R v Central Criminal Court, ex parte Guney
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,MRS JUSTICE SMITH |
| Judgment Date | 26 January 1994 |
| Judgment citation (vLex) | [1994] EWHC J0126-4 |
| Date | 26 January 1994 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO-3045-93 |
[1994] EWHC J0126-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice Ralph Gibson Mrs Justice Smith
CO-3045-93
MR. T. LAWSON QC and MR. R. HOUSTON (Instructed by Kaim Todner, London SE17) appeared on behalf of the Applicant.
MR. R. OWEN QC and MR. D CALVERT-SMITH and MS C McGAHEY (Instructed by the Serious Fraud Office) appeared on behalf of the Respondent.
( )
Wednesday, 26 January 1994
This is an application for judicial review by Mr Ramadan Hussein Guney, a member of the Turkish Cypriot Community in this country. He stood surety, in the sum of £1 million, for Mr Asil Nadir, also a member of that community, when Mr Nadir was charged in December 1990 with offences of theft and false accounting and was granted bail on certain terms and conditions, including the provision of sureties. Mr Asil Nadir, who has at all times asserted his innocence, chose on 4th May 1993 not to face trial upon the charges made against him in this country but instead to run away to Northern Cyprus leaving Mr Guney to bear such burden as the law should impose upon Mr Guney in respect of his recognisance. On 30th July 1993, Tucker J. ordered forfeiture in the sum of £650,000.00. to be paid by Mr Guney within 6 months and with 2 years imprisonment in default of payment. Mr Guney claims that the order of forfeiture was made without jurisdiction on the ground that, as is asserted on his behalf by Mr Lawson, any obligation under the recognisance had, as a matter of law, come to end on 22nd June 1992 when Mr Nadir, upon being arraigned before Tucker J. and pleading not guilty to the indictment, surrendered to the custody of the Court. Since the recognisance was not renewed, there was, it is said, no continuing liability, and it matters not that Mr Guney, and all other participants in the proceedings, including the Judge, confidently supposed that Mr Nadir was on bail supported by the recognisance of Mr Guney.
Leave to apply was granted on 17th November 1993. The grounds stated were directed to the issue whether after 22nd June 1992 Mr Guney was in law liable on the recognisance. In addition the point was raised as to the amount ordered to be forfeited and, if it should be held that Mr Guney is liable at all, it was contended that the Judge failed properly to take into account the means of Mr Guney. That alternative ground has not been pursued in this Court. Mr Lawson, however, applied for leave to add an additional ground, namely that the Court or the prosecution failed to inform Mr Guney of allegations made or discovered in October 1992 to the effect that an attempt was to be made to bribe Tucker J. to secure variation of the conditions of Mr Nadir's bail. The relief sought on this alternative ground, if it should be made out, is an order remitting the Crown's application for forfeiture to the Court for reconsideration of the amount to be forfeited having regard to such relevant unfairness as might be proved to have been caused by the failure to inform. Leave to amend the grounds was granted.
The facts must be stated in some detail.
1. On 28th January 1991 Mr Guney signed the recognisance upon which forfeiture was ordered by Tucker J. It reads:
"I acknowledge my obligation to pay the Court the sum specified opposite my signature (£1m.) if the accused fails to surrender to the custody of the above-named Court (Bow Street Magistrates Court) on 23rd April 1991 at 2 pm; and custody at every time and place to which during the course of the proceedings the hearing may from time to time be adjourned; and custody of the Crown Court on such day and at such time and place as may be notified to the accused by the appropriate officer of that Court."
2. On 28th January 1991 Mr Nadir was remanded to 23rd April 1991, with one variation to the detailed conditions of his bail which included conditions such as reporting weekly to a police station, and that Mr Nadir deposit £2m with his solicitors to be held to the order of the clerk of the Court. Miss Aysegul Nadir, former wife to Mr Nadir, was also surety in the sum of £500,000. It is said by the Crown that "it was agreed" that the surety should be made continuous to trial. That was not an agreement to which Mr Guney was party. It is submitted for Mr Guney that it was not within the power of the Magistrates Court to make an Order for bail extending beyond "surrender to the custody" of the Crown Court.
