Farhia Ali v Crown Court at Kingston
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley,Lord Justice Holroyde |
| Judgment Date | 19 October 2017 |
| Neutral Citation | [2017] EWHC 2706 (Admin) |
| Date | 19 October 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4712/2017 |
[2017] EWHC 2706 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Holroyde and Mr Justice Ouseley
CO/4712/2017
APPEARANCES
Ms C Antenen (instructed by G.T. Stewart Solicitors) appeared on behalf of the Claimant.
THE DEFENDANT was not present and was not represented.
This is an application for permission to apply for judicial review and, if permission is granted, for the substantive application to follow immediately in the normal way of a rolled up hearing. The challenge is to the decision of His Honour Judge Lodder QC, the Recorder of Kingston, made on 10 th October 2017, to remand the claimant in custody while a psychiatric and a pre-sentence report were obtained for a sentencing hearing fixed for 27 th November 2017.
This decision followed the conviction of the claimant after a trial of arson being reckless as to whether life was endangered contrary to s.1 of the Criminal Damage Act 1971. On 13 th October Mr Justice Julian Knowles ordered the rolled-up hearing for today. It may be the speed with which the hearing has come on that has meant that we have heard only from Mrs Antenen for the claimant and there has been no appearance by the Crown Prosecution Service although they were served. It may also be the reason why we did not receive the transcripts of the hearing before Judge Lodder until after 10.30 a.m. this morning.
A little background is necessary. The offence was committed on 4 th March 2017 when the claimant had four children aged up to seven in the two-bedroom house. She was arrested that same day, charged on 5 th March, and remanded into custody. On 15 th March she was granted bail by Kingston Crown Court subject to various conditions, one of which was a no-contact condition with the children, as well as various restrictions on travel. The claimant is a Somali national. However, the bail conditions were varied in response to the demands of her pregnancy which led to the birth of her fifth child on 5 th August 2017. She did not breach the terms of her bail.
Trial commenced on 2 nd October before Judge Lodder and a jury. The guilty verdict was returned on 9 th October. After the jury returned the verdict of guilty, there was discussion as to the further conduct of the sentencing process. He required a pre-sentence report and a psychiatric report. The verdict came back quite late in the day and the judge expressed concern that the claimant might abscond. He was also concerned to know what social services' view was about the child. The matter was put back until 10 th October. Meanwhile, the claimant was remanded in custody.
On 10 th October, there was a substantial hearing into the application for bail. It involved evidence from two social workers who had care of the claimant's children. Whatever other criticisms Mrs Antenen has of Judge Lodder, there is no doubt that he gave careful consideration to all the evidence she wished to call and the submissions that she wished to make. The challenge contends that the judge, however, decided wrongly that s.4 of the Bail Act should not apply during an adjournment for sentencing reports, that he did not apply the test of whether there was a substantial risk of further offending or absconding, that he failed to address the welfare of the children, in particular, the welfare of both claimant and baby as a result of the fact that she was still breastfeeding the baby.
The first issue which arises, however, which may have come as something of a surprise to Mrs Antenen is whether the court has jurisdiction at all to consider this application for permission to apply for judicial review. Section 29(3) of the Senior Courts Act 1981 provides:
“In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting, or quashing orders as the High Court possess in relation to the jurisdiction of an inferior court.”
The question therefore is whether the decision of the judge in relation to bail between the verdict of the jury and the sentencing decision was a matter relating to trial on indictment.
In the absence of authority, I would take the view, as a matter of impression and of analysis, that a decision on bail between verdict and sentence was obviously a decision relating to the trial on indictment. Indeed, Mrs Antenen was disposed to take the same view when the question was put to her directly. The decision is very much an integral part of the trial process involving the question of what is to happen between verdict and sentence. It requires the exercise by the trial judge of his judgment pursuant to a statutory power in the Bail Act to reach a decision on whether or not to grant or continue bail. It is not collateral at all. And it is a decision which is bound to be informed by the knowledge which the trial judge has attained of the issues and of the defendant and his or her circumstances during the course of the trial.
The issue is, however, not entirely free from authority. Properly understood, in my judgment, the authorities do not assist Mrs Antenen's case. Her case depended very much on the decision of Holman J in R (on the application of Rojas) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin). If that case is correctly decided, it does at least afford some support to Mrs Antenen's contention that the court does have jurisdiction. The problem for her is that it does not address s.29(3) of the Senior Courts Act. It merely refers to an earlier case, M v Isleworth Crown Court [2005] EWHC 363 (Admin) which does address s.29(3) as well as another jurisdictional issue. It is to that latter case that I shall turn first.
In that case bail had been refused by a circuit judge upon the transfer of the case to the crown court. The bail decision thus came at a very early stage in the proceedings before the crown court. Maurice Kay LJ, with whom Moses J agreed, said at para.7:
“Two jurisdictional issues require comment, although there is no dispute about them in the present case. The first is the exclusion of judicial review in respect of ‘matters relating to trial on indictment’ by s.29(3) of the Supreme Court Act. It is common ground, and I accept, that a decision as to bail at an early stage of criminal proceedings does not relate to trial on indictment as that expression has been interpreted in cases such as R v Manchester Crown Court ex parte DPP [1994] 98 Cr App R 461 HL…”
The divisional court therefore took the view that because the refusal of bail had been made at an early stage of criminal proceedings, the challenge to the decision by way of judicial review was not caught by the exclusionary provision of s.29(3). However, the court then went on to consider the next stage, which arises only where the exclusionary provision does not apply, and so the court has to consider whether it has jurisdiction in relation to the bail decision by the crown court. The existence of this second jurisdictional decision may not have been fully appreciated in the decision in Rojas. What Maurice Kay LJ said was that he had no doubt that the jurisdiction in relation to bail, once it had been found not to be excluded by s29(3), should be exercised:
“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 more protracted and expensive remedy of common application”.
That...
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