R Uddin v Crown Court at Leeds
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Jeremy Richardson QC |
| Judgment Date | 11 July 2013 |
| Neutral Citation | [2013] EWHC 2752 (Admin) |
| Docket Number | CO/8397/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 July 2013 |
[2013] EWHC 2752 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Leeds Combined Court Centre
The Courthouse
1 Oxford Row
Leeds, West Yorkshire
England
LS1 3BG
His Honour Judge Jeremy Richardson QC
(Sitting as a Judge of the High Court)
CO/8397/2013
Mr A Barraclough (instructed by Chambers Solicitors) appeared on behalf of the Claimant
Mr J Sandiford (instructed by Crown Prosecution Service) appeared on behalf of the Interested Party
(As approved)
Introduction
The central question in this case is whether it is permissible to bring a judicial review claim in respect of a decision by a judge presiding over a trial upon indictment in the Crown Court to revoke the bail of a defendant in the midst of the trial.
That question brings section 29(3) of the Senior Courts Act 1981 into sharp relief. As far as can be ascertained by counsel and me, this issue has never been directly addressed by any court heretofore although there are a variety of cases where this issue as received tangential consideration. No previous case has been directly upon this point: namely whether a bail decision may be challenged by judicial review in the midst of a trial as opposed to before or, indeed, after the trial pending sentence or a retrial.
Ideally this issue should be resolved by a High Court Judge but in order to minimise the disruption to the extant trial it had to be resolved by me. That was a pragmatic decision. There was no High Court Judge in Leeds available to deal with this expeditiously and to send the case to London would have had a serious effect upon the ongoing trial.
I heard this case on Monday of this week (8th July 2013) at Leeds, when I decided: (i) the Administrative Court does not have jurisdiction to hear this judicial review claim, as the decision as to bail occurred during a criminal trial on indictment in the Crown Court; and, (ii) even if there was jurisdiction, the claim for judicial review is not properly arguable upon the merits, and permission to apply would not have been given.
These decisions were announced and communicated to the trial judge. This judgment gives my reasons for so deciding. The order of the court to be perfected after delivery of this judgment strikes out the judicial review claim for want of jurisdiction but will record, by way of recital, the alternative disposal in case I am wrong upon the central question.
The Judicial Review Claim
This claim for judicial review is made by Yasser Uddin (the claimant) who seeks to impugn a decision of His Honour Judge Christopher Batty made on 26th June 2013 in the Crown Court at Leeds, when he revoked the bail thereto enjoyed by the claimant. It is asserted the judge was Wednesbury unreasonable when he decided as he did. The case was listed for an oral permission hearing, but it occurred to me and to the Crown Prosecution Service (CPS) there was and remains a jurisdictional problem. The fact is that the claimant is in the midst of a trial on indictment in the Crown Court. Consequently section 29(3) of the Senior Courts Act 1981 is potentially engaged. Put simply: the High Court, and this court is part of the High Court, does not have jurisdiction to make any order in respect of the Crown Court "in matters relating to trial on indictment".
Before dealing with that matter directly it is important to set the scene with a brief summary of relevant events.
The Facts
The claimant is on trial in the Crown Court upon an indictment containing a count of conspiracy to import 160 kilograms of heroin into the United Kingdom via the postal system. There are a number of other defendants in the trial, some on bail, some not. I do not need to set out any details relating to them. The criminal trial is likely to take several weeks more. It commended five weeks ago.
The prosecution case is that the claimant (as a postman) used his inside knowledge to track and make arrangements for receipt of packages of heroin from Pakistan to the United Kingdom. The case is very serious and, if convicted, the claimant faces a very substantial prison sentence. Others played differing roles in the conspiracy. It is a serious and complex case. The claimant was charged in February 2012 and when he appeared before Bradford Magistrates' Court on 12th February 2012 he was admitted to bail with various restrictive conditions embracing residence, reporting to a police station and having no contact with named individuals. There has been no assertion of any breach of bail until 26th June 2013.