3. Mr Nadir appeared at Bow Street Magistrates Court on various dates between April and 22nd October 1991 when he was charged with 58 further offences of theft and remanded to 7th November 1991. The clerk at Bow Street then wrote to ask whether Mr Guney was content to continue as surety. On lst November 1991 Mr Guney replied to the affect that he wished to continue to be bound as surety.
4. On 7th February 1992 the charges against Mr Nadir and a co-defendant, Mr John Turner, were transferred to the Central Criminal Court under Section 4 of the Criminal Justice Act 1987. The Serious Fraud Office was established under that Act. Transfer under Section 4 is effected by a notice to the Court by a designated authority, which expression includes the SFO, if the authority is of opinion that the evidence of the offence charged would be sufficient for the person charged to be committed for trial and that the evidence reveals a case of fraud of such seriousness and complexity that it is appropriate that the management of the case should without delay be taken over by the Crown Court. There was a preliminary hearing at the Central Criminal Court before Tucker J. on 28th February 1992 when the preparatory hearing was fixed for 22nd June 1992.
5. On 8th June 1992 Tucker J. on the application of Mr Nadir dismissed 46 of the charges against him on, as I understand it, the authority of the decision of the Court of Appeal Criminal Division in R v Gomez 1991 93 CAR 156. The charges were later reinstated in December 1992 when that decision was reversed by the House of Lords: 1993 96 CAR 359.
6. On 22nd June 1992 in a hearing before Tucker J. in a Court at Chichester Rents the "preparatory hearing" began. There is a full transcript before this Court. The purpose of a preparatory hearing, and the nature of it, and the possible consequences, are clear from the provisions of Section 7, 8 and 9 of the Act of 1987.
"7 Power to order Preparatory Hearing
(1) Where it appears to a judge of the Crown Court that the evidence on an indictment reveals a case of fraud of such seriousness and complexity that substantial benefits are likely to accrue from a…preparatory hearing…before the jury are sworn, for the purpose of (a) identifying issues which are likely to be material to the verdict of the jury; (b) assisting their comprehension of any such issues; (c) expediting the proceedings before the jury; (d) assisting the Judge's management of the trial, he may order that such a hearing shall be held.
(3) If a judge orders a preparatory hearing, he may also order the prosecution to prepare and serve any documents that appear to him to be relevant and whose service could be ordered at the preparatory hearing…
(4) Where (a) a judge has made an order under sub-section 3 above; and (b) the prosecution have complied with it, the judge may order the person indicted…to prepare and serve any documents that appear to him to be relevant and whose service could be so ordered at the preparatory hearing….
8. Commencement of Trial and Arraignment
(1) If a judge orders a preparatory hearing, the trial shall begin with that hearing.
(2) Arraignment shall accordingly take place at the start of the preparatory hearing.
9. The Preparatory Hearing
(1) At the preparatory hearing the judge may exercise any of the powers specified in this section.
(2) The Judge may adjourn a preparatory hearing from time to time.
(11) An appeal shall lie to the Court of Appeal from any Order or ruling of a Judge under Sub-Section (3)..above but only with the leave of the Judge or of the Court of Appeal."
7. On the 22nd June 1992 Mr R Owen QC appeared for the prosecution, Mr Scrivener QC appeared for Mr Nadir and Mr Hopmeier appeared for Mr Turner before Tucker J. After various submissions and rulings, Tucker J. asked whether the Court could move on to the preparatory hearing. (T p.33). A short adjournment was ordered on the request of Mr Scrivener at a stage which the Judge described as "appropriate to mark the difference between the pre-preparatory hearing and transition into the preparatory and the start of the trial proper": p.33. When the Judge sat again at noon there was further discussion of the indictment and amendments were directed to be made to it. Counsel for the defendants did not object to arraignment taking place: p.38. There was no dock in the Court and Mr Nadir and Mr Turner was sitting with Solicitors and Counsel. Tucker J. said: "Arraignment can take place. Would Mr Nadir and Mr Turner please stand up for the moment?" They did so in the places where they had been sitting. The counts in the indictment were then put by the Clerk of the Court in the usual manner, and each defendant pleaded not guilty to each count. At the conclusion, the Clerk said "Thank you. Please sit down" and they sat. The preparatory hearing continued with an application by Mr Owen to amend the indictment by introducing certain counts. There was then pending an application for judicial review of the decision of Tucker J. to dismiss the 46 counts, and the outcome of that application depended upon the decision of the House of Lords in Gomez which was...
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