Choudhry & Anor v Birmingham Crown Court & Anor [2007] EWHC 2764 (Admin)

CO/1228/2007 and CO/1332/2007

[2007] EWHC 2764 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 26th October 2007

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE RICHARDS

MR JUSTICE GIBBS

Between

CHOUDHRYClaimant

HANSONClaimant

Between

BIRMINGHAM CROWN COURTDefendant

HER MAJESTY'S REVENUE AND CUSTOMSInterested Party

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Mr R D C Howat (instructed by Middleweeks) appeared for First Claimant

Mr D O'Callaghan (instructed by David Phillips & Co) appeared for Second Claimant

Mr J Waddington (instructed by the RCPO) appeared for Interested Party

for The Defendant did not attend and was not represented

J U D G M E N T

[1]MR JUSTICE GIBBS: There are before the court two linked claims. Each seeks to challenge decisions of His Honour Judge Griffith-Jones made on 16th November 2006 in the Crown Court at Birmingham. One claim is brought by Mr Choudhry and one by Mr and Mrs Hanson. All three claimants had stood surety for a Mr Chohan, who was charged with serious offences of fraud and dishonesty in the Crown Court at the instance of Her Majesty's Customs and Revenue.

[2]Mr Choudhry stood surety for the defendant in the sum of £240,000. Mr and Mrs Hanson stood surety for him in the sum of £80,000 each. In the course of his trial, Mr Chohan absconded, went abroad and has never been apprehended. Accordingly, on the face of it, each of the claimants became liable to pay the relevant sums under the terms of their sureties. That is, to have their recognizances estreated. Having heard the parties' submissions, His Honour Judge Griffith-Jones found that in each case the parties were bound by the obligations, despite arguments to the contrary. He abated the liability of each of the claimants by a factor of a third. Accordingly, he ordered Mr Choudhry to pay £160,000 and Mr and Mrs Hanson the sum of £53,300 each; each claimant to serve a proportionate term of imprisonment in default.

[3]The challenges respectively by Mr Choudhry and by Mr and Mrs Hanson are phrased in somewhat different ways but are similar in substance. First, it is said that because of events subsequent to the taking of the sureties, the claimants had ceased to be bound when the defendant absconded. Second, it is said that the court, in deciding whether each of the claimants should be relieved in full of payments of the sums for which they stood surety, failed properly to consider the fact that they had previously requested to be removed as sureties. Thirdly, and alternatively, that when the court came to consider the amount that they should pay, it failed to take properly into account their long expressed wishes to withdraw from their responsibility as sureties. Fourthly, in the case of Choudhry, the court failed properly to take into account his part in efforts to persuade the defendant to return to this country to face justice.

[4]The factual background is as follows. On 3rd April 2003 the Crown Court in Maidstone granted Chohan bail with various conditions. One condition was for the defendant to provide six sureties in the combined sum of £600,000 to secure his attendance at court. On 8th April 2003, Mr and Mrs Hanson were accepted as sureties at the Maidstone Crown Court. They undertook to be sureties and to pay £80,000 each if the defendant did not surrender. Mr Hanson was a business partner of Mr Chohan.

[5]On 2nd June 2003 Mr Chohan surrendered to the Crown Court. Mr Hanson signed again as surety until the end of the proceedings. On 1st August 2003 both Mr and Mrs Hanson signed as sureties. The relevant terms of the sureties which were signed are as follows. Mr Hanson on 2nd June 2003 signed to the effect that he accepted:

"That I am obliged to pay the sum beside my signature below if the defendant fails to surrender to the custody of the Crown Court. Surety continues until conclusion of proceedings, including Crown Court and Court of Appeal."

There followed Mr Hanson's signature and the amount in question, £80,000. The sureties taken from Mr and Mrs Hanson on 1st August 2003 read, as to each of them, in identical terms:

"I accept that I am obliged to pay the sum beside my signature below if the defendant fails to surrender to the custody of the Crown Court as and when required to conclusion of case."

Again, the signature and the amount is set at the foot of the form.

[6]On 4th November 2003 Mr Choudhry was accepted as a surety at the Crown Court in Maidstone. He replaced another surety who was deemed to be unsuitable. He undertook to be a surety continuously until the end of the proceedings, including the Crown Court and the Court of Appeal, and to pay £240,000 if the defendant did not surrender. The terms of his surety were as follows:

"I . . . will pay the sum beside my signature if the defendant does not surrender to the custody of the Crown Court (surety continuous to the conclusion of proceedings including Crown Court and Court of Appeal)."

Below that undertaking on the form were the sum of £240,000 and the claimant's signature.

