Fergus, R (on the application of) v Southampton Crown Court [2008] EWHC 3273 (Admin)

[2008] EWHC 3273 (Admin)Case No CO/11261/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 4 December 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SILBER
Between
THE QUEEN ON THE APPLICATION OF FERGUSClaimantv
Between
SOUTHAMPTON CROWN COURTDefendantTHE QUEEN ON THE APPLICATION OF FAGINClaimantvSOUTHAMPTON 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 David Rhodes (instructed by Hartnells) appeared for claimant FergusMr Julian Hayes (instructed by Hayes) appeared for claimant FaginMr Carl Anderson (instructed by Crown Prosecution Service) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE SILBER: Michael Fergus seeks to challenge a decision made by His Honour Judge Boggis QC, sitting in Southampton Crown Court, on 31 October 2008 by which he withdrew the claimant's bail. This is a rolled-up hearing, and I hereby give permission.[2]On 26 June 2008 the claimant was arrested. On the following day he was interviewed. On 28 June 2008 he appeared before the Southampton Magistrates' Court when he was charged with, first, possession, with intent to supply, of a class A drug; second, possession of criminal property; finally, a count of possession of cannabis. At the hearing the Crown did not oppose bail. The magistrate granted the claimant and his co-accused Taarig Fagin bail subject to conditions of residence and reporting requirements.[3]On 29 August 2008 both defendants returned on bail to Southampton Magistrates' Court for their case to be committed to the Crown Court. They were both re-admitted to bail subject to residence requirements and reporting restrictions. They had to attend Southampton Crown Court on 13 October 2008 for their plea and case management hearing.[4]The claimant did not attend Southampton Crown Court on 13 October 2008 because he had contacted his solicitors on that day to explain that he was in hospital following an accident. A message was passed to His Honour Judge Ralls QC, sitting at Southampton Crown Court, who duly adjourned the plea and case management hearing until 31 October 2008. He enlarged the claimant's bail until that date but subject to the additional condition that the claimant provide written confirmation from the hospital to excuse his attendance.[5]The claimant duly produced those documents in advance of the hearing on 31 October 2008.[6]The claimant's solicitors had in the meantime been told by the officer in the case that on 31 October 2008 the police intended to re-arrest the claimant in order to interview him further in relation to the provenance of cash found during the raid. The information was communicated to the claimant who nevertheless surrendered to bail on 31 October 2008.[7]On that day the claimant and his co-accused were arraigned in front of Judge Boggis. The claimant pleaded guilty to the count of simple possession of cannabis but he pleaded not guilty to the two more serious counts. Judge Boggis gave directions and he fixed the trial date for 5 January 2009.[8]A time came during the course of discussions when the judge said he was concerned about the bail position. In answer to a question, the judge was told that the claimant, who was aged 23 years old, had eight convictions for twenty-three offences. Counsel for the claimant then explained: first, that the claimant had been bailed by the police in June; second, that he had not failed to surrender; third, he knew he was going to re-arrested on 31 October but that that prospect had not prevented him from attending; and, fourth, that he had not committed any further offence whilst he was on bail.

The judge said:

"Count 1 is a very serious matter. Mr Fergus, your record does you no credit at all."

The judge then pointed out that the co-defendant was younger, before saying:

