R Lahooty v Kingston Crown Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 02 August 2013 |
| Neutral Citation | [2013] EWHC 2895 (Admin) |
| Date | 02 August 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8103/2013 |
[2013] EWHC 2895 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Foskett
CO/8103/2013
Mr Sean Kivdeh and Mr Andreas O'Shea (instructed by JVA Law Solicitors) appeared on behalf of the Claimant
Ms Heidi Stonecliffe (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
This is an application for judicial review of a decision made by Her Honour Judge Kent at Kingston upon Thames Crown Court on 24 May of this year refusing bail to the claimant pending a retrial on the indictment she faced. I will say more about the circumstances in which the retrial was ordered shortly.
The claimant is an Iranian national, who it is said came to the United Kingdom in June 2007. It is said that she has leave to remain in the country, although no specific evidence to that effect has been placed before me. However, I am prepared to proceed on that basis for present purposes. She is aged 28 and of previous good character.
She was arrested in relation to the allegations she faces on 17 October 2012, and has been remanded in custody thereafter. In due course, she faced an indictment, together with four other defendants, alleging as against her and others a conspiracy to facilitate the arrival of asylum seekers in the United Kingdom. As I understand it, the essential issue between her and the Crown is whether what she did was part of a conspiracy and/or whether it was for financial gain. She accepts, as I understand it, that she acted as a chaperone for four specific asylum seekers. She travelled to Spain and Turkey to meet them and she accompanied them through the airport when they arrived in the United Kingdom, she also having booked their flights into the UK. I imagine she accepts that doing that was illegal and that she is guilty of a substantive offence or substantive offences. As I have said, however, she contests the conspiracy allegation and any suggestion that what she did was for financial gain.
Whilst I deliberately say nothing about what the sentencing consequences may be in relation to the resolution of that dispute, which is an issue to which I will return shortly, it is at least arguable that a finding that she was part of a conspiracy with a view to financial gain could be more serious than simply involvement in four separate instances of facilitation and might attract a higher sentence than the sentence imposed for one or more substantive offences. It is, I think, accepted that even conviction on substantive offences would almost certainly attract an immediate prison sentence. That would seem to be confirmed by cases such as R v Le and Stark [1999] 1 Cr App R (S) 422; Attorney General's References Nos 37, 38 and 65 of 2010 (Khan & Ors) [2011] 2 Cr App R (S) 31; and R v Oliveira & Ors [2013] 2 Cr App R (S) 4. To that list could be added a case called R v Rotsias, heard recently by a division of the Court of Appeal Criminal Division, of which I was a member, which, when reported in due course, reflects on sentences in this general area.
It is perhaps important to point out that in its initial response to this application, the Crown, through Ms Heidi Stonecliffe, a senior Crown advocate, makes it clear that it is not and never has been the Crown's case that the claimant is the principal conspirator. However, the case sought to be advanced at this stage is that she is part of the wider conspiracy alleged.
I will revert to the issue of the likely sentence to the extent that it is relevant shortly, but I need to mention the aborted trial and the proposed retrial. The trial before Judge Kent commenced on 8 April, and the jury were discharged in the seventh week of the trial. I understand that this was because the trial was taking much longer than had been predicted by the prosecution and the existing jurors were not happy to stay longer than they had agreed to stay and been told that they would be required to stay at the outset of the trial. It is undoubtedly the case that the need for the termination of that trial had nothing at all to do with the claimant, and it is most unfortunate that an event such as this occurred, not merely for the claimant but doubtless for the other defendants and the prosecution witnesses also.
The retrial has been set for 6 January 2014, some five months hence, with a time estimate of four months. Mr Kivdeh, who represented the claimant at the trial and before me today, says that if the claimant remains in custody until the end of the four-month trial, she will have served the equivalent of a sentence of 3 years and 2 months or thereabouts by the time the judge passes sentence, on the assumption of a conviction. Leaving aside other matters, he has argued, certainly in his written submissions, that the claimant is likely to face a sentence of about 3 years and could have served a sentence of perhaps effectively longer than that by the time the sentence is imposed.
One criticism that he makes of the judge's ruling is the way she dealt with this issue. What she said was that there was a reasonable prospect, if the claimant was convicted on a full facts basis, that she would face a sentence that would be longer than the equivalent of the time she had spent on remand at the time of the bail application to which the present judicial review application relates. By then, of course, she had spent just over seven months in custody. Mr Kivdeh says that the judge should have looked at the position as it would be at the end of the retrial because that is the important date for this purpose.
There was considerable debate about the likely length of sentence before the judge and indeed in the written submissions put before me prior to today's hearing. But I do not consider that the likely length of sentence is a matter upon which I should pass comment. The judge was well placed to make an appropriate assessment of an issue such as this, already having heard a great deal of the case. If the challenge in this application was to that assessment, then within the parameters that I must consider this application I would not be disposed to interfere with the judge's decision. I do not necessarily say that the issue of sentence is an irrelevant matter when considering an application for bail, but the only way in which I could interfere would be if there was a plain misdirection on the relevance of the issue. I will return to this matter shortly.
There has also been a considerable amount of debate in the written submissions concerning the strengths and weaknesses of the prosecution case against the claimant, although perhaps less so in the oral submissions today. Assessing that is always a difficult matter, but it is an assessment ordinarily made before trial and before any of the evidence has been tested. That cannot be said in this case: the judge heard seven weeks' worth of evidence and must have been well familiar with much of the case, even though, as I understand it, some part of the prosecution case had still to be heard. What the judge said about this when giving her ruling on the bail application was as follows:
"I am not in a position to undertake a full assessment of the strength of the Crown's case. I have heard the evidence in this case. I have not had full access at this stage to the text messages or the Skype evidence which is said to be part and parcel of the overall evidence. However, on the evidence I have heard, I am satisfied that there is sufficient...
To continue reading
Request your trial