[7]Other sureties were also taken. In particular, Akbal and Nadra Rajput were sureties from 8th April 2003 in the sum of £40,000 each, and there was a further surety, Mohammed Ibrar, from the same date in the sum of £120,000.

[8]The case of Chohan was transferred in due course from Maidstone to the Crown Court in Birmingham. It being a major criminal case with much detail and many documents, the process of bringing the matter to trial took time. Indeed, it took several years. On 19th August 2004 Mr and Mrs Hanson wrote to the defendant's solicitors, Benyon Kang, to say that they could no longer stand surety because they were intending to sell their house. On 31st August 2004 they sent another letter to those solicitors stating that they were no longer in a position to stand surety.

[9]On 11th October 2004 at the Crown Court in Birmingham, the defendant applied for the total of the sureties to be reduced in amount and for the defendant's sister to be accepted as surety in substitution for one or more of the existing sureties. This application (an application made on behalf of the defendant, it is to be noted) was heard by Her Honour Judge Fisher who did not accede to it. I shall return to her decision later.

[10]On 24th November 2004 Mr and Mrs Hanson wrote to the court referring to the court hearing on 11th October, which of course had not resulted in a bail variation. They said that the case was more serious than they had been told, it had gone on longer than they had expected and that they were not in contact with Asad Chohan. On 3rd May 2005 they wrote to the court indicating that they still did not know the whereabouts of Chohan and asking for clarification of the decision not to release them as sureties. By 13th May 2005 they had been in touch with the court seeking to be relieved of their obligations as sureties and enquiring how they could go about it. On 13th May 2005 they received the following letter from the court:

"Dear Mr and Mrs Hanson RE: Surety for Asad Chohan Further to our telephone conversation on 11th May 2005 please note that I am still unable to locate the lead Crown Court file. This file is needed before your request can be put before the judge. We will continue to search for the file daily and will keep you updated at all times. If you have any queries please contact me. Yours sincerely."

[11]Subsequently, on 27th July 2005 Mr Chohan was granted a variation of bail conditions. It was not the only one, but it was one which was particularly referred to in argument. The court order includes the words:

"Provide sureties in the sum of £600,000 continuous through proceedings (already taken)."

[12]On 23rd January 2006 Mr Hanson wrote to the Crown Court to say that Mr Chohan and his solicitors had asked him to remain a surety for three weeks in order to enable Mr Chohan to find a replacement, a proposal with which he reluctantly agreed. On 20th March 2006, the charges against Mr Chohan having been ordered to be tried in three separate trials, the first trial began. On 5th April 2006 Mr Chohan absconded. The trial continued in his absence and on 21st April 2006 he was convicted. At or about that time the sureties were required to attend court.

[13]On 16th November 2006 His Honour Judge Griffith-Jones, who had heard the trial, conducted a hearing which we are told lasted some three days in relation to all the sureties in order to decide whether and/or to what extent their recognizances should be forfeit. He made the orders which I have described in relation to these claimants. In relation to Mr and Mrs Rajput he ordered each of them to pay the sum of £10,000 which involved forfeiture of 25 per cent of each of their recognizances. He excused payment by a further surety. Nothing turns, in the arguments before this court, on this last decision.

[14]I turn, so far as is necessary for the purposes of this judgment, to the law relating to bail and to sureties. The grant of bail is governed by the Bail Act 1976 as amended. Section 8(4)(b) provides for sureties to be taken. It is common ground that it is or should be the practice of the court to explain to a surety exactly what the obligations are, to ensure that the surety understands the obligations that he is to undertake, to ensure that he is nevertheless still prepared to undertake the obligations and that he is worth the sum involved, net of his debts, and to warn him of the consequences of future events, which include possible imprisonment if the defendant fails to appear when required to. Rule 19.24 of the Criminal Procedure Rules 2005 states:

"Forfeiture of recognizances in respect of person bailed to appear before the Crown Court (1) Where a recognizance is conditioned for the appearance of an accused before the Crown Court and the accused fails to appear in accordance with the condition, the court shall declare the recognizance to be forfeit. (2) Where the Crown Court declares a recognizance to be forfeited under paragraph (1) the court officer shall issue a summons to the person by whom the recognizance was entered into requiring him to appear before the court at a time and place specified in the summons to show cause why the court should not order the recognizance to be estreated. (3) At the time specified in the summons the court may proceed in the absence of the person by whom the recognizance was entered into if it is satisfied that he has been served with a summons."

