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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Khan, R (on the application of) v Crown Prosecution Service [2008] EWHC 1000 (Admin) (18 April 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1000.html Cite as: [2008] EWHC 1000 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18th April 2008

1. MR JUSTICE COLLINS: This is a claim for judicial review of a refusal of bail by His Honour Judge Hammond, sitting in the Leicester Crown Court.
2. The claimant is due to stand trial at Leicester on 2nd June, with others, on a charge of prison mutiny. As is perhaps obvious, at the time the offence was allegedly committed the claimant was serving a sentence of imprisonment and was due to be released from that sentence on 21st March 2008.
3. There was a plea and directions hearing in December 2007. At that time the claimant was remanded on unconditional bail. The reason for that, I am told and I can understand, is that the view was taken that there was no point in arguing about bail because the claimant, and indeed some of the others, were in custody and the question of bail could be considered, if appropriate, at the time of their release. Unfortunately, it seems that whoever was responsible for that decision did not make it clear at the time that this was what has been dubbed technical bail in that sense, and that the CPS reserved the right in relation to any of the defendants to come to court before the release and argue that there should not be a release, but that there should be a remand in custody pending trial.
4. The claimant's release date turned out to be Good Friday, and so his release was due to take place on the day before. On the day before that, the CPS notified the court that there would be objections to bail. So the matter came before His Honour Judge Hammond the following day, which of course was the last day of sitting before the Easter break. Presumably the court would not sit until at least the following Tuesday, and possibly even after that.
5. The result was that the claimant was not able to be brought to court, because it was last-minute application, and so his counsel was not able to take any specific instructions. Equally, the information that was available upon which objections to bail were based included information from a police officer that a probation report had indicated that the claimant remained a danger. He has an appalling record of offending. The view may well have been taken that he was a risk and that he might commit further offences as a result of his record. However, that was not the specific basis for refusing bail.
6. The learned judge has put before the court a note in which he explains what was put before him and the reasons for refusing bail. In fact what he has done is to provide details of the notes he made of the hearing.
7. The main point made on the claimant's behalf was that the evidence against him was very weak indeed. It depended upon the observation of one prison officer in a statement made some three days after the event, when it is alleged that he identified the claimant as someone who had put something on a fire which had been lit in the wing in which the mutiny was said to have taken place.
8. However, the disclosure of the relevant document showed that this officer had in his report, made contemporaneously, indicated that he could not see anything because it was dark and had certainly not indicated that he identified the claimant. Obviously that is a matter which will depend upon cross-examination in due course. But the point being made was that the case against the claimant was so weak that he had no incentive to fail to attend his trial. Notwithstanding that, and because largely of his failure to co-operate, so it was said, with the prison authorities and his large number of previous convictions, which included 48 offences of dishonesty, violence and indecent assault, the learned judge took the view that he would be likely to abscond and therefore refused bail.
9. I have no doubt that in the circumstances the learned judge did not deal with the matter in a fair way, so far as the claimant was concerned. As I have said, because of the last-minute application made by the CPS — and they are to blame for not having given proper notice — the claimant was unable to attend, and so his representative was unable to take any proper instructions. Equally, the material relied on in the form of a police report of what had been put in a probation report was unsatisfactory. Again it had not been possible for the representative of the claimant to check the accuracy of what was being put before the judge.
10. What should have happened, if the judge was concerned that this might well be a case where it would be appropriate to refuse bail, is that he should have made, as it were, a holding order to refuse bail over the weekend (a long weekend it is true) and direct that the matter should come before the court on the first day that it sat after the Easter vacation, and that arrangements must be made for the claimant to attend. No doubt those representing him could have attended at the prison where he was being held over the few days in which he remained in custody. Equally, the report which was relied on could have been produced to the representatives of the claimant, so that they had a proper opportunity to deal with whatever allegations were made against the claimant. However, as I say, that did not happen and the learned judge made the order which is in issue in this case.
11. Judicial review of a refusal of bail by a Crown Court judge is available. However, as the authorities make clear, it is only in exceptional circumstances that the court would entertain such a claim. Normally one looks at the matter on the basis of seeing whether the decision was one which was irrational. Of course, the threshold for that is a very high one and it would be difficult in most cases for that to be established.
12. In this case I am not in a position to decide whether bail should or should not be granted. I do not have enough information, and it is plain from what I have already said that there may be grounds for refusing bail. Equally, it may well be a case where bail is indeed appropriate, when the full material is available and the full submissions are able to be put before the court. But, as it seems to me, this is a rare case, in that there has been a procedural impropriety and a lack of fairness in the way that this claimant was dealt with.
