Culley, R (on the application of) v Crown Court Sitting At Dorchester [2007] EWHC 109 (Admin)

Case No CO/105/2007[2007] EWHC 109 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 12th January 2007
Strand
London WC2
B E F O R E:
MR JUSTICE FORBES
Between
THE QUEEN ON THE APPLICATION OF ALASTAIR GEORGE CULLEYClaimant-v-
Between
THE CROWN COURT SITTING AT DORCHESTERDefendant
(Computer-Aided Transcript of the Palantype Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR DAVID LYONS (instructed by Messrs Ian F Brazier Solicitors, Dorchester DT2 9YH) appeared for ClaimantMR M TOMLINSON (instructed by Crown Prosecution Service) appeared for Interested Party for The Defendant did not appear and was not represented
J U D G M E N T
[1]MR JUSTICE FORBES: This is an application for judicial review of the decision of His Honour Judge Beashel, made on 25th August 2006, whereby he remanded the claimant in custody pending his trial. When the matter was considered on paper by Underhill J, he directed that the application for permission and for substantive relief (if the court so decided) was to be listed for hearing today, with notice of the hearing to be given to the defendant and interested parties. Having considered the submissions in this matter, I am satisfied that an extension of time and permission to apply should be granted.[2]My reasons for granting the necessary extension of time, can be stated very shortly. The extension of time required is relatively modest and, although the reasons for the delay are not wholly persuasive, this is a case where, having considered the merits of the substantive application, I am satisfied that it would be unjust to deny the claimant appropriate relief for reasons of delay. The case raises an interesting and important point which I am satisfied ought to be dealt with on a substantive application.[3]The brief facts are these. On 17th September 2005 an incident occurred which gave rise to the original offence charged against this claimant, namely one of violent disorder. On 17th October 2005, the claimant was arrested and remanded to the magistrates' court. On 18th October 2005, the claimant was granted bail with various conditions, including a condition of residence and the need to observe a curfew between certain stipulated hours.[4]On 13th October 2005, the committal proceedings were adjourned until 20th December 2005. The claimant's bail conditions were varied in various ways to which it is not necessary to refer. On 20th December 2005, the whole of the matter was transferred to the Dorchester Crown Court for trial, with bail as before. On 23rd December 2005, the claimant was arrested in respect of an allegation of witness intimidation. He was charged and given police bail on condition that he did not enter Dorset except for court appearances. On 28th December 2005, there was a plea and case management hearing at Dorchester Crown Court, as a result of which, amongst other things, the claimant was once more granted bail, with conditions of residence and curfew. On 21st March 2006, the claimant was re-bailed on the same conditions as 28th December in connection with all the offences in respect of which he was then charged.[5]On 2nd June 2006, the claimant was arrested and brought before the Weymouth Magistrates' Court for breach of his bail conditions, having been found by the police walking home with his partner outside the centre of the town after curfew. As a result of that appearance he was re-bailed on the same conditions as before. He was found to be in possession of a class A drug at the time of his arrest and this became the subject of yet another but separate charge for which he was also granted bail.[6]On 13th and 14th August 2006, the police visited the claimant's address on two separate occasions. On each occasion they knocked at his door after the curfew hour. If the claimant had been observing the conditions of curfew and residence, he should have been in a position to answer the door. However, on both occasions nobody answered the door when the police knocked.[7]On 24th August 2006, the claimant was arrested pursuant to section 7 of the Bail Act 1976 for breach of the conditions of his bail. Initially, he was taken to the Weymouth Magistrates' Court before being taken to the Dorchester Crown Court, where the adjourned plea and case management hearing relating to his trial was to be held that day, although the claimant was not under any specific duty to attend that hearing.[8]The judge who dealt with the adjourned plea and case management hearing was His Honour Judge Beashel. The matter relating to the claimant's alleged breach of bail conditions was therefore referred to him. There was a dispute about whether a "doorstep" condition was one of the conditions of bail. In the event, the judge remanded the claimant in custody overnight to enable him to call evidence about the conditions of bail and whether he was in any way in breach of those conditions.[9]The following day (i.e. 25th August 2006) Judge Beashel heard evidence from the claimant's solicitors with regard to the conditions of bail. He also heard evidence from the police officer. The judge concluded that there had been no "doorstep" condition attached to the claimant's bail, but that his failure to answer the door to the police was evidence from which he could and did conclude that the claimant was in breach of the curfew condition of bail. The judge then remanded the claimant in custody to await his trial. It is that decision which is the subject matter of the challenge in these proceedings.[10]Although the precise timing of these matters is not available to me today, it is accepted by Mr Tomlinson, who appears on behalf of the Crown Prosecution Service, that more than 24 hours elapsed between the time the claimant was arrested on 24th August 2006 and the time Judge Beashel finally completed dealing with the matter on 25th August 2006 (i.e. by making the order remanding the claimant in custody for breach of a condition of bail). The significance of that will become more apparent when I return to the legal principles involved in this matter.[11]The relevant legislative provisions are as follows. Section 7 of the Bail Act 1976 ("the 1976 Act), so far as material, is in the following terms:
"(3) A person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court may be arrested without warrant by a constable— (a) ... (b) if the constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions; ... (4) A person arrested in pursuance of subsection (3) above— (a) shall ... be brought as soon as practicable and in any event within 24 hours after his arrest before a justice of the peace ... (5) A justice of the peace before whom a person is brought under subsection (4) above may, subject to subsection (6) below, if of the opinion that that person— (a) ... (b) has broken ... any condition of his bail remand him in custody ..."
