R (on the application of Tyrone Cardin) v Birmingham Crown Court and Another The Crown Prosecution Service and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 11 August 2017 |
| Neutral Citation | [2017] EWHC 2101 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: Co/3404/2017 |
| Date | 11 August 2017 |
[2017] EWHC 2101 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett DBE
THE VICE PRESIDENT OF THE CRIMINAL DIVISION
The Hon Mrs Justice Andrews DBE
Case No: Co/3404/2017
and
Stephen Cragg QC (instructed by Jonas Roy Bloom) for the Claimant
Tom Little (instructed by the Crown Prosecution Service) for the First Interested Party
Hearing date: 9 August 2017
This is the judgment of the Court.
The Claimant is currently on remand in HMP Winson Green awaiting trial for four offences of robbery, one offence of assault with intent to rob, one offence of dwelling house burglary and one offence of theft from a motor vehicle. He seeks permission to judicially review (i) the issue by the First Defendant, Birmingham Magistrates' Court, of a warrant authorising his detention for 48 hours pending an appeal by the prosecution against a decision by the Deputy District Judge (Magistrates Court) ("the DDJ") to grant him bail and (ii) the decision by Birmingham Crown Court to allow that appeal and direct that he be remanded in custody pending trial. He claims that because the prosecution failed to serve written notice of appeal upon him within the time prescribed by the Bail (Amendment) Act 1993, or at all, the Crown Court had no jurisdiction to hear the appeal. He also contends that the Magistrates' Court were under a positive duty to order his release from custody when the time for service of the written notice of appeal expired.
As the matter involves the liberty of the subject and required urgent consideration, and the application for permission would necessarily canvass the same arguments as the substantive claim, directions were given for an expedited "rolled-up" hearing.
As the following narrative will demonstrate, the Claimant is seeking to take advantage of a minor administrative error in the Magistrates' Court office which caused him no prejudice whatsoever.
The Claimant and his two co-defendants, his sister Rene Cardin and a woman named Molly Evans, were charged with the offences on 21 June 2017. All three were remanded in custody at the Police Station. Their first appearance was at the Birmingham Magistrates' Court on the same day. The DDJ sent their cases to the Crown Court for a Plea and Trial Preparation Hearing on 19 July. Each of the defendants applied for bail. Those applications were opposed by the prosecution, but the DDJ granted them bail subject to various conditions.
Section 1 of the Bail Amendment Act 1993 ("the 1993 Act") provides, so far as is relevant, as follows:
1. Prosecution right of appeal
(1) Where a magistrates' court grants bail to a person who is charged with … an offence punishable by imprisonment, the prosecution may appeal to a judge of the Crown Court against the granting of bail.
….
(4) In the event of the prosecution wishing to exercise the right of appeal set out in subsection (1) above, oral notice of appeal shall be given to the court which has granted bail at the conclusion of the proceedings in which bail has been granted and before the release from custody of the person concerned.
(5) Written notice of appeal shall thereafter be served on the court which has granted bail and the person concerned within two hours of the conclusion of such proceedings.
(6) Upon receipt from the prosecution of oral notice of appeal from its decision to grant bail the court which has granted bail shall remand in custody the person concerned, until the appeal is determined or otherwise disposed of.
(7) Where the prosecution fails, within the period of two hours mentioned in subsection (5) above, to serve one or both of the notices required by that subsection, the appeal shall be deemed to have been disposed of.
(8) The hearing of an appeal under subsection (1) …. above against a decision of the court to grant bail shall be commenced within forty-eight hours, excluding weekends and any public holiday (that is to say, Christmas Day, Good Friday or a bank holiday) from the date on which oral notice of appeal is given."
There is nothing in the statute which gives any assistance as to what is meant by " the conclusion of the proceedings in which bail has been granted" even though that is the point at which the two hours for service of the written notice of appeal starts running. In a case involving multiple defendants who are jointly charged with the same criminal offences and appearing before the court on the same occasion, there is some force in the argument that the proceedings have not concluded until the court has finished dealing with all the defendants. However, that was not the way in which the Associate Prosecutor treated the proceedings in the present case.
