Choudhry v Birmingham Crown Court
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GIBBS,LORD JUSTICE RICHARDS |
| Judgment Date | 26 October 2007 |
| Neutral Citation | [2007] EWHC 2764 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 October 2007 |
| Docket Number | CO/1228/2007 and CO/1332/2007 |
[2007] EWHC 2764 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Richards
Mr Justice Gibbs
CO/1228/2007 and CO/1332/2007
Mr R D C Howat (instructed by Middleweeks) appeared on behalf of the First Claimant
Mr D O'Callaghan (instructed by David Phillips & Co) appeared on behalf of the Second Claimant
Mr J Waddington (instructed by the RCPO) appeared on behalf of the Interested Party
The Defendant did not attend and was not represented
There are before the court two linked claims. Each seeks to challenge decisions of His Honour Judge Griffith-Jones made on 16th November 2006 in the Crown Court at Birmingham. One claim is brought by Mr Choudhry and one by Mr and Mrs Hanson. All three claimants had stood surety for a Mr Chohan, who was charged with serious offences of fraud and dishonesty in the Crown Court at the instance of Her Majesty's Customs and Revenue.
Mr Choudhry stood surety for the defendant in the sum of £240,000. Mr and Mrs Hanson stood surety for him in the sum of £80,000 each. In the course of his trial, Mr Chohan absconded, went abroad and has never been apprehended. Accordingly, on the face of it, each of the claimants became liable to pay the relevant sums under the terms of their sureties. That is, to have their recognizances estreated. Having heard the parties' submissions, His Honour Judge Griffith-Jones found that in each case the parties were bound by the obligations, despite arguments to the contrary. He abated the liability of each of the claimants by a factor of a third. Accordingly, he ordered Mr Choudhry to pay £160,000 and Mr and Mrs Hanson the sum of £53,300 each; each claimant to serve a proportionate term of imprisonment in default.
The challenges respectively by Mr Choudhry and by Mr and Mrs Hanson are phrased in somewhat different ways but are similar in substance. First, it is said that because of events subsequent to the taking of the sureties, the claimants had ceased to be bound when the defendant absconded. Second, it is said that the court, in deciding whether each of the claimants should be relieved in full of payments of the sums for which they stood surety, failed properly to consider the fact that they had previously requested to be removed as sureties. Thirdly, and alternatively, that when the court came to consider the amount that they should pay, it failed to take properly into account their long expressed wishes to withdraw from their responsibility as sureties. Fourthly, in the case of Choudhry, the court failed properly to take into account his part in efforts to persuade the defendant to return to this country to face justice.
The factual background is as follows. On 3rd April 2003 the Crown Court in Maidstone granted Chohan bail with various conditions. One condition was for the defendant to provide six sureties in the combined sum of £600,000 to secure his attendance at court. On 8th April 2003, Mr and Mrs Hanson were accepted as sureties at the Maidstone Crown Court. They undertook to be sureties and to pay £80,000 each if the defendant did not surrender. Mr Hanson was a business partner of Mr Chohan.
On 2nd June 2003 Mr Chohan surrendered to the Crown Court. Mr Hanson signed again as surety until the end of the proceedings. On 1st August 2003 both Mr and Mrs Hanson signed as sureties. The relevant terms of the sureties which were signed are as follows. Mr Hanson on 2nd June 2003 signed to the effect that he accepted:
"That I am obliged to pay the sum beside my signature below if the defendant fails to surrender to the custody of the Crown Court. Surety continues until conclusion of proceedings, including Crown Court and Court of Appeal."
There followed Mr Hanson's signature and the amount in question, £80,000. The sureties taken from Mr and Mrs Hanson on 1st August 2003 read, as to each of them, in identical terms:
"I accept that I am obliged to pay the sum beside my signature below if the defendant fails to surrender to the custody of the Crown Court as and when required to conclusion of case."
Again, the signature and the amount is set at the foot of the form.