Subsection (6) of section 7 has no application in the circumstances of this case.[12]It is accepted that when Judge Beashel dealt with the matter on both 24th and 25th August 2006 he expressly did so in the capacity and exercising the jurisdiction of a District Judge. In those circumstances, it is common ground that the judge acted perfectly properly, and thus satisfied the statutory requirement of being a justice of the peace before whom it was appropriate to bring the claimant in respect of the alleged breach of bail conditions.[13]The principal point raised by Mr Lyons on behalf of the claimant is that Judge Beashel failed to deal with the matter within the strict 24-hour time limit imposed by the terms of section 7(4) of the 1976 Act. Mr Lyons submitted that when the judge adjourned the matter on 24th August without finally determining it, the matter remained unresolved and that, once the 24-hour time limit came to an end, the judge had no further jurisdiction in which to make any further order. It was Mr Lyons' submission, therefore, that when the judge purported to hear evidence on the matter on 25th August and decided to remand the claimant in custody for breach of a condition of his bail, he was acting ultra vires and thus without jurisdiction.[14]In support of that submission, Mr Lyons referred to a number of authorities. The first is the case of R v Governor of Glen Parva Young Offender Institution, ex parte G (A Minor) (1998) 2 Cr App R 359. It is necessary only to refer to the following passages from the judgment of Simon Brown LJ (as he then was), as follows:
"Does the prisoner have to be brought within the stipulated time before a justice of the peace, or is it sufficient to bring him to the court cells? There seems to me very little room for argument on this issue. Subsection (4) seems to me plain in its wording and to mean what it says. ... I unhesitatingly conclude, therefore, that the 24-hour provision is absolute and that it requires that the detainee be brought not merely to the court precincts or cells but actually before a justice of a peace, who may, of course, be, indeed is envisaged to be, but a single justice rather than a whole bench."
[15]From that decision it is quite clear that the 24-hour period is absolute. What is not expressly stated is whether it is necessary for the justice of the peace to complete dealing with the matter within the 24-hour period, following a defendant having been brought before him or her within the 24-hour period.[16]Some light is cast on that question in the case of R (Hussain) v Derby Magistrates' Court [2001] EWHC 507 (Admin), [2001] 1 WLR 2454, where it was held that a District Judge had power to start dealing with a person arrested for a suspected breach of bail conditions afresh where the matter had been put back in the list by a first justice of the peace or district judge, provided the defendant was brought before the court within the requisite 24-hour period and the decision was made under section 7(5) that same day. Although the matter is not expressly dealt with in the course of the judgments in that case, it is clear that the thrust of the decision was that the whole matter had to be dealt with within the requisite 24 hours.[17]In my view, the final case to which I was referred deals conclusively with this particular point, namely the decision of this court in R v Liverpool City Justices, ex parte Director of Public Prosecutions [1992] 3 WLR 20. The three questions that were raised by the Director of Public Prosecutions for judicial review in that case were as follows:(1) whether the procedure under section 7(5) of the 1976 Act was a matter which called for a formal hearing by a court consisting of at least two justices;(2) whether the proceedings before a justice required the giving of evidence on oath and cross-examination before the justice might properly form an opinion on the matters set out in section 7(5)(a) and (b); and(3) whether the justice had power to adjourn the proceeding under section 7(5).[18]As to that third question, which is the critical question in the circumstances of the present case, Roch J (as he then was), who gave the first judgment, said this:
"The third and final question is whether the justice had power to adjourn the proceeding before her under section 7(5) of the Bail Act 1976 to the following Monday. In my judgment, she did not. The justice's role in the disposal of the offence with which Mr Bell was charged was at an end. The only reason for Mr Bell being before the justice was that he had been arrested without warrant under section 7(3) of the Act of 1976 and was being brought before her under section 7(4). ... ... it means that the person who has been arrested under section 7(3) of the Act of 1976 by a constable without warrant has the matter resolved one way or the other within 24 hours, or sooner if practicable, subject to the exceptions of Christmas Day, Good Friday and Sundays, and the prosecution, if they wish a remand in custody or the imposition of more stringent conditions, must make sure that they have within that time period sufficient material to place before the justice to enable the justice to form one of the opinions set out in section 7(5)."
[19]As it seems to me, it is thus clearly established that the procedure under section 7(4) and (5) of the Bail Act 1976 is subject to a strict time limit of 24 hours, following the arrest of the defendant in question. It follows that Judge Beashel was required to complete his investigation and decision-making in relation to this matter within that 24-hour period, but he failed to do so. No doubt out of an abundance of caution and out of a wish to ensure that the claimant had every opportunity to place all the material he wished before him, the judge adjourned the matter overnight and, in the event, inadvertently exceeded the 24-hour time limit.[20]I am satisfied that, from the moment 24 hours elapsed after the arrest of the claimant on 24th August, Judge Beashel no longer had any jurisdiction to deal with the matter. It follows that everything he did following the expiration of the 24-hour period was done without any power and is therefore ultra vires and unlawful. The conclusion that he reached was one which he might well have reached the previous day, had the evidence been available and had the matter been concluded on 24th August. As it was, the decision he reached was made outside the 24-hour period and the order was one which he had no power to make. It follows therefore that the order made by the judge on 25th August must be quashed.[21]In those circumstances, it is not really necessary to go on and consider the second ground of challenge which was raised on behalf of the claimant by Mr Lyons, namely that the judge could not properly conclude that the claimant had been in breach of his conditions of bail. As to that aspect of the matter, it seems to me that no criticism can be made of the judge's fact-finding and the way he expressed his conclusions. In my judgment, he was perfectly entitled to conclude that the claimant was not at home when the police called upon him on two occasions, for the reasons that he gave. In those circumstances, he was entitled to conclude that the claimant had been in breach of his curfew condition of bail. However, in view of my conclusions in respect of the principal ground of challenge, it is not necessary to say any more about the second ground other than that I am satisfied that the judge's findings of fact cannot be impugned as either irrational or perverse.[22]Accordingly, for all those reasons, this application succeeds. Is the appropriate order to quash the judge's order?[23]MR LYONS: My Lord, yes, I believe so.

