all, half an hour is considerably longer than seven minutes and, secondly, times have moved on since 1981. There are far more reasons now to apply case management to criminal proceedings. We have criminal procedure rules, the whole atmosphere has changed and for a defendant once granted bail not to turn up on time is a serious matter. He was granted bail on the footing that he would be here. What sentence is justified if he were to plead guilty or to be found guilty is an entirely different matter and I will deal with that in a proper way, but there is a real public interest in putting these matters when defendants do not turn up on time so that, for example, it is on their record so that a future court when deciding whether to grant bail has an opportunity of taking into account the fact that on a previous occasion he was late. That is a relevant circumstance and if it is not on his record, if the matter has not be put to him, it may well be a court in the future would have no knowledge as to his previous bail history."
We are prepared for the sake of argument to accept the possibility that there could be circumstances where a defendant's late arrival at court was so truly marginal that it would be Wednesbury unreasonable to pursue it but it would be a rare case. In this case the judge cannot, in our view, possibly be considered to have acted unreasonably, let alone in the Wednesbury sense, in the view that he took.[16]The Practice Direction on failure to surrender to bail [2004] 1 WLR 589 states as follows:
"The failure of the defendants to comply with the terms of their bail by not surrendering can undermine the administration of justice. It can disrupt proceedings. The resulting delays impact on victims, witnesses and other court users and also waste costs. A defendant's failure to surrender affects not only the case with which he is concerned, but also the courts' ability to administer justice more generally by damaging the confidence of victims, witnesses and the public in effectiveness of the court system and the judiciary. It is, therefore, most important that defendants who are granted bail appreciate the significance of the obligation to surrender to custody in accordance with the terms of their bail and that courts take appropriate action if they fail to do so."
Even if a delay is small it can still cause inconvenience and waste of time. If a culture of lateness is tolerated the results can be cumulative and bad for the administration of justice. If the message given to this appellant had been that being half-an-hour late did not really matter, it would have been the wrong message to him and to other people.[17]Mr Rudolf has put before us a number of points which were frankly mitigation points. They were factors which no doubt led to the decision not to impose a penalty on him. They did not afford any good reason why the judge could be said to have acted unreasonably in requiring a charge to be put. It was submitted that it was disproportionate and draconian that it should now be on his record that he failed to surrender at the appointed time. Why so? It is a matter of fact he did fail to attend at the appointed time. It was submitted that this could have an unduly harsh effect in the future because another court might refuse him bail. If the message received by defendants is that a failure to answer to their bail on time may have an adverse effect on obtaining bail in future, we cannot see this as a cause for complaint. In our judgment this is an appeal with no merit at all; it is dismissed.[18]MR RUDOLF: May I address just one point because the judgment has altered significantly, in one sense, the law, because effectively you have overturned Usher, or what people thought Usher at least meant. I have not discussed this with my learned friend, it has occurred to me now. Would you be prepared to certify to their Lordships' House a question based upon the application of the de minimus principle, bearing in mind, as your Lordship pointed out, how many statutes with limbs and constraints that create offences there are, so that this can be considered, and I have formulated something. It simply says:
"Can the de minimus principle afford a defence to the charge of section 6(1) of the Bail Act 1976?"

LORD JUSTICE TOULSON: For my part alone, I would be wholly unwilling to certify a question in such terms, it would be to invite their Lordships' House to consider writing an essay on the criminal law.

[20]MR RUDOLF: So be it.

LORD JUSTICE TOULSON: If you wish this Court to consider some more merrily formulated question, we will consider it but I am not encouraging you to do so.

[22]MR RUDOLF: Thank you. (The Bench Conferred)

LORD JUSTICE TOULSON: We are not giving you encouragement, but we think that the fair and appropriate thing is that you should have an opportunity to consider what you really want to say; it is not easy drafting when on your feet. If you want us to consider certifying some question of importance, it will be for you I think to formulate it in writing, send it to us and we will deal with the matter on paper.

[24]MR RUDOLF: Certainly, thank you.

Cited in 1 later judgment