Groves, R (on the application of) v Newcastle Upon Tyne Crown Court [2008] EWHC 3123 (Admin)

[2008] EWHC 3123 (Admin)Case No CO/3305/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 9 April 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BURTON
Between
THE QUEEN ON THE APPLICATION OF GROVESClaimantv
Between
NEWCASTLE UPON TYNE CROWN COURTDefendant
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 Joseph Hedworth (instructed by Alderson Dodds) appeared for Claimant for The Defendant was not represented and did not attend
J U D G M E N T
[1]MR JUSTICE BURTON: This has been an application under the new system for permission and if permission is granted for the substantive application to follow in respect of an application by way of judicial review in respect of a refusal of bail at the Newcastle upon Tyne Crown Court by His Honour Judge Whitburn QC on 2 April 2008 after the claimant had been convicted before him on two counts.[2]The jurisdiction of this court is a new one and is also a limited one. The court can only interfere effectively if the judge, in relation to a bail application or a bail refusal, has acted Wednesbury unreasonably. As has been pointed out by Mr Justice Collins in R (On application of Allwin) v Snaresbrook Crown Court [2005] EWHC 742 (Admin) , this is a very rare phenomenon. If the matter is one that falls within the judge's discretion it will rightly very rarely indeed be interfered with.[3]This is a somewhat unusual case. The claimant was convicted of acts of jury interference by a jury in April 2007 with regard to an earlier trial in October 2006 which had been aborted as a result of the claimant threatening two members of the jury. He served - of a 28-month sentence which was imposed upon him in respect of 18 months and 12 months concurrent for the two offences of jury intimidation and 10 months consecutive for the original offence of affray - effectively 14 months or slightly more which, with remission, which as I understand it is not in issue, would have satisfied that custodial sentence such that he could be released on licence.[4]The convictions were however quashed after the decision in the House of Lords in R v Abdroikof and Others [2007] UKHL 37, after a hearing in the Court of Appeal on 19 December 2007, on the basis that, as had been known and acquiesced in at the time of the trial, a senior Crown prosecution lawyer employed by the Durham Crown Prosecution Service was perfectly properly on the jury when he was convicted. The House of Lords have subsequently taken a dim view of that course which meant that the Court of Appeal had no option but to quash the conviction and order a re-trial. He was granted bail with conditions of residence and non-contacting of any prosecution witnesses. On the re-trial he was, once again, convicted. However he has served the total amount of the sentence imposed on the first trial.[5]It is quite plain that His Honour Judge Whitburn QC, perhaps not surprisingly, takes the view that the sentence imposed by Miss Recorder Matthews when he was convicted after the first trial was more than lenient and that the judge had in mind on sentencing - because he so said immediately the jury had convicted the claimant - that the sentence imposed by Miss Recorder Matthews was, as he put it, a merciful one and he was not bound by it. He said he would bear it in mind but he was not bound by it. He ordered that the claimant be remanded in custody for three weeks for the preparation of a pre-sentence report. A pre-sentence report would obviously assist him in the sentencing process.[6]The judge was referred to the provisions of Schedule 2 of the Criminal Appeals Act 1968 which proscribe that where there is a re-trial - a defendant is convicted on the re-trial - he cannot be sentenced to a longer sentence than was imposed on the first occasion, which would mean that the maximum sentence that he could obtain has already been served by him and the judge can only be looking for a disposal of a non-custodial variety. When those provisions were pointed out to him he said:
"I have in mind a sentence which may afford his release. I want to know more about him. I will bear in mind the schedule [Schedule 2 to which I have referred]. I think it was a merciful sentence but I am bound by the Court of Appeal."
[7]The judge was asked to sentence that day but he did not, and apparently indicated that he might be the sort of person who might exact revenge. He concluded by addressing the claimant in the following terms:
"You were fortunate you received the custodial sentence that you did. I would have passed a higher one. Community service may be the appropriate outcome. That is a matter for probation. If custody is imposed I will bear the schedule in mind. If a community order is possible, then I shall consider it very carefully indeed. The earliest release date for the claimant was 10 December 2007. But because of the pending hearing of his appeal by the Court of Appeal he was not released until 19 December 2007. There is therefore an error (?) of time left for it to be re-imposed upon him and if he is re-imposed with the same sentence as he had before he will be immediately released."
[8]In those circumstances it is alleged that the judge acted unreasonably, possibly in excess of jurisdiction in remanding the claimant in custody for the three weeks required to obtain a pre-sentence report. There was no suggestion that he would fail co-operate with the pre-sentence report. If there were any such suggestion I have requested and obtained from counsel acting for him today an undertaking that he will co-operate.[9]It is quite plain that the reasons why the judge remanded the claimant in custody were two-fold:(1) when he did so he did not have in mind the restriction on his sentencing power; he was only reminded of that after he had already decided to remand him in custody;(2) he was concerned, and said so, that there would be a risk to the witnesses if he were not in custody.[10]So far as the latter is concerned, that is a risk which does not cease after three weeks. If there really is a threat to witnesses the height of the risk would have been in the period prior to the re-trial whereby he might have hoped that such witnesses could be intimidated out of giving evidence. Alternatively, that there might have been some repeat of his conduct towards the new jury as he had conducted himself in relation to the original jury. Both witnesses and jury are now out of the way, subject to any possible appeal. Therefore if there is a risk to anyone at all it is not a risk which is bounded by this three-week period. The judge could not sentence him to any custodial period to guard against that factor.[11]There is no basis other than pure punishment for the defendant to stay in custody until sentencing for the purpose of providing the written report. It will mean that he will have served yet longer above the period which has already expired.[12]In those circumstances I conclude that this order should not have been made. Alternatively it should have been revoked by the judge the minute the problem with the schedule was pointed out to him. I should now quash it and substitute it by an order that the bail should be continued on the same terms.[13]The prosecution has not attended before me today notwithstanding the fact that this was not only the application for permission but also the rolled up hearing if permission were granted. And I am satisfied that I can and should make this order notwithstanding their absence, not least because they did not oppose the grant of bail either in the Court of Appeal or at the Crown Court. That is the order I make.[14]MR HEDWORTH: I understand as far as costs are concerned that legal aid was granted moments before I came into court. A substantial amount of work had been done prior to the grant.

