R (KS) v Northampton Crown Court and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 07 May 2010 |
| Neutral Citation | [2010] EWHC 723 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 May 2010 |
| Docket Number | Case No: CO/11659/2009 |
[2010] EWHC 723 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MANCHESTER CIVIL JUSTICE CENTRE)
Before: Mr Justice Langstaff
Case No: CO/11659/2009
Mr Hugh Southey Q.C. and Mr Andrew Scott of Counsel (taking Judgment) (instructed by Murria's Solicitors, Birmingham) for the Claimant
Mr Nicholas Chapman of Counsel (instructed by Crown Prosecution Service Revenue and Customs Division) for the Interested Party
Defendant – Not Represented.
Hearing dates: 15 th March 2010
MR JUSTICE LANGSTAFF:
The claimant is in custody on remand. He is due to face a retrial by Judge alone. This follows allegations that a jury had been tampered with whilst deliberating upon his guilt on serious charges of involvement in defrauding the Customs and Excise. Until the jury tampering came to light, the claimant had been on bail. Immediately HHJ Alexander QC before whom the trial was being conducted became aware there had (in his view) been jury tampering, he revoked the claimant's bail.
Accordingly, the allegation of jury tampering, once accepted, had three consequences. First, HHJ Alexander QC discharged the jury. Second, he determined there should be a retrial before a judge alone. Third, the claimant lost his liberty pending that retrial.
He appealed against the decision by HHJ Alexander QC that there should be a trial before a judge alone on the basis that there had been jury tampering. The Court of Appeal (The Lord Chief Justice presiding) were satisfied so that they were sure that jury tampering had occurred. ( R v KS [2009] EWCA Crim 2377). The court directed that HHJ Alexander QC could not himself continue with the trial, and remitted to the Presiding Judge of the Midland Circuit the decision whether the trial should before a jury, or judge alone. The court did not determine any issue of bail.
On 15 th February this year, Mr Justice Flaux, the Presiding Judge of the circuit, sitting in the Crown Court decided that there should be a retrial by judge alone. He refused bail. The claimant seeks to quash the decision as to bail by way of Judicial Review.
A number of legal issues were common ground before me. First, it was accepted by the interested party (the Crown Prosecution Service) for whom Mr Chapman appeared that the Administrative Court had jurisdiction to review the decision of a Crown Court judge in respect of bail at least where no trial was currently in progress. K S S had been one of a number of defendants whose cases I heard in October, when granting permission for a Review of what was then a decision of a circuit judge as to bail. I expressed reservations about whether this court had jurisdiction in respect of the refusal by HHJ Alexander QC to admit the claimant to bail, given that he was then undergoing trial, having been in charge of the jury and before a judge who proposed to continue the trial himself without there being a jury. It seemed to me that the decision might “relate to a trial on indictment” and if so, there was no jurisdiction. However, the decision in respect of which review is now sought is that of Flaux J., taken when the claimant is no longer in the middle of a trial. In M v Isleworth Crown Court [2005] EWHC 363 (Admin) a Divisional Court (Maurice Kay LJ. presiding) held that a decision as to bail at an early stage of criminal proceedings did not relate to trial on indictment. Although the expression “early stage of criminal proceedings” has a penumbra of uncertainty around it (see per Collins J. in R (Shergill) v Harrow Crown Court [2005] EWHC 648 (Admin) paragraph 6) it seems to me that Mr. Chapman's concession that this court has jurisdiction is nonetheless rightly made. The issue is significant, procedural, and does not “relate to trial on indictment” as that phrase has been interpreted in this context.
Trial is unlikely to occur before October this year. A decision as to bail by a Crown Court Judge is in principle reviewable, although the parties agree (as, emphatically, do I) that Parliament having decided to remove the right of application to the High Court in respect of any bail decision it will only be in exceptional cases that this court will consider it right to review the decision of a crown court judge in whom is vested the relevant powers.
Secondly, Counsel are agreed that it is not for this court to consider the decision as to bail on its merits (and, it follows, it has no power to make a fresh bail decision). The issue is not the merits of the refusal of bail, but the process by which the application for bail has been dealt with: see R (Malik) v Central Criminal Court [2007] 1 WLR 2455, a decision of the Divisional Court presided over Sedley LJ.
The aspect of the procedure criticised before me to the extent necessary for this court to interfere in exercising a jurisdiction which is only to be exercised sparingly is said to be the failure of the court to find any proportionate means of safeguarding and advancing the claimant's interests where matters were held against him in respect of his bail of which he had not been informed, with the result that he could not meet them although his liberty was at risk.
When HHJ Alexander QC heard the evidence as to jury tampering, which he accepted as establishing that that had taken place, he did so in private. He ordered only partial disclosure to the claimant. The Court of Appeal reviewed that decision, and concluded that it was properly based. That court ordered some further disclosure. But the Lord Chief Justice expressly recognised that what was disclosed would be insufficient on its own to satisfy a Tribunal so that it could be sure that there had been jury tampering. The closed material, which the court had reviewed, however was afforded.
The issue before the Court of Appeal was not that of the bail decision taken by HHJ Alexander QC. As to that, I am told by Counsel that the court noted that it was subject to Judicial Review, and left it as a matter for this court. It did consider whether it was open to the judge to reach the conclusion he did, however, as to the tampering and whether in the light of that conclusion it was open to him to continue to sit as Tribunal alone. As to the former, they confirmed his decision. As to the latter, they did not. Thus what was remitted to Flaux J. was the question whether there should be trial by judge alone pursuant to Section 44 Criminal Justice Act 2003. He heard and determined that issue applying the principles outlined by the Court of Appeal in R v T [2009] EWCA Crim 1035. Immediately after the making of the Section 44 Order; and appearing to occupy a subsidiary role in the day's proceedings although it had been anticipated on paper, the claimant made a further application for bail. The prosecution objected on two grounds – the risk of absconding (in the light of the previous jury tampering) and the risk of interference with the course of justice. Flaux J. agreed with those objections, but went on to indicate that he was particularly concerned, from everything that he had seen in relation to the claimant, that he was somebody who was determined by any means at his disposal to avoid the conclusion of a trial with a conviction of guilty against him and that, in those circumstances, if released on bail there remained a serious risk that he would abscond and a risk that he might interfere with the course of justice (see transcript page 55 at paragraph G.)
No judge whom before a bail application has come since HHJ Alexander QC's ruling as to tampering has allowed a bail application. The list—HHJ Bray, Mr Recorder Creed (4 th December 2009) and Flaux J.—also includes myself, in a decision of 22 nd October 2009 when at the invitation of the parties I was invited to rule on the merits of bail. (No one asks me now to recuse myself on that basis). I understand that Mr Recorder Creed had not seen the closed material. Nor have I. However, Flaux J. had
It is plain from this history (and it is accepted by counsel before me) that Flaux J expressly based his bail decision upon material which significantly included the closed material.
Counsel both accept that Article 5 of the European Convention and Common Law and elementary common law principles of fairness apply to bail applications. They accept that the considerations raised by Lord Phillips of Worth Matravers in Home Secretary v AF (Number 3) [2009] UKHL 28 (“AF”) at paragraph 59 apply in principle to applications for bail. He was dealing with control orders. He referred to the decision of the Grand Chamber of the European Court in A v UK. [2009] 49 EHRR 29. He said it
“…establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or sources of the evidence forming the basis of the allegations.”
In A v UK, the European Court noted (paragraph 203) that the requirement of procedural fairness under Article 5(4):—
...“does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5(4) procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question.
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