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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Iqbal, R (On the Application Of) v The Crown Court At Canterbury [2020] EWHC 452 (Admin) (18 February 2020) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2020/452.html Cite as: [2020] 2 Cr App R 1, [2020] EWHC 452 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice |
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B e f o r e :
MRS JUSTICE CARR DBE
____________________
THE QUEEN ON THE APPLICATION OF IQBAL |
Applicant |
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- and - |
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THE CROWN COURT AT CANTERBURY |
Respondent |
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- and - |
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THE DIRECTOR OF PUBLIC PROSECUTIONS |
Interested Party |
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REPORTING RESTRICTIONS APPLY: SECTION 4(2) OF THE CONTEMPT OF COURT ACT 1981 |
____________________
THE RESPONDENT did not appear and was not represented.
MS V. AILES (instructed by the CPS) appeared on behalf of the Interested Party.
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Crown Copyright ©
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
MRS JUSTICE CARR DBE:
Introduction
The Director of Public Prosecutions ("the DPP") appears as an interested party.
The facts
"… [The Claimant] is a man who... quite inexplicably in many ways, has been released under investigation for many months before he was re-interviewed, where he gave no comment and was subsequently charged. It's right to say that he has attended... the voluntary interview and... he appears at the magistrate's court. But I am quite satisfied, as was the District Judge, that there was a very real and substantial risk of this man failing to surrender if I were to grant him bail, and that risk is not met by any of the proposed conditions, even if I add to it not applying for any travel documentation. So this application for bail is refused."
The procedural position
PACE 1984 and the Bail Act 1978
"1. The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would—
(a) fail to surrender to custody..."
"In taking the decisions required by paragraph 2(1)... the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—
(a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it),
(b) the character, antecedents, associations and community ties of the defendant,
(c) the defendant's record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings,
(d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted,
(e) if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the risk that the defendant may do so by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant as well as to any others which appear to be relevant."
"Where a magistrates' court or the Crown Court—
(a) withholds bail in criminal proceedings...
and does so in relation to a person to whom section 4 of this Act applies, then the court shall give reasons for withholding bail or for imposing or varying the conditions."
The Claimant's case
i. this was a serious offence, carrying a substantial sentence;
ii. the Claimant was a man of good character with strong family ties and a settled home in Liverpool;
iii. the Claimant had had no previous contact with the police, and so no bail record;
iv. the evidence against the Claimant was strong and it was suggested that his defence was implausible.
i. failed to acknowledge the right to bail;
ii. failed to explain why she rejected the evidence that – notwithstanding the Claimant's knowledge of the seriousness and strength of the case against him – he had attended on the police and at court when requested, in favour of the findings that there was a very real and substantial risk of the Claimant failing to surrender if granted bail;
iii. appeared to question the police decision to release the Claimant under investigation in 2017 and thereafter.
"…The underlying facts have to be put forward.."
The DPP's case
"... had to extend to a minimum reasonable level of adequacy, and had to identify the ground or grounds upon which the court was satisfied that bail should now be refused, and with a minimum level of adequacy identify the case specific reasons for being so satisfied."
Analysis: legal framework
"11. Although we have jurisdiction by reason of section 17(6)(b), I am in 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 wasteful duplication, Parliament has, by a side wind, created a more protracted and expensive remedy of common application.
12. Mr Montgomery, on behalf of M, recognises this in his submissions when he says that judicial review is appropriate only in a rare case where a judge in the Crown Court has plainly gone wrong in an extreme way. I do not feel able to adopt that as the test. The test must be on Wednesbury principles, but robustly applied and with this court always keeping in mind that Parliament has understandably vested the decision in judges in the Crown Court who have everyday experience of, and feel for, bail applications. Of course if bail were to be refused on a basis such as 'I always refuse in this type of case', or some other unjudicial basis, then this court would and should interfere."
"Right to liberty and security: 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:... (c) the lawful arrest or detention of a person affected... when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so..."
"35... The Crown Court judge constitutes, for the purposes of Article 5... the independent court which has to decide the issue. The Convention does not require any right of appeal from that independent court. This is not a strict appeal. It is a judicial review, so there is, in my judgment, no reason why the approach of this court should be other than a strict review approach....
37. [A more intensive review] would undoubtedly be the right approach if this were a decision of a review court dealing with an administrative decision against which there was no appeal. However we are not dealing with an administrative decision, but we are dealing with the decision of a judge."
"3. Mr Bowen has submitted that since we are concerned here with rights under Article 5 of the European Convention on Human Rights, the test ought to be one of proportionality rather than the usual Wednesbury test. But, as seems to me, in this context what this court has to decide, this being a review and not an independent appeal, is whether the decision made by the judge below proportionate. It will be proportionate if it lay within the bounds of what was reasonable in deciding what was proportionate. Hence, the test is, appropriately, the Wednesbury test when it comes to this court."
"10. The approach under the Bail Act is entirely consistent with the approach that the European Court has regarded as proper under Article 5, namely that there must be a grant of bail unless there are good reasons to refuse. The approach, therefore, really is not should bail be granted, but should custody be imposed, that is: is it necessary for the defendant to be in custody? That is the approach the court should take. Only if persuaded that it is necessary, should a remand in custody take place. It will be necessary if the court decides that whatever conditions can reasonably be imposed in relation to bail, there are nonetheless substantial grounds for believing that the defendant would either fail to surrender to custody, commit an offence, interfere with witnesses or otherwise obstruct justice."
The test of necessity was repeated by Silber J in Fergus at [20].
"38. The third issue to which I should refer is that which deals with intensity of review. Mr Perry drew attention to the fact that in his submissions he had not relied on the Wednesbury principle. In my judgment it was correct that he should adopt that approach. This case involves the human rights of the claimants. In those circumstances it is only right that the court which originally considers the question of granting an extension should look at the matter with particular care, as the authorities indicate. Equally, when the matter comes before us, we must scrutinise it rigorously, but at the same time recognising that the decision is for the judge in the court below to make. Unless we come to the conclusion that he has wrongly exercised his discretion we will not interfere."
Applying the legal background to the facts
i. the nature and seriousness of the offence, and the probable method of dealing with the Claimant for it; and
ii. the strength of the case against the Claimant.
Thus she considered considerations (a) and (d) of para.9 of Part I of Schedule 1 to be in play.
LORD JUSTICE FULFORD: I agree.