[15]The principles governing the forfeiture of recognizance were reviewed by the Court of Appeal in R v Maidstone Crown Court ex parte Lever and Connell

[1996] 1 Cr.App.R 524

. They include the following: "(a) The purpose of a recognizance is to bring the defendant to court for trial. (b) The forfeiture of recognizance is not a penalty imposed on the surety for misconduct. (c) It is for the surety to establish to the satisfaction of the court that there are grounds upon which the court may remit from forfeiture part or, wholly exceptionally, the whole recognizance. (d) The absence of culpability on the part of the surety is not of itself a reason to set aside or reduce the obligation entered into. (e) Absence of culpability is a factor to be considered. The court may, in the exercise of a wide discretion, decide it would be fair and just to estreat some or all of the recognizance. The burden of satisfying the court that the full sum should not be forfeited rests upon the surety and is a heavy one: R v Uxbridge Justices ex parte Heward-Mills [1983] 1 AER 530.

[16]On behalf of Mr Choudhry, it was submitted that the description on the surety form of his being "a surety continuous until conclusion of proceedings (including Crown Court and Court of Appeal)" was erroneous. It was submitted that in any event the surety should not continue until any proceedings in the Court of Appeal Criminal Division. It was submitted that, having regard to the subsequent history, Mr Choudhry ceased to become a surety. It was pointed out on Mr Choudhry's behalf that no contact had been made between the court and himself between November 2003 and the time that the defendant absconded. The court is referred to the fact that an attempt was made by the claimant to apply to cease to be a surety in 2006, albeit that that application was withdrawn. It is pointed out that the application for variation of bail on 27th July 2005, to which I have referred, was never notified to Mr Choudhry and he was unaware of it.

[17]Reliance is placed by Mr Howat on his behalf on the case of R v Reading Crown Court ex parte Bello

[1991] 92 Cr. App.R 303

at page 313. It is submitted that that supports the proposition that sureties should be warned of all future hearings and trial dates, even of a listing in a warned list. Reliance is placed on the fact that the Crown Court did not keep the sureties informed in this case. Reliance is placed on the decision of R v Kent Crown Court ex parte Jodka, 9th April 1997, as support for the proposition that any subsequent grant of bail constitutes a new bail order requiring reconsideration of bail as a whole, including the question of sureties, their suitability and their willingness to continue in the role.

[18]It is submitted that the reconsideration and variation of bail on 27th July 2006 amounted to a new bail order. It is further submitted that, upon the arraignment of the defendant, a new bail order came into existence, the existing bail order came to an end and a reconsideration of bail, including sureties, should then have occurred. Reliance is placed on the Consolidated Criminal Practice Direction which makes it clear that from the outset of the trial bail is within the discretion of the trial judge. It is submitted that this is another factor which supports the proposition that a new and fresh bail order is made once the trial begins, even if bail has been continuous up to that point.

[19]In the alternative, it is submitted that if the claimant was an effectively bound surety at the time Mr Chohan absconded, it was unreasonable in the Wednesbury sense to estreat the sum of £160,000 in all the circumstances of the case. The presumption that forfeiture should take place is one which is rebuttable. Reliance is placed on R v Harrow Crown Court ex parte Lingard

[1998] EWHC Admin 233

, in which it was said by Dyson J (as he then was) that in an exceptional case where the surety is entirely blameless and the failure of the defendant to surrender bail is wholly outside the control of and unforeseeable by the surety, the court may, in the exercise of its discretion, remit the whole or a substantial part of the recognizance. It is submitted that the reduction made by the judge in the present case of the sum to be forfeited was substantially too small given the extreme and unusual circumstances; and that the whole amount should have been remitted.

[20]Finally, it is submitted that the claimant should have been treated at least as being in the same position as Mr and Mrs Rajput as he was instrumental in the efforts to secure the defendant's return from Pakistan. He was as much part of the joint effort to achieve that as were Mr and Mrs Rajput, and he should have had a similar reduction in the amount of his liability.

[21]On behalf of Mr and Mrs Hanson, Mr O'Callaghan in his written arguments stresses the obligations to explain fully to sureties the obligations that they are undertaking and to ensure that they are kept informed of court proceedings. He too relies on the Jodka case to support the proposition that by the time the trial began, at the very latest, there had been a further grant of bail and that therefore unless sureties were retaken, the obligations ceased.

[22]Reliance was placed on the fact that there is no express provision in the Bail Act 1976 to enable a surety personally to request that he or she be discharged from her obligation. It was submitted by Mr O'Callaghan that because of the onerous obligations undertaken by sureties, they should not have to rely on an application by the defendant whose attendance they are guaranteeing in order to secure release from their obligations. They have, or should have, a right to apply to the court. Alternatively, the court should keep them informed and consider properly the representations that they make.