"I am worried about both of you failing to attend. You will both be remanded."
[9]The basis of the application for judicial review is that it is now settled law that the appropriate remedy for refusal of bail is by judicial review, in the light of the abolition of the right of appeal from the Magistrates' Court and the Crown Court to a High Court judge in chambers, as a result of the provisions of Section 17 of the Criminal Justice Act 2003.[10]The right to come to this court to apply by judicial review was the conclusion of the Divisional Court in R (On application of M) v Isleworth Crown Court [2005] EWHC 363 (Admin). In that case it was further held that in determining whether judicial review should be granted to challenge a decision refusing bail the test was explained in Isleworth by Lord Justice Maurice Kay, giving the judgment of the court, with which Mr Justice Moses (as he was) agreed:
"I have no doubt that it is a jurisdiction which we should exercise very sparingly indeed. It would be ironic and retrograde if, having abolished a relatively short and simple remedy on the basis that it amounted to a wasteful duplication, Parliament has, by a side wind, created a more protracted and expensive remedy of common application."
[11]Lord Justice Maurice Kay then went on to consider the appropriate test that should be applied. He said at paragraph 12:
"The test must be on Wednesbury principle but robustly applied and with this court always keeping in mind that Parliament understandably vested the decision in judges in the Crown Court who have everyday experience of a feel for bail applications. Of course if bail were to be refused on the basis such as 'I always refuse in this type of case' or some other unjudicial basis then this court would and should interfere."
[12]The bases of the present challenge to the decision of Judge Boggis to withdraw bail are, first, that it is irrational in the sense that no reasonable judge could have made it; second, it was a frustration of legitimate expectation; and, third, there was a failure to give reasons.[13]The defendant to this application, the Southampton Crown Court, stated in its Acknowledgement of Service that it did not intend to make submissions. The Crown Prosecution Service, which was an interested party served with the claim, stated that in response to the judicial review application it did not oppose the application brought by the claimant for the relief sought.[14]It also explained in that document first that it had not at any stage opposed the grant of bail to the claimant, second that it has no information that the claimant has breached any conditions of bail and third that on 31 October it did not make an application for the claimant's bail to be withdrawn even though he was to be arrested and interviewed with a view to adding a count to the indictment.[15]It was also pointed out by the Crown Prosecution Service that the claimant has now been charged together with his co-defendant of having in his custody or control counterfeit currency notes and coins without legal authority or excuse contrary to Section 16 (2) of the Forgery and Counterfeiting Act 1981. Committal proceedings have been instituted. I have been told that the claimant has been committed to the Crown Court for trial on this matter with unconditional bail. Mr Carl Anderson has appeared today on behalf of the Crown Prosecution Service and has indicated again that the Crown Prosecution Service do not challenge the order quashing the judge’s decision that is being sought by the claimant.[16]Nevertheless it is still necessary for the court to be satisfied that the grounds relied on by the claimant are made out. Starting with the claims that the decision of Judge Boggis was irrational, the case for the claimant is that the decision to withdraw bail was devoid of any plausible application and was therefore irrational.[17]Under the Bail Act 1976 a court must grant bail unless there is a significant risk of the defendant failing to surrender, committing further offences whilst on bail or interfering with witnesses or otherwise obstructing the course of justice. In this case, as I have explained, the reasoning of the judge was "I am worried about both of you failing to attend." There were two facts that might have justified a decision to withdraw bail. They related first to the seriousness of the offences with which he was charged, relating as they do to class A drugs and, second, the relevant previous convictions of the claimant. The first was in 2000 when he was sentenced to a fine of £10 for failing to surrender. The second was in 2007 for failing to surrender to custody at the appointed time, presumably because he was late, for which he received a sentence of one day's imprisonment.[18]On the other hand, in this case there are many factors in favour of continuing bail. First, the prosecution had not opposed bail. Second, the claimant had been admitted to bail four months earlier and since then had abided by his conditions of residence and reporting to a specified police station. Third, there was no evidence that the claimant had committed further offences while on bail. Fourth, the claimant had surrendered to bail when required to do so at the magistrates' court on 29 August 2008. Fifth, his bail had been enlarged when he was absent through ill health and he provided medical evidence to support the reason why he could not attend court. Finally, he had surrendered bail on 31 October 2008 even though he knew he would be re-arrested for further questioning on related matters.[19]Mr Rhodes, who appeared today on behalf of the claimant, drew my attention to the decision of Mr Justice Collins, sitting in this court, in R (on application of Thompson) v Central Criminal Court, a decision given on 6 October 2005 in which he said at paragraph 10:
"The approach under the Bail Act is entirely consistent with the approach of the European Court as regarded proper under Article 5, namely there must be a grant of bail unless there are good reasons to refuse. The approach therefore really is not should there be bail granted but should custody be opposed, that is, is it necessary for the defendant to be in custody. That is the approach that the court should take. Only if persuaded that it is necessary should a remand in custody take place. It would be necessary if the court decides that whatever conditions can be reasonably imposed in relation to bail there are nevertheless substantial grounds for believing that the defendant will either fail to surrender to custody, commit an offence, interfere with witnesses or otherwise obstruct justice."
On that basis Mr Rhodes contends that the critical test for determining whether or not custody should be imposed was whether it was necessary for the defendant to be in custody.[20]Drawing all these strings together, it seems to me that - bearing in mind the presumption in favour of granting bail and the high threshold that a defendant should only be remanded in custody if it was "necessary" - there are very significant factors here which cause concern. First, the defendant had been on bail for more than four months. Second, he complied with all reporting and residence conditions of bail. Third, he surrendered to bail when required to do so.[21]To my mind, certain consequences flow from that. First, it is not reasonable for a court to withdraw bail unless it is necessary to do so especially as any decision to withdraw bail engages rights under Article 5. Second, any such reason justifying the decision to withdraw bail must be stated by the decision maker explaining why bail should be withdrawn and that reason must relate to the facts. Such a reason must be more than merely reciting that one of the statutory grounds has been made out. The underlying facts have to be put forward.[22]In this case no good reason has been put forward by the judge nor by the Crown Prosecution Service to establish one of the statutory grounds as to why bail should be refused.[23]In those circumstances it follows, in my view, that the claim that the judge’s decision to withdraw bail based on irrationality has been made out when one considers the presumption, the history in this case and the failure of the judge to give any reason to justify his conclusion. I therefore quash the decision of the Southampton Crown Court withdrawing the claimant's bail.[24]MR RHODES: It follows that he is therefore re-admitted to bail on conditions as before. I am not sure if it is necessary for a further order from your Lordship in relation to that.[25]MR JUSTICE SILBER: I am quashing the decision, and the existing (sic) continues - applies. So the order will be: the decision of His Honour Judge Boggis of 31 October 2008 by which he withdrew the claimant's bail is quashed. Second, that he be granted bail upon the conditions on which he had previously been granted bail.[26]MR RHODES: I am grateful.

MR JUSTICE SILBER: We had better recite those conditions.

[28]MR RHODES: They are in a draft order. They are residence at 42 Hastings Road, London SE15 6TX - his mother's address - and reporting at Dulwich Police Station every Tuesday and Friday between 7 pm and 9 pm.[29]In relation to costs, I am not sure if it is appropriate for me to apply for the claimant's cost in this case as it is an issue in the Crown Court. He is publicly funded. I ask for detailed assessment of the claimant's publicly funded costs.[30]MR JUSTICE SILBER: Yes. I presume you are quite content with that.[31]MR ANDERSON: I am.

MR JUSTICE SILBER: Can you draw up the order; if you would write it out by hand and hand it in.

[33]MR RHODES: In relation to the order your Lordship has made?

MR JUSTICE SILBER: The order I have just made.

[35]MR RHODES: Yes. There is a draft order with the papers at pages 3 and 4 of the bundle - I can hand up my copy if it assists - and costs order.

MR JUSTICE SILBER: If you put it in the costs order and hand it in that will be very useful.

[37]MR RHODES: I will.

Cited in 5 later judgments