The trial commenced on 10th June 2013. It continues and was only briefly halted to allow for the hearing of this case on Monday last. On 26th June 2013 Judge Batty was alerted to an incident which I shall call the "car park incident" where it is asserted the claimant sought to threaten or intimidate junior counsel for the prosecution when he encountered her in a car park after court on 24th June 2013. Counsel furnished the judge with a witness statement, submissions were made and, having taken into account all the circumstances, he revoked the bail of the claimant.
The claim for judicial review was made on 3rd July 2013. It was placed before me on 4th July 2013. Having considered the matter and the circumstances of the case I decided that an oral permission hearing be convened, at which hearing the jurisdiction point could be resolved. It was impossible for the case to be conveniently heard by a High Court Judge as I have explained earlier in this judgment.
Two Important Matters
Two matters are of importance which need repetition and emphasis: (i) the claimant is on trial in the Crown Court upon indictment; and (ii) the bail decision to revoke the theretofore grant of bail was made in the midst of a trial on indictment (indeed during the fourth week of the trial).
Section 29(3) of the Senior Courts Act 1981
Section 29(3) of the 1981 Act provides:
"(3) In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make [mandatory, prohibiting or quashing orders] as the High Court possesses in relation to the jurisdiction of an inferior court."
There are a whole range of cases involving decisions made by Crown Court judges relating to trials on indictment. These include — this is by no means an exhaustive list, simply a flavour of it all by way of example — costs after an acquittal, vetting a jury panel, refusal of a judge to grant legal aid for a Queen's Counsel and the issue of a witness summons.
The Isleworth Crown Court case and the Manchester Crown Court case
My attention has been called to R (on the application of M) v Isleworth Crown Court and Her Majesty's Customs & Excise [2005] EWHC 363 (Admin) which was a decision of the Divisional Court. In that case the claimant had plainly been sent to the Crown Court for trial and "at an early stage" (the judgment is silent as to precisely when) a Crown Court judge revoked bail. The old route to challenge that was to go to a High Court judge in chambers, but that was much criticised by Auld LJ in his report on the criminal justice system. In consequence section 17(3) of the Criminal Justice Act 2003 dispensed with that and confined bail decisions to judges of the Crown Court.
Maurice Kay LJ (with whom Moses J, as he then was, agreed), said this about section 29(3) of the 1981 Act:
"… the present application is for judicial review of a refusal of bail by the Crown Court. Two jurisdictional issues require comment, although there is no dispute about them in the present case. The first is the exclusion of judicial review in respect of 'matters relating to trial on indictment' by section 29(3) of the Supreme Court Act. It is common ground, and I accept, that a decision as to bail at an early stage of criminal proceedings does not relate to trial on indictment as that expression has been interpreted in cases such as R v Manchester Crown Court ex parte DPP [1994] 98 Cr.App.R 461 HL, where Lord Browne-Wilkinson stated that the question to be posed when considering the "trial on indictment" test was as follows:
"'Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?' … If the answer is 'no', the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial: therefore, it may well not be excluded by the section."
It is necessary to look at R v Manchester Crown Court ex parte DPP in a little more detail. It was a decision of the House of Lords. In that case the claimant was a Member of the European Parliament who was indicted with crimes of dishonesty relating to two expenses claims from the European Parliament. He pleaded not guilty. Morland J was asked to quash the indictment by reason of a variety of technical issues relating to the sovereignty of the European Parliament. Judicial review of Morland J's decision to quash the indictment was sought. The Divisional Court did so. There was an appeal to the House of Lords who restored the order of Morland J. Section 29(3) came into sharp relief. It is to be noted in that case, no trial had commenced upon the indictment, indeed the trial judge quashed it.
In the House of Lords, Lord Browne-Wilkinson gave the leading speech with whom Lord Keith of Kinkel, Lord...
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