[23]On behalf of Mr and Mrs Hanson Mr O'Callaghan relies heavily on the correspondence that they conducted with the court, the telephone enquiries they made of the court and the contact they had with the defendant's solicitors. I have referred already, in summary of the factual background, to many of those letters and conversations. As early as June 2004, Mr and Mrs Hanson had contacted the defendant's solicitors. On 19th August 2004 they had written:

"My wife and I will no longer be able to stand for surety with our property from this date as we are looking to sell our property. Please inform the Court Service to cancel our surety for the amount of £160,000 from 2nd June 2003."

Reliance was placed on other letters which are set out and referred to in Mr O'Callaghan's written argument.

[24]With regard to the hearing before Her Honour Judge Fisher, it was submitted that she erred in law. She paid no or no sufficient attention to the interests of Mr and Mrs Hanson, even though her attention was drawn, albeit briefly, to the fact that they were reluctant to continue as sureties. Criticism is made of the judge for refusing to vary the bail conditions so as to change the identity of the sureties. Reliance is placed on subsequent correspondence with the Crown Court to which I have already referred. It is pointed out that although the letter of 13th May 2005 referred to putting Mr and Mrs Hanson's request before the judge, the court file was never placed before the judge, or before any judge, for consideration, at any rate until the hearing before His Honour Judge Griffith-Jones.

[25]In relation to the judgment of Judge Griffith-Jones, particular criticism is levelled by Mr O'Callaghan at his finding that the claimants had made only "intermittent" efforts to stop being sureties, and on the stress placed by the judge on the fact that they had been persuaded to remain in the role late in the proceedings until alternatives were found. It is said that the judge's findings failed to reflect the numerous requests that Mr and Mrs Hanson had made to be relieved of their obligations. Criticism was also made of the failure to inform the claimants at the outset that they would be unable to rescind their obligation and the judge's failure to take that omission into consideration. It is suggested that the judge's ultimate finding that he would not reduce the amount payable any further by reason of such efforts that they made to extricate themselves from their obligation was Wednesbury unreasonable in all the circumstances.

[26]Mr O'Callaghan's principal submissions can be encapsulated in this way on the point: that the judge's characterisation of their efforts to extricate themselves as "intermittent" was inaccurate and unfair and, as a consequence, his decision not to reduce the sureties below two thirds of the recognizance was irrational.

[27]In response, Mr Waddington stressed the onerous obligations of sureties. He submitted that if courts could allow sureties to stand down simply because they were no longer willing to act, it would send the wrong message about the seriousness of the obligation of surety. Its purpose was to ensure the attendance of a defendant at a criminal trial and was thus a central part of the criminal justice system. The seriousness of the obligation should not be diluted.

[28]As regards the point of whether or not the obligations on the claimants persisted throughout the proceedings, Mr Waddington relied on the fact that the documents were signed after the case reached the Crown Court. He submitted that the case of Jodka was not pertinent because it referred to bail which was granted in the Magistrates' Court. On the question of whether the references to bail at various stages in the proceedings amounted simply to continuation of existing bail or amounted to a separate grant of bail, Mr Waddington accepted that at the outset of the trial bail was, as he put it, "revisited". The court, however, whether or not it amounted to a fresh grant of bail, stated when making the order clearly what the conditions were, and these conditions included the continuous sureties which had been unambiguously taken in the first place.

[29]As to Her Honour Judge Fisher's judgment, Mr Waddington reminded the court that that was not under challenge in these proceedings, and indeed it would be too late for her decision to be challenged. In any event, he submitted that it was difficult to identify anything wrong in her approach. It was never suggested to her, nor did she have reason to believe, that any of the claimants were unsuitable as sureties. She properly considered their reluctance to act but decided that the sureties should remain in place, a decision which he submitted was not open to reasonable criticism.

[30]With regard to the judgment of His Honour Judge Griffith-Jones and the amount by which he decided to reduce the recognizances payable, Mr Waddington pointed out that the hearing went on for three days, a lot of evidence was presented to the judge and all relevant documents were before him, save perhaps for the transcript of Judge Fisher's judgment. The claimants were cross-examined and reference was made to relevant authorities, and it was submitted that there was no ground for supposing that the judge misdirected himself on the principles to be applied.

[31]In relation to the comparison and contrast between the treatment of Mr Choudhry on the one hand and Mr and Mrs Rajput on the other, Mr Waddington submitted that there were two clear reasons for distinguishing between them. First, that Mr and Mrs Rajput had suffered a substantial deterioration in their means since agreeing to become sureties. They stood now to lose their house whereas previously it was not at risk. This was in contrast, for example, to Mr and Mrs Hanson who always recognised that they might stand to lose their house if the recognizance was enforced. Secondly, Mr Waddington submitted that the judge was entitled to consider that Mr and Mrs Rajput's efforts and those of their son to secure the defendant's return to the United Kingdom were more substantial than those of Mr Choudhry.

