R (Stevens) v Truro Magistrates' Court

This is an application by Diana Mary Stevens (whom I shall call "Mrs Stevens") for judicial review of a decision by the Truro Magistrates' Court on 5th June 2000. The record of the Court of that date shows that it was adjudicated that her recognisance of £100,000 should be estreated and that certain deeds, unspecified in the order, might be released pending sale by undertaking (meaning "on an undertaking being") given by UK solicitors only. It is common ground that an order in this form was inappropriate, because Mrs Stevens had never given an recognisance, but at most only given or participated in the giving of security. The order was subsequently amended to show that security of £100,000 was estreated, It appears to me that the inappropriate drafting of the order may have been due to a more fundamental defect in the order.

Mrs Stevens is the mother of a man named Nicholas Stevens who was arrested by the police for various offences of fraud towards the end of 1998. He owned a property called Pewsey House (also known as Porth Kea Chapel), in Cornwall. Pewsey House is registered land. It was subject to a registered mortgage in favour of his mother to secure a loan of £56,000 she made to him in 1994 for the purchase of the property. The loan was initially made without interest, but she contends that when she and her husband went to live permanently in France in 1996, she exercised her contractual right under the mortgage to give him three months' written notice requiring him to pay interest on the amount of the loan at an annual rate of 6% payable in arrears on the usual quarter days.

After Nicholas Stevens was arrested, he first appeared before the Truro Magistrates' Court on 7th January 1999. The prosecuting solicitor objected to bail on the basis that he was accused of an imprisonable offence and there were substantial grounds for believing he would abscond from the jurisdiction of the court. He was in the process of selling his home and he had no family in this country. His parents lived abroad, and he had business interests abroad. Once his home was sold, he would have no financial or family ties with this country.

Mr Stevens's solicitor told the justices that his client owned Pewsey House, which was valued at £120,000, subject to his mother's charge. He said that his client's father was in court and that his client's mother, who is the present applicant, was prepared to stand surety for his client in the sum of £100,000. He said that her charge was worth £56,000 and that she had £65,000 in investments. He produced a letter from her investment brokers which evidenced the value of her investments and her willingness to pledge them to the court. He also produced a letter from her solicitors, Messrs Dixon & Templeton of Fordingbridge, confirming the existence of her mortgage of £56,000 over Pewsey House. They said that her charge was registered and that they were holding the charge certificate. The justices refused to grant bail on the basis suggested, and Mr Stevens was remanded in custody.

When the matter came back before the justices four days later the prosecution again opposed bail on the same basis. On this occasion, Mr Stevens's solicitor said that his client would deposit the title deeds of Pewsey House as surety for the sum of £100,000 to secure his release from custody. He said that Mrs Stevens's solicitors held the title deeds and that they would deposit them at a local magistrates' court. The property was up for sale, and if it was sold the security could then be cash. He went on to say that Mrs Stevens and her husband were not from a wealthy background and that if their son absconded this would amount to a considerable loss. He would also lose his inheritance and the respect of his parents.

On this occasion the court's notice of bail conditions shows that Mr Stevens was granted bail subject to three requirements: to surrender his passport to the court, to reside at Pewsey House and to deposit the title deeds to Pewsey House at Lyndhurst Magistrates Court. No reference was made to any sum being fixed as the value of his security. It appears that Mrs Stevens's solicitor lodged his client's charge certificate in relation to that property at the Lyndhurst court on the same day, and her son was duly released on bail.

On 8th February 1999 a new notice of bail conditions was issued. The relevant requirement now read:

"To deposit the title deeds to Pewsey House….at Court, or in lieu of the title deeds to Pewsey House the sum of £100,000 by bankers' draft or telephone transfer. The title deeds already deposited at the Lyndhurst Magistrates Court are not to be released by the court until the sum of £100,000 is deposited at Court."

Two days later Messrs Dixon & Templeton, still acting as Mrs Stevens's solicitors, disclosed their understanding of the matter in a letter they wrote to the Southampton and New Forest Magistrates' Court to the effect that their client had "agreed to provide security for bail for her son".

Mr Stevens made three more appearances at the same court, on 8th March, 19th April and 26th April. On each occasion bail was renewed on the same terms subject to one alteration necessitated by the physical transfer of the "title deeds" from the court at Lyndhurst to the court at Truro, and another relating to a change in his required place of residence. On the last of these occasions he was remanded to appear again on 24th May 1999.

On 29th April 1999 Messrs Dixon & Templeton, now acting on behalf of Mr Stevens, wrote to the clerk to the justices at Truro in the following terms:

"We are writing to you about the sale of this property, where exchange of contracts is imminent, and completion of the sale could take place as early as Friday 7th May. To enable us to complete the sale on whatever turns out to be the due date, we should be grateful if you would return to us the Charge Certificate, at the same time … treating this letter as our undertaking to remit to you the sum of £100,000 from the proceeds of sale so as to underpin the conditions of our client's bail."

Six days later, on 5th May, those solicitors on behalf of Mr Stevens wrote another letter to the clerk to the justices in these terms:

"We regret to tell you that due to a change of circumstances we no longer need the deeds of [Pewsey House] and we should be grateful if you would please retain them in your office and not send them to us as requested in our letter to you of 29th April 1999.

For the same reason, re failure of the sale to proceed, we shall have to ask you to treat the undertaking in our letter as cancelled."

The following day the solicitors wrote again, confirming a telephone conversation which they had had with a member of the staff of the court. The material part of this letter reads:

"… we confirm our understanding that Mr Stevens has now absconded and therefore it appears that the sale which was previously envisaged, cannot now take place. As you have not been able to return the Charge Certificate to us and doubtless will now not be willing to do so and as our undertaking in our letter of the 29th April 1999 was conditional on the return of the deeds, we would be grateful if you would now confirm that we are released from the undertaking."

On 24th May 1999 Mr Stevens failed to surrender to custody. His solicitor attended court. The court issued a warrant for his arrest not backed for bail. It also directed that the whole of the security should be estreated, and that the deeds to Pewsey House should not be released save on payment of £100,000. Mrs Stevens was not present or represented in court on this occasion, and no notice had been given to her of the possible forfeiture of the security. The court directed that she should be notified of its order.

On 8th June 1999 the clerk to the justices therefore wrote to Mrs Stevens at her address in France, copying his letter to Messrs Dixon & Templeton. The relevant part of his letter read:

"The Court further ordered that the surety which had been offered as a condition of his bail be estreated. The effect of this is that the house is directed to be sold, with the proceeds from the sale to be taken by the court. If there is any amount left after the completion of the sale taking into account the sum of £100,000 together with solicitors and estate agents fees, this will be forwarded to Dixon & Templeton solicitors."

Messrs Dixon & Templeton replied on behalf of Mrs Stevens on 9 June 1999. They disputed that the security given to the magistrates' court extended to her mortgage, and contended that only her son's interest in Pewsey House could have been forfeited. Since he had now absconded and vacated Pewsey House he had in effect surrendered the property to their client as mortgagee in possession, and she now wished to sell the property and realise her security. In subsequent correspondence, the clerk to the justices made it clear that, as indeed appears from the court notices in question, Nicholas Stevens's bail had been subject to a security, not a surety.

On 3 March 2000 Mrs...