13. In those circumstances I propose to give permission for judicial review, to dispense with all the technical requirements thereafter and to treat this as the hearing of the substantive claim.
14. For the reasons given, I propose to allow the claim. What I will do is to grant a declaration that the matter should go back to the Leicester Crown Court for an application for bail to be considered by a judge other than Judge Hammond, and that that application should be treated as if it were the first application for bail; that is to say that there is no need for there to be shown to be any change of circumstances since Judge Hammond's decision. The effect is that Judge Hammond's decision is to be treated as if it had not been made. I will declare in the way that I have indicated that there should be a fresh application as soon as possible before the Crown Court, to be treated as a first application for bail.
15. I appreciate, Mr Kilgour, you may say that is the wrong way round in a sense, because this was the CPS coming to refuse bail. But I do not think it terribly matters how it is labelled, because the point is that the judge will have to consider whether bail should be granted or not. So whether it is an application by the claimant or whether it is regarded as the CPS coming and saying, "We did not consider bail before because he was in custody, but now it is a matter that should be considered", I am not sure makes any difference in the long run, because the test is the test set out in the Bail Act.
16. MR KILGOUR: Yes, provided he gets an opportunity to....
17. MR JUSTICE COLLINS: Provided, as you say, he gets a proper opportunity to meet whatever is alleged against him. That must be served, obviously. I do not know whether it already has been, but if it has not it should be done immediately. As soon as it can be arranged, it should be go back at the beginning of next week.
18. MR KILGOUR: I am obliged to your Lordship.
19. MR JUSTICE COLLINS: Thank you both.
20. What is your position so far as any legal aid is concerned?
21. MR KILGOUR: We are publicly funded.
22. MR JUSTICE COLLINS: Yes, but on what basis? Who has granted you...?
23. MR KILGOUR: I do have letter from the Legal Services Commission.
24. MR JUSTICE COLLINS: Is it the Legal Services Commission?
25. MR KILGOUR: Yes. (Pause)
26. MR JUSTICE COLLINS: The question is who should pay for this. It does make a difference as to.... As we all know, in public --
27. MR KILGOUR: Yes, it is the Legal Services Commission Special Cases Unit.
28. MR JUSTICE COLLINS: Yes.
29. MR KILGOUR: I can hand up to your Lordship a letter, if that assists.
30. MR JUSTICE COLLINS: What does it say?
31. MR KILGOUR: It just confirms that legal aid has been granted.
32. MR JUSTICE COLLINS: It is a formal letter just saying that legal aid has been granted.
33. MR KILGOUR: It says, "I agree to issue a substantive certificate."
34. MR JUSTICE COLLINS: You see, we have the question of votes as to who pays. The Legal Services Commission comes in the same vote as the Ministry of Justice, but of course it is divided between the Court Service and legal services and prison services and so on. They are all different parts. So there is, on one view, an interest in the court in seeking to have the funds paid elsewhere. I forget who the CPS gets its funding from; is that the Ministry of Justice as well now?
35. MISS THOMPSON: I think it is, my Lord.
36. MR JUSTICE COLLINS: I think it probably is. So it is the Ministry of Justice having to pay in one form or the other in any event.
37. Miss Thompson, it is not the practice of this court to make orders against courts on a whole unless they take part in the hearing, as they sometimes do. But what about the CPS? Because frankly it was, at least to a considerable extent, the CPS which, by its failure to give proper notice, at least created the situation where unfairness could exist. Should it not bear some responsibility in costs for that?
38. MISS THOMPSON: My Lord, I take the view that they thought that they were acting in the interests of the public at large.
39. MR JUSTICE COLLINS: Of course, but they should have done it days before. They should have given proper notice.
40. MISS THOMPSON: It is difficult to argue that my instructing solicitor should actually pick up the costs of this hearing for this reason. They were appraised of the situation by the Public Protection Unit, who informed the probation service, who were so concerned at the contents of the interview they contacted the CPS, who in turn placed the application before the court.
41. MR JUSTICE COLLINS: I follow that. But this should have been done.... They knew when he was going to be released. Surely, if there was any question, this matter should have been dealt with at least a week before he was due to be released, so that proper notice and proper information could be given to the representatives. I appreciate that the CPS is not responsible for the unfairness perpetrated by the court. On the other hand, they have some responsibility for the situation that arose.
42. I think what I am inclined to do is to direct that the CPS pay half the costs of this and make no order in relation to the other half.
43. MISS THOMPSON: Thank you.
44. MR JUSTICE COLLINS: There will have to be the usual detailed assessment of the legal aid costs, and obviously the amount will be the subject of assessment if not agreed. It is not going to be a huge amount.
45. Thank you both.