[32]My conclusions are as follows. In relation to each of the claimants, I am satisfied that the terms upon which they agreed to be bound as sureties before the Crown Court were such that their obligations continued beyond the commencement of the trial. I am satisfied that the extent of their obligations was made clear to each of them. In the case of Mr and Mrs Hanson, the recognizance forms dated 8th April and 1st August 2003 make the obligations quite clear. It was conceded, in fact, on the defendant's behalf before Her Honour Judge Fisher that the sureties were continuous. I do not accept that adjournments, orders for separate trials or other procedural events were capable of bringing those obligations to an end. Similar considerations, in my judgment, apply to Mr Choudhry whose surety in broadly similar terms was taken on 4th November 2003. Mr Choudhry in particular urged the court to find that by the time of trial his obligations had ceased.

[33]In assessing whether the sureties continued in force, as it seems to me the decisions in R v Central Criminal Court ex parte Guney

[1996] AC 616

and Jodka are clearly distinguishable from the present situation. It is clear from those decisions that the jurisdiction of the Magistrates to grant bail does not extend beyond the first occasion on which a defendant surrenders to the Crown Court. That is the proposition for which Jodka is authority. Astill J in his judgment in that case referred to the Guney case and quoted the words of Sir Thomas Bingham MR, as he then was:

"The grant of bail was continuous so long as the proceedings remained in the Magistrates' Court, and extended until [the named defendant] first surrendered to the custody of the Crown Court."

Astill J continued:

"He was then dealing with the exercise by the Magistrates of powers conferred by s.3 of the Bail Act 1976 and s.128 of the Magistrates' Courts Act 1980 which apply to the present case. The matter was considered by the House of Lords in that same case reported at (1996) 2 Cr.App.R 252 at p.357. Lord Steyn said: 'It is imperative that there should be an objectively ascertainable formal act which causes a defendant's bail to lapse at the beginning of a trial. In my judgment that formal act can only be the arraignment of the defendant. The arraignment of the defendant involves (1) calling the defendant to the bar by name; (2) reading the indictment to him; (3) asking whether he is guilty or not . . . When a defendant who has not previously surrendered to custody is so arraigned he thereby surrenders to the custody of the court. From that moment the defendant's further detention lies solely within the discretion and power of the judge. Unless the judge grants bail the defendant will remain in custody pending and during his trial. This is a readily and comprehensible system which causes no problems for the administration of justice.' That, so it seems to me, is the clearest statement that at least at arraignment any bail granted by the Magistrate ceases if the defendant surrenders himself to custody."

Importantly, Astill J continues:

"In my judgment, that applies to any appearance before the Crown Court where a defendant surrenders to custody."

[34]From that passage it is abundantly clear, in my judgment, that Astill J is referring to Magistrates' Court bail and expressing the opinion that that ceased at first appearance of a defendant before the Crown Court. Here the recognizances in question were taken in the Crown Court proceedings. It is drawn to our attention that in explaining the situation to Mr Choudhry on 4th November 2003, His Honour Judge MacKinnon at Maidstone Crown Court said that the surety was "to ensure the defendant's attendance at trial" (transcript of the hearing page 12). But the terms of the written recognizance which Mr Choudhry signed were, as already mentioned in the judgment, clear and no great stress is placed on the significance or otherwise of the judge's words on that date.

[35]In my opinion, it is both possible and lawful for a recognizance in Crown Court proceedings to be expressed as continuous until the conclusion of proceedings in the Crown Court. The next question which arises is whether any order varying the conditions of bail, unconnected with the sureties in question, gives rise to the need for sureties to be taken afresh. My answer to this question would be no. There is no practical or rational reason why it should be so.

[36]The final question on this topic relates to the commencement of trial when bail on any view falls to be reconsidered. Assuming that a defendant on bail is then allowed to continue on bail, whether on the same or varied terms, does that amount to a fresh grant of bail or a continuation of previous bail? I am inclined to think that the former must be correct. I am reinforced in that view by the Practice Direction (Criminal Proceedings Consolation) paragraph III.25

[2002] 1 WLR 2870

. That section of the Practice Direction deals with the topic of bail during trial. At III.25.2 it is said:

"Once a trial has begun, the further grant of bail, whether during the short adjournment or overnight, is in the discretion of the trial judge. It may be a proper exercise of this discretion to refuse bail during the short adjournment if the accused cannot otherwise be segregated from witnesses and jurors."