MR JUSTICE FORBES: Is there anything further you need from me?

[25]MR LYONS: My Lord, we do, as your Lordship knows, now have the advantage of public funding. I do not believe I need any orders in respect of costs.[26]MR JUSTICE FORBES: I would not have thought so. If you have got a representation order, that is sufficient I am told. If you have got a legal aid certificate, I assume that the terms of it cover the proceedings which you have just conducted.[27]MR LYONS: Yes, my Lord, they do, thank you very much.

MR JUSTICE FORBES: Are you appearing for this gentleman on Monday next?

[29]MR LYONS: I am.

MR JUSTICE FORBES: You are.

[31]MR LYONS: I will be, your Lordship can rest assured, giving him certain advice as to keeping a very sharp ear out for any police officers who may visit him and making sure that he presents himself at the doorstep, whatever the conditions on paper.[32]MR JUSTICE FORBES: Very well. As to the formalities relating to his release, I suppose for the avoidance of doubt I should say that the bail conditions are to continue to apply i.e. the bail conditions that were current at the time of his arrest.[33]MR LYONS: My Lord, I think that must flow from the remand in custody being a nullity. The position returns to as it was before, and he is well aware of those conditions.

MR JUSTICE FORBES: I do not think anything further needs to be said by me.

[35]MR LYONS: My Lord, no.[36]MR JUSTICE FORBES: No. Thank you both very much.

Cited in 1 later judgment