Galliano, R (on the application of) v Crown Court At Manchester Minshull Street [2005] EWHC 1125 (Admin)

Case No CO/2927/2005[2005] EWHC 1125 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 20th May 2005
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF GALLIANOClaimant-v-
Between
THE CROWN COURT AT MANCHESTER MINSHULL STREETDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR I A SHEIKH (instructed by Tuckers, Manchester) appeared for CLAIMANT for THE DEFENDANT did not attend and was not represented
J U D G M E N T
[1]MR JUSTICE COLLINS: Following permission granted by Wilkie J, this is a claim for judicial review of a decision by His Honour Judge Lever sitting at the Crown Court at Minshull Street in Manchester to refuse bail to the claimant.[2]The circumstances briefly are these. The claimant appeared before the Crown Court and was sentenced to a combination order involving 40 hours' community service and 12 months' rehabilitation. He received that sentence for a singularly unpleasant offence of theft. He and a co-defendant had obtained a substantial sum dishonestly from an elderly and vulnerable man. The claimant is someone who has a number of previous convictions. He was perhaps somewhat fortunate because he was given a non-custodial sentence, whereas his co-defendant was sentenced to a term of imprisonment for 16 months.[3]The learned judge when sentencing had before him a report which indicated that he was a heavy drinker, but did not suggest that he had an alcohol problem as such. However, he clearly does, because, having been sentenced on 14th March, on the 21st, some seven days later, he attended for his first appointment but he was drunk. As a result he could not carry out the work that he should have carried out. Thus he was in breach of the terms of the order.[4]So it was that he was brought back to the court and appeared on 29th April. He admitted the breach. The learned judge indicated that he proposed to remand the matter for four weeks to enable further reports to be obtained so that he could assess the extent of the claimant's drink problem and decide whether, notwithstanding the breach, he might be able to avoid imposing a custodial sentence. As the learned judge made plain, this was a case which was well past the custody threshold. There can be no dispute about that.[5]What was said on behalf of the probation service was that the claimant had not told the whole truth to the individual who prepared the original report. He had not been totally honest about his level of alcohol consumption when he had been interviewed for the pre-sentence report. He was alcohol dependent and was unable to leave home without having consumed at least two cans of beer. That created safety risks for administering community punishment. The request was that there should be a resentencing. What the service were effectively asking was for the order to be revoked and for a longer rehabilitation order, possibly with a condition of attendance at Salford Alcohol Services, to be imposed.[6]Obviously the learned judge had to consider whether, in all the circumstances, a custodial sentence became inevitable. The learned judge's view was that he had been misled, because although there was reference to drink in the pre-sentence there was no indication of the extent of the problem.[7]Initially the learned judge, having pointed out that he had warned the claimant as to what would happen if he breached the order, indicated the adjournment until 27th May in order to get an addendum to the report and said that in the meantime he would be in custody. Counsel then appearing for him indicated that he wanted to make an application for bail. The learned judge permitted him, very properly and rightly, to do so. He made the point, as has been made by Mr Shiekh this afternoon, that if one looks at the record of the proceedings in question the claimant had been granted unconditional bail throughout and had always attended. Furthermore, when he had been summoned to appear before the Crown Court in relation to the breach he had turned up and there was no question of his having sought to abscond, or to have done anything that amounted to an offence.[8]Having heard the submissions from counsel, the learned

judge said this:

"Mr Keogh, in the very finest traditions of advocacy, has said everything that can possibly be said, but it is a fact that four out of your last five previous convictions were offences committed whilst on bail, it is a fact that I warned you that, if you failed to obey my order, you would be liable to custody and my order stands and the facts that I find are that there is a substantial risk that you might commit further offences whilst on bail ..."
[9]He then went on to say that, when he reappeared on 27th May, it might that he would have room to manoeuvre and pass another sort of penalty but that would be considered in due course. He would then take into account the fact that the claimant had spent four weeks in custody.[10]The submission made is that there was no basis for believing that the claimant might commit further offences whilst on bail and that that was an irrational reason for refusing bail. As Mr Sheikh rightly points out, the presumption remained that bail should be granted unless there was a good reason not to.[11]He can only succeed on this claim if he persuades me that the decision made by the learned judge was one which fell outside the bounds of what could be regarded as reasonable. So one is in the realm of irrationality and it is clear that nothing short of that will entitle me to interfere. That is because Parliament has decided that the right to come to the High Court to seek bail should be abolished, and so the normal court of last resort in questions of bail is the Crown Court. So it is that this court will be reluctant to entertain claims for judicial review of a failure to grant bail and will only do so if satisfied that the decision of the Crown Court judge was an irrational one. There was no question in this case of any problems created by section 29 of the Supreme Court Act 1981 applying, since the matters with which the learned judge was dealing were not in relation to trial on indictment.[12]The claimant must have appreciated that the likely outcome of his appearance for resentencing would be custody. He was given a period of four weeks while further enquiries were made, but equally it is difficult to conceive that he would not be at least aware of the high likelihood that custody would be the result. In those circumstances, he clearly might well feel that he had little to lose if he needed, for example, to have something to take it for himself. He had a record of committing offences on bail, as the learned judge pointed out, and in the changed circumstances when he had been in breach of a merciful order made by the judge in sentencing, he might well think that he could not hope for the same mercy again.[13]Equally, as it seems to me, the learned judge would have been entitled to have concerns that he might abscond for the very same reason. He did not rely on that as a separate ground for refusing bail, but judicial review is a discretionary remedy and if, in all the circumstances, for whatever reason the decision made was one which was a proper decision, then this court would not interfere.[14]In all the circumstances, I take the view that it cannot conceivably be said that the learned judge's decision was one which was outside the bounds of what was reasonable. Nor can it be said that the reason that he gave, namely the fear of commission of offences, was itself irrational. In those circumstances, this claim is dismissed.[15]MR SHIEKH: My Lord, the claimant is legally aided.[16]MR JUSTICE COLLINS: Yes. This presumably is a criminal --[17]MR SHEIKH: It is under a civil legal aid order.[18]MR JUSTICE COLLINS: You have civil legal aid order, do you? In that case you can have the usual order, the detailed assessment order.[19]MR SHEIKH: I am grateful.[20]MR JUSTICE COLLINS: That is on condition that your solicitors file the necessary certificate within 14 days. I gather it is not on file yet. That is the usual order we make.[21]MR SHEIKH: Thank you.