[37]In contrast to the language used in that subparagraph, namely "the further grant of bail", a different expression is used in relation to reconsideration of bail subsequently in the proceedings. The expression used in relation to that is "renew", so in subparagraph 4 the words "bail shall not be renewed" are used in relation to the summing up stage, and the word "renewal" is again used in relation to the stage when the jury has returned its verdict. Not only does the matter come at the start of the trial into the realm of the trial judge's discretion but also the language of the Practice Direction suggests a further (ie, fresh) grant of bail to be continued thereafter as the trial judge sees fit. Does that then mean that sureties have to be taken again? My answer to that question would be that, provided the recognizances were, as here, in terms which made it clear that they continued to bind the surety until the end of the trial then they would remain in force so long as bail was granted in terms which required that they did so. Accordingly, I find that (subject to the judge's discretion later to abate the strict terms of the surety) the obligation remained in force in relation to these claimants at the time of Mr Chohan's absconding.

[38]In the course of His Honour Judge Griffith-Jones's judgment, he dealt fully with the matter and his ruling is set out at page 7 of the transcript of his judgment between letters B and F. In my view, what he said cannot be faulted. It was, at any rate at one stage in the case, submitted on behalf of the claimants that their obligation as sureties was brought to an end by their notifications of a wish to withdraw. That submission is no longer pursued. But there is no doubt that each of them, to a greater or lesser extent, at certain stages expressed the wish to be relieved of their obligations. They were anxious about the lengthy delay in the defendant being brought to trial and, in the case of the Hansons, were influenced by their allegedly changed circumstances. The question therefore arises: did either of the judges who dealt with the matters make an error of law or misdirect themselves in their approach to what was presented to them?

[39]As regards Her Honour Judge Fisher, she was invited by counsel for the defendant to substitute new sureties for those of the claimants. The matter was drawn to her attention in these terms at page 3 of the transcript by Mr Hibbert who was representing the defendant. He drew attention to the fact that Mr Choudhry had stood surety for £240,000 and now wished to withdraw because he needed to sell property for the purposes of his business. He also referred to Mr and Mrs Hanson who were surety for £80,000 each. That appears at page 3 letter C. At letter F appears the following:

"Mrs Hanson has always, as I understand it from Mr Hanson, been reluctant to be a surety but has the surety with the sale of the matrimonial home they both are to withdraw their sureties."

I have quoted that as it appears in the transcript, plainly not an entirely accurate record but the substance is clear. There is, as Mr O'Callaghan points out, no reference to the Hansons after that in the transcript, but the judge's ruling to be found at page 16 letter F was as follows:

"In the case of Asad Chohan, bearing in mind the history of this matter and the acknowledged breach of bail conditions at an earlier stage, February/March of last year, 2003 and the fact that he has a previous conviction I take the view that it is right that the total sum for sureties in his case should remain at £600,000. I know it is a substantial sum but that was the sum which was fixed at an earlier stage at Maidstone Crown Court so that I am not prepared to vary the sureties or to reduce the sum of money. If on further consideration there are others to whom this defendant, Asad Chohan, can turn in order to provide the total sum by way of a surety then so be it but at the moment I am not in a position to make any variation to the bail in the form of altering the total sum by way of a surety."

[40]In my judgment, this approach cannot be faulted. The judge cannot be criticised for not agreeing to reduce the total amount of a surety necessary to safeguard the defendant's attendance. She was told that the existing sureties wished to withdraw. She indicated that the total sum should not be varied, but if other satisfactory sureties could be found bail could be varied. This left the way open, if appropriate, for the claimants to be replaced as sureties. Such an approach was, in my judgment, perfectly sensible. The focus before the judge was on whether or not it was appropriate to reduce the amount of the recognizances, not on any immediate withdrawal of the present sureties. Matters might have taken a different course if any of the sureties actually attended court then or on any other occasion and said that they refused any longer to be bound, or if they had approached the prosecution, or if the defendant's solicitors had approached the case in a different way. Under any of those circumstances, if no alternative sureties had been found, a stage might have come when it was appropriate to remand the defendant in custody until substituted sureties could be found, but it is clear that that stage was never reached.

[41]I come now to the judgment of His Honour Judge Griffith-Jones. By way of preliminary observation I would say that on the face of them the terms of the judgment are both detailed and careful. It is plain that the judge had heard all the evidence and noted all the documents which the parties had drawn to his attention. It is important to emphasis this point in the context of the submissions that no adequate weight was given to the claimants' attempts to withdraw from their obligations as sureties and also to the criticism made of the comparison between the reduction in the case of Mr Choudhry and those of Mr and Mrs Rajput.

