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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Cardin, R (on the application of) v Birmingham Crown Court & Anor  EWHC 2101 (Admin) (11 August 2017)
Cite as:  EWHC 2101 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE VICE PRESIDENT OF THE CRIMINAL DIVISION
THE HON MRS JUSTICE ANDREWS DBE
| R(on the application of TYRONE CARDIN)
|- and -
|BIRMINGHAM CROWN COURT
BIRMINGHAM MAGISTRATES' COURT
Tom Little (instructed by the Crown Prosecution Service) for the First Interested Party
Hearing date: 9 August 2017
Crown Copyright ©
Mrs Justice Andrews:
1. Prosecution right of appeal
(1) Where a magistrates' court grants bail to a person who is charged with … an offence punishable by imprisonment, the prosecution may appeal to a judge of the Crown Court against the granting of bail.
(4) In the event of the prosecution wishing to exercise the right of appeal set out in subsection (1) above, oral notice of appeal shall be given to the court which has granted bail at the conclusion of the proceedings in which bail has been granted and before the release from custody of the person concerned.
(5) Written notice of appeal shall thereafter be served on the court which has granted bail and the person concerned within two hours of the conclusion of such proceedings.
(6) Upon receipt from the prosecution of oral notice of appeal from its decision to grant bail the court which has granted bail shall remand in custody the person concerned, until the appeal is determined or otherwise disposed of.
(7) Where the prosecution fails, within the period of two hours mentioned in subsection (5) above, to serve one or both of the notices required by that subsection, the appeal shall be deemed to have been disposed of.
(8) The hearing of an appeal under subsection (1) …. above against a decision of the court to grant bail shall be commenced within forty-eight hours, excluding weekends and any public holiday (that is to say, Christmas Day, Good Friday or a bank holiday) from the date on which oral notice of appeal is given."
"The defendant is to be taken to the nominated prison establishment and held in custody until any further order of this court or the Crown Court. Unless the defendant waives his right to appear, he is to be taken before the Birmingham Crown Court at a date and time to be notified."
"Written notice of appeal handed to Rene and Molly at 14.33. Court informed that Tyrone has already been taken to prison! Apparently the court office generated a warrant for him after the morning session to say (incorrectly) that written notice had already been given. I tell the court that Tyrone needs to be returned to court ASAP (doesn't appear likely) – the other option is to have court fax a copy of the written notice to Winson Green with instructions that it be served on D as soon as he arrives. Copies of the appeal notice are served on all three Def sols in court."
" Warrants issued by a court of law require to be treated with the same respect as must be accorded to any order of the court. The general rule was stated by Romer LJ in Hadkinson v Hadkinson  P 285, at 288:
"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A person who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it … It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void — whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed' (Per Lord Cottenham LC in Chuck v Cremer (1846) Cooper temp Cott 205 , 338)."
That passage was followed in R v Oldham Justices, Ex p Cawley  QB 1 , where it was held that a prison governor did not require to question the order contained in a warrant of committal."
" Parliament did not intend that subsection (7) could defeat an appeal if the prosecution has given itself ample time to serve the notice on the defendant within the two hour period, has used due diligence to serve the notice within that period and the failure to do so is not the fault of the prosecution, but is due to circumstances outside its control. If it were necessary to rewrite subsection (7) to achieve Parliament's intention, I would do so by adding the following at the conclusion of the sub-section: "unless such failure was caused by circumstances outside the control of the prosecution and not due to any fault on its part."
"This seems to me to be reinforced by the reference to "two hours" in subsection 7… The legislative policy there is that the prosecution are strictly bound to serve the notices mentioned in subsection (7) within the period of two hours as there mentioned… Subsection (8) falls to be contrasted with that state of affairs by use of the expression "from the date on which oral notice of appeal is given".
"The court officer for the court which has granted bail must instruct the defendant's custodian to release the defendant on the bail granted by that court, subject to any condition or conditions of bail imposed, if –
(a) The prosecutor fails to serve an appeal notice within the time to which paragraph (4) refers."