On 4th November 2003 Mr Choudhry was accepted as a surety at the Crown Court in Maidstone. He replaced another surety who was deemed to be unsuitable. He undertook to be a surety continuously until the end of the proceedings, including the Crown Court and the Court of Appeal, and to pay £240,000 if the defendant did not surrender. The terms of his surety were as follows:
"I … will pay the sum beside my signature if the defendant does not surrender to the custody of the Crown Court (surety continuous to the conclusion of proceedings including Crown Court and Court of Appeal)."
Below that undertaking on the form were the sum of £240,000 and the claimant's signature.
Other sureties were also taken. In particular, Akbal and Nadra Rajput were sureties from 8th April 2003 in the sum of £40,000 each, and there was a further surety, Mohammed Ibrar, from the same date in the sum of £120,000.
The case of Chohan was transferred in due course from Maidstone to the Crown Court in Birmingham. It being a major criminal case with much detail and many documents, the process of bringing the matter to trial took time. Indeed, it took several years. On 19th August 2004 Mr and Mrs Hanson wrote to the defendant's solicitors, Benyon Kang, to say that they could no longer stand surety because they were intending to sell their house. On 31st August 2004 they sent another letter to those solicitors stating that they were no longer in a position to stand surety.
On 11th October 2004 at the Crown Court in Birmingham, the defendant applied for the total of the sureties to be reduced in amount and for the defendant's sister to be accepted as surety in substitution for one or more of the existing sureties. This application (an application made on behalf of the defendant, it is to be noted) was heard by Her Honour Judge Fisher who did not accede to it. I shall return to her decision later.
On 24th November 2004 Mr and Mrs Hanson wrote to the court referring to the court hearing on 11th October, which of course had not resulted in a bail variation. They said that the case was more serious than they had been told, it had gone on longer than they had expected and that they were not in contact with Asad Chohan. On 3rd May 2005 they wrote to the court indicating that they still did not know the whereabouts of Chohan and asking for clarification of the decision not to release them as sureties. By 13th May 2005 they had been in touch with the court seeking to be relieved of their obligations as sureties and enquiring how they could go about it. On 13th May 2005 they received the following letter from the court:
"Dear Mr and Mrs Hanson
RE: Surety for Asad Chohan
Further to our telephone conversation on 11th May 2005 please note that I am still unable to locate the lead Crown Court file. This file is needed before your request can be put before the judge.
We will continue to search for the file daily and will keep you updated at all times.
If you have any queries please contact me.
Yours sincerely."
Subsequently, on 27th July 2005 Mr Chohan was granted a variation of bail conditions. It was not the only one, but it was one which was particularly referred to in argument. The court order includes the words:
"Provide sureties in the sum of £600,000 continuous through proceedings (already taken)."
On 23rd January 2006 Mr Hanson wrote to the Crown Court to say that Mr Chohan and his solicitors had asked him to remain a surety for three weeks in order to enable Mr Chohan to find a replacement, a proposal with which he reluctantly agreed. On 20th March 2006, the charges against Mr Chohan having been ordered to be tried in three separate trials, the first trial began. On 5th April 2006 Mr Chohan absconded. The trial continued in his absence and on 21st April 2006 he was convicted. At or about that time the sureties were required to attend court.
On 16th November 2006 His Honour Judge Griffith-Jones, who had heard the trial, conducted a hearing which we are told lasted some three days in relation to all the sureties in order to decide whether and/or to what extent their recognizances should be forfeit. He made the orders which I have described in relation to these claimants. In relation to Mr and Mrs Rajput he ordered each of them to pay the sum of £10,000 which involved forfeiture of 25 per cent of each of their recognizances. He excused payment by a further surety. Nothing turns, in the arguments before this court, on this last decision.
I turn, so far as is necessary for the purposes of this judgment, to the law relating to bail and to sureties. The grant of bail is governed by the Bail Act 1976 as amended. Section 8(4)(b) provides for sureties to be taken. It is common ground that it is or should be the practice of the court to explain to a surety exactly what the obligations are, to ensure that the surety understands the obligations that he is to undertake, to ensure that he is nevertheless still prepared to undertake the obligations and that he is worth the sum involved, net of his debts, and to warn him of the consequences of future events, which include possible imprisonment if the defendant fails to appear when required to. Rule 19.24 of the Criminal Procedure Rules 2005 states:
"Forfeiture of recognizances in respect of person...
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