[42]At the passage at page 4F of the transcript and the passages which follow, the judge correctly set out the law relating to the issues before him. He noted the sureties' obligations, and the burden of proof on the sureties to show cause why full recognizances should not be forfeited if the defendant failed to appear. He took into account the court's discretion to reduce the amount forfeited or to relieve from forfeiture, either with reference to lack of culpability or lack of means. He said as follows:

"This court has power to ameliorate the effect of the estreatment of a recognizance either by allowing time for that to be paid, or by directing that it could be paid by instalments. But it is ultimately a matter of discretion for the court whether or not to estreat a recognizance. If the court does so order, relevant circumstances that may be personal mitigation can be put before the court. It is the norm that the full recognizance should be forfeited, unless it appears fair and just that a lesser sum should be forfeited, or that no sum should be made payable at all."

The judge then recited the authorities to the effect that the burden of satisfying the court that the full sum should not be forfeited was a heavy one and rested on the surety. He reviewed the law relating to the power of the court to order reduced amounts. At 5D he said this:

"I have to make it clear (and I do) that the sureties in this case are not to be regarded in any sense as criminals or defendants. They are innocent members of the public, who have entered into an obligation to the Crown Court, whose loss of any money is not to be regarded as some sort of penalty for misconduct. These cases often do include heart-rending decisions by the court about the consequences that can flow to sureties who have made such a solemn promise and obligation. It is important that the policy behind the requirement for sureties is in the forefront of my mind, and that the real pull of bail, the real effective force that it exerts, is that it may cause a defendant to attend his trial rather than subject his friends or relatives or people who trust him to the catastrophic financial consequences and discomfort that may follow from having to have their money estreated."

[43]In my judgment, contrary to submissions made on behalf of the claimants, the principles recited by the judge are entirely consistent with the case of Lingard, from which I have already quoted. As my Lord Richards LJ pointed out in argument, the passage relied upon by the claimants sets out that the court may, in the exercise of its discretion, remit the whole or the substantial part of the amount of the recognizance in an exceptional case. There is no principle of law which requires it to do so.

[44]The judge continued his review of the law by recognising that a factor to be taken into consideration was the failure of the court to keep the claimants in touch; he concluded that ignorance of the date of the trial could not be an answer to the estreatment of a surety but each case would depend on its own facts. He said this:

"In this case, the failure of the sureties to foresee what was to happen is a matter that has been accepted by the court, and will in each case result in some mitigation of the sum that has to be paid."

In my judgment, the judge's summary of the applicable principles cannot be faulted and was entirely consistent with authority.

[45]With regard to Mr Choudhry's claim to have been unfairly treated in comparison with Mr and Mrs Rajput, Judge Griffith-Jones dealt with the matter in some detail. For these purposes I need cite only a short extract of what he said. At paragraph 9D he said:

"Mr and Mrs Rajput, who live in Birmingham, actually came to the Crown Court and saw that the case had started. (In fact it was just Mr Rajput who came to the court). On 5th April, he learned that Asad Chohan had disappeared. They then made persistent efforts to contact the Chohan family. They were greeted with evasive behaviour. They later learned that Asad was in Pakistan, and they sent their son, at their own expense, to try and get him back. They tried really hard. They did all that they could. And although, as I have indicated, they succeeded in locating and initially detaining Asad, they could not get him back. This extraordinary effort by them is a factor which I have taken into account. So also are the debts that have accumulated since the recognizance was entered into."

Later at the conclusion of his judgment Mr Howat raised with the judge whether deduction should have been made for his client, such as was done in the case of the Rajputs and the judge said this at page 19B:

"No, because it is the Rajputs who directed the individual and who paid for him to go."

[46]Having heard and carefully considered the evidence there is, I think, no reason to believe that the judge was otherwise than entitled to make the findings that he did. Under the particular circumstances, he was clearly entitled to make a distinction between Mr and Mrs Rajput and Mr Choudhry. He did not misdirect himself in any way and, in my judgment, his decision in that regard cannot be described as irrational.

[47]As regards Mr and Mrs Hanson, at page 11 letter F of his judgment the judge set out in detail the steps which they took before and after the hearing before Her Honour Judge Fisher to indicate their unwillingness to act as sureties. He noted that when they wrote to the court in November 2004 the court unfortunately replied saying that they had lost their file. However, at page 12 letter C the transcript records the important finding:

"Thereafter, by January 2006, it is clear that the Hansons had been persuaded to remain as sureties while Chohan tried to find alternatives. He did not and they remained sureties. In essence, therefore, they had made intermittent efforts to stop being sureties. They had not succeeded. They were still sureties on 5th April 2006, when Asad disappeared."