The hearing of the bail applications made on behalf of the Claimant and his sister took place before the short adjournment on 21 June 2017. After the DDJ had granted them bail, the Associate Prosecutor, Mr Purser, gave oral notice of an intention to appeal the granting of bail in respect of both defendants at 12.54pm. The Claimant and his solicitor were both present in court when the notice was given, and as required by the statute, the oral notice was given before the Claimant was released from custody. The Claimant therefore knew that the prosecution intended to appeal against the grant of bail and, as he was present when Mr Purser articulated the Crown's objections to his application for bail, he would also have had a good idea of what the grounds of appeal were likely to be.
In accordance with s.1(6) of the Act, the Magistrates' Court was obliged to remand the Claimant in custody until the appeal was determined or otherwise disposed of. The normal procedure would be for the court to issue a warrant authorising the detention of the defendant for two hours, that being the period within which the prosecution has to serve the written notice of appeal on the defendant. In practice, the individual representing the Crown at the bail hearing will probably not have the authority to make a decision about whether to appeal, and the oral notice would preserve the Crown's position until such time as that decision could be taken by someone who had. In the present case Mr Purser checked with someone of requisite seniority who confirmed that an appeal should be pursued.
At 1.56pm Mr Purser gave written notice to the relevant court officer at the Magistrates' Court of the prosecution's intention to appeal the granting of bail to the Claimant and Rene Cardin.
In the normal course of events a defendant would either be served with the written notice of appeal in the cells or, as was the plan in the present case, brought back into court for service to be effected. Unfortunately, due to an administrative error, the court office generated a remand warrant for the Claimant which stated, incorrectly, that the written notice of appeal had been served on him at 12.54pm. The remand warrant is addressed to the authorised officers of the prisoner escort contractors and the Governor of the nominated prison establishment (in this case, HMP Winson Green). The order reads as follows:
" The defendant is to be taken to the nominated prison establishment and held in custody until any further order of this court or the Crown Court. Unless the defendant waives his right to appear, he is to be taken before the Birmingham Crown Court at a date and time to be notified."
The bail hearing for the third of the defendants, Molly Evans, commenced at 2pm. Once again, bail was opposed. It is unclear why she was dealt with separately from her co-defendants; it is possible that there was insufficient time to hear her bail application before 1pm, but there may have been some other reason. At 2.20pm, after the DDJ had granted her conditional bail, Mr Purser gave oral notice that that decision would also be appealed.
At 2.33pm both Rene Cardin and Molly Evans were served with the written notices of appeal. It appears that it was only at that juncture that it was discovered that the Claimant had already been collected by the prison escort contractors and was in the process of being transferred to prison. Inquiries by the court associate revealed that the reason for this was that the warrant had incorrectly stated that written notice had already been served on him. Mr Jonas, the Claimant's solicitor, demanded that the Magistrates' Court should cancel the warrant, which it refused to do.
Mr Purser was keeping notes of these events electronically as they unfolded. His note of what happened reads as follows:
" Written notice of appeal handed to Rene and Molly at 14.33. Court informed that Tyrone has already been taken to prison! Apparently the court office generated a warrant for him after the morning session to say (incorrectly) that written notice had already been given. I tell the court that Tyrone needs to be returned to court ASAP (doesn't appear likely) – the other option is to have court fax a copy of the written notice to Winson Green with instructions that it be served on D as soon as he arrives. Copies of the appeal notice are served on all three Def sols in court."
The last sentence does not paint the full picture. Mr Purser gave copies of the written notice to the solicitors representing Rene Cardin and Molly Evans, but when he tried to give a copy to Mr Jonas he refused to take it, stating that he had no instructions to accept service on behalf of his client. Mr Purser told him that the document was "for information only" and Mr Jonas then accepted a copy of...
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