R (Thomas) v Greenwich Magistrates Court
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 2009 |
| Neutral Citation | [2009] EWHC 1180 (Admin) |
| Docket Number | CO/4215/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 May 2009 |
[2009] EWHC 1180 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Hickinbottom
CO/4215/2008
Mr S Field (instructed by G T Stewart) appeared on behalf of the Claimant
The Defendant did not attend and was not represented
1.1. MR JUSTICE HICKINBOTTOM: This is an application for judicial review of a decision of District Judge Wallis sitting at Greenwich Magistrates' Court on 28 March 2008, who, having found that the applicant, Royston Thomas, had breached his bail conditions, remanded him in custody. It is brought with the permission of Charles J.
2.1. The facts upon which the application is brought are as follows. In January 2008 the applicant was arrested for assault occasioning actual bodily harm, the allegation being that he, with a co accused, assaulted a neighbour. There seems to have been a considerable history to this neighbour dispute with mutual assertions that others had at various times been the aggressors.
3.1. The applicant's first appearance at Greenwich Magistrates' Court was on 18 January 2008, when he was remanded in custody. A bail application failed on his second appearance on 25 January, but a further application to Blackfriars Crown Court on 29 January was successful. Bail was granted on various conditions, including a condition as to residence and a condition not to enter Hazel Grove Estate or go within one mile of it. On 16 February the Magistrates' Court committed the applicant for trial to the Crown Court. Bail was continued.
4.1. On 13 March the applicant was brought before the Magistrates' Court for a breach of bail, which was found proved, but he was readmitted to bail on the same terms. On 28 March he was brought before District Judge Wallis at the Greenwich Magistrates' Cour for an alleged second breach. The District Judge found the breach proved and remanded the applicant into custody. That, of course, is the challenged decision to which I will return.
5.1. However, briefly to complete the history, on 1 April at the Crown Court the applicant pleaded not guilty to the assault. On 4 April at the Crown Court His Honour Judge Pillay said he would grant bail if an address out of London could be found. Bail was eventually granted on 8 April, conditional upon the applicant residing at an address in Wolverhampton and not to go within the circle of the M25, save for court appearances and meetings with his legal team. Although not relevant to this application, I understand that the applicant was eventually found not guilty of this offence.
6.1. However, although those events were over a year ago, it is submitted on the applicant's behalf that this application is still not empty, because he has on his record a breach of bail conditions which he wishes to have removed because of its potentially prejudicial effect in the future. No doubt that is the reason Charles J granted permission.
7.1. Returning to the 28 March 2008 hearing, the prosecution relied upon a statement of PC Moheeputh which said that he saw the applicant the previous day at 3.50pm in a stationary car outside the named estate but within the defined exclusion zone in the bail condition. The statement said that the police officer drove past the car and the applicant was in the front seat wearing sunglasses and a hooded top. The officer saw him for about five seconds from five feet away with an unobstructed view. The officer later stopped the car, driven by a Mr Mark Goulborne and there was no passenger, but, the officer said, the passenger seat was still warm. PC Moheeputh was not present at the hearing to give oral evidence or be cross examined.
8.1. At the hearing, the applicant, his brother and Mr Goulborne gave evidence, consistent as between itself that the passenger in the car when observed by the police officer was the applicant's brother, who bore a resemblance to him. The brother left the car when spotted by the police because he did not want to be stopped by them for his own reasons. The District Judge found, on the balance of probabilities, that it was the applicant in the car, he was in breach of his bail conditions, and he revoked bail remanding the applicant in custody.
9.1. The application for judicial review is made on three substantive grounds. First, the judge erred in allowing the prosecution to prove their case by adducing a written hearsay statement preventing a proper evaluation of the quality of that evidence. The error, it is submitted, was compounded by the fact that that evidence related to identification. Second, he erred in refusing to allow the defence advocate to make representations about the evidence to highlight the inherent problems of identification evidence generally, and in particular in the circumstances of this case. Third, he erred in failing to invite representations following his factual finding of breach as to whether it was in any event reasonable to refuse or readmit bail.
10.1. I can usefully deal with the first and second grounds together. The bail jurisdiction being exercised by the District Judge was under section 7(5) of the Bail Act 2003 which provides:
“A justice of the peace before whom a person is brought under subsection (4) above may, subject to subsection (6) below, if of the opinion that that person
(a)is not likely to surrender to custody, or
(b)has broken or is likely to break any condition of his bail
remand him in custody or commit him to custody, as the case may require, or alternatively, grant him bail subject to the same or to different conditions, but if not of that opinion shall grant him bail subject to the same conditions (if any) as were originally imposed.”
Section 7(5) requires the court to adopt a two stage process, succinctly, and in my respectful view helpfully and accurately, set out by Gage J in R(on the application of Paul Vickers) v West London Magistrates' Court [2003] EWHC 1809 (Admin) at [16], where he says:
“There is no dispute between the parties that section 7(5), in effect, involves a two stage operation to be carried out by the justices. First a decision must be made as to whether or not there has been a breach of a condition. If there has been no breach of a condition then the bailed person is entitled to be admitted to bail on precisely the same conditions in other words, bail continues. If the justices are of the opinion that there has been a breach of the condition, then they must go on to consider whether or not the bailed person can be admitted again to bail or must be remanded in custody that is the second stage.”
11.1. I shall return to the second stage when I consider the third ground of the application. But in respect of the first stage, Mr Field today submitted that the District Judge erred in relying upon the hearsay evidence of the police officer as he did.
12. I do not find that submission compelling. It is well established law that the bail jurisdiction is not the equivalent of a criminal charge and that strict evidential rules need not be applied. In particular, oral evidence is not required. Written evidence may be used. In considering whether he is “of the opinion that that person… has broken… any condition of bail”, a justice is entitled to rely upon written hearsay material, so long as the material is properly...
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