[48]Mr O'Callaghan's submission in relation to the judge's refusal further to abate Mr and Mrs Hanson's liability by reason of their efforts to withdraw as sureties is powerfully made. It may be that the judge's use of the word "intermittent", though in its strict sense apposite when one considers the whole period during which the suretyship lasted, did less than full justice to the persistence of their efforts in the second part of 2004 and 2005. These efforts were directed both to the defendant's solicitors and to the court. Express reference was made by the judge to some of the documents, though it is accepted that they were all before him.

[49]In that context, this court has to ask itself whether the judge's conclusion to make no further reduction in the sum was irrational. This test is necessarily a high one. I think it would have been possible for the judge rationally to have taken a view more favourable to the claimants; some other judges might have done so. But this judge directed himself correctly in all material respects. He clearly considered all the documents and assessed the evidence at a very lengthy hearing. At page 13 of his judgment he said:

"Further, I am left with the feeling that I cannot trust that which Mr Hanson tells me about his means. He was not able to show me commission payments. I remind myself that he has a heavy burden of proof in showing cause why the recognizance should not be forfeited. I do accept that Mr and Mrs Hanson have no role to play in Mr Chohan's disappearance, and that it was not foreseeable, and that the whole proceedings took longer than was envisaged. For that reason, I reduce by one-third their total obligation, but I do not reduce the sum any further by reason of such efforts that they made to extricate themselves from their obligation; nor do I reduce the sum by reason of their means."

After anxious consideration, I am not persuaded that the judge's conclusion that a one third deduction was sufficient in the case of Mr and Mrs Hanson can properly be described as irrational.

[50]For all these reasons, I am of the opinion that the claimants all remained bound by their recognizances when the defendant absconded and that His Honour Judge Griffith-Jones directed himself correctly as to the proper approach to remitting the proportion of each of their recognizances. Having so directed himself, he arrived in my view at decisions which were rational. For those reasons I would dismiss the claims.

LORD JUSTICE RICHARDS: I agree. The judge's decision is amenable to challenge only by way of judicial review, which is very different from an appeal on the merits. In judicial review this court's jurisdiction is supervisory. Its function is to examine the lawfulness of the judge's decision. If the sureties had lapsed by the date when the defendant absconded then the judge could not lawfully have made the order he did, but I am satisfied that, for the reasons given by Gibbs J, the sureties had not lapsed. The decision was thereafter one for the judge in the exercise of a wide discretion, albeit a discretion guided by the principles established in the authorities. It is clear that the judge directed himself correctly as to those principles.

[52]The case therefore comes down to whether the decision he reached in the exercise of his discretion was irrational, that is, one that no reasonable judge could have reached on the evidence before him. That is always a difficult argument for claimants to sustain and I am wholly unpersuaded that the claimants have succeeded in sustaining it in this case. I agree with Gibbs J that another judge might have taken a more favourable view of the claimants' position, but that is not sufficient to establish irrationality.

[53]It should be stressed that the judicial review challenge is to the decision of His Honour Judge Griffith-Jones, not to the earlier decision of Her Honour Judge Fisher, though again I agree that there was no legal error in that earlier decision either.

[54]Accordingly, the judicial review claim must be dismissed.

[55]MR WADDINGTON: May it please my Lord, I have an application for costs. The total sum I ask for is £3,000. Perhaps it can be split between Mr and Mrs Hanson on the one hand and Mr Choudhry on the other. So I ask for £1,500 in respect of Mr and Mrs Hanson and £1,500 in respect of Mr Choudhry. I have served schedule of costs to my learned friends.

LORD JUSTICE RICHARDS: What do you say about that, Mr Howat?

[57]MR HOWAT: I concede it is a reasonable sum. As to the apportionment, I submit it should be three ways amongst the three claimants. I accept that there is only one lawyer for the second and third claimants, but I would say obviously the Crown Court were the defendants and are not represented and I accept that the Customs and Excise took on the role in the court below but whether they as an interested party, as it were, should at the discretion of this court receive the costs I leave entirely to the court other than making those brief points.

LORD JUSTICE RICHARDS: Mr O'Callaghan?

[59]MR O'CALLAGHAN: I obviously would have to say on behalf of the claimant with two applications, I am representing a family and I would ask for it to be 50/50 with regard to the interested party, and obviously the Crown Court are not here.

LORD JUSTICE RICHARDS: Thank you very much. We take the view that the claimants have suffered sufficiently already. There will be no order as to costs.