MR JUSTICE BURTON: What can I do about it?

[16]MR HEDWORTH: I would ask that if any costs are not covered by legal aid that they be granted out of central funds.[17]MR JUSTICE BURTON: Have I got jurisdiction to make that order? This is not a criminal court. (Judge conferred with associate) Can I make that if I am sitting as a judge in the Administrative Court? I can certainly make it obviously in the Court of Appeal (Criminal Division) and do. I am not sure about the Divisional Court. I am even less certain about the Administrative Court. Have you any authority?[18]MR HEDWORTH: In the case of Allwin v Snaresbrook Crown Court Mr

Justice Collins talks about costs at the end of his judgment at paragraph 25 onwards:

"My Lord, the last thing and I am sorry to have to raise this. This application was prepared on the basis of default powers."

Mr Justice Collins goes on:

"This is presumably one which is criminal, is it not? It is obviously a criminal matter. There are some such matters in some of the cases stated."
[19]MR JUSTICE BURTON: He called it a representation order which of course is quite normal in the Court of Appeal (Criminal).[20]MR HEDWORTH: I am aware that this is civil jurisdiction as opposed to - - - - -[21]MR JUSTICE BURTON: I will make the order. Whether I have jurisdiction to do so is a matter that the relevant office can take up in due course. I make the order that you can have any costs prior to the grant of legal aid out of central funds. I make an order that your legal aid costs be assessed under the scheme.[22]MR HEDWORTH: I am grateful.