R v Central Criminal Court, ex parte Guney
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,SIR MICHAEL MANN,LORD JUSTICE PETER GIBSON |
| Judgment Date | 01 February 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0201-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 February 1995 |
| Docket Number | No. LTA 94/5325/G |
[1995] EWCA Civ J0201-3
In The Supreme Court of Judicature
In The Court of Appeal (Civil Division)
On Appeal from The High Court of Justice
Queen's Bench Divisional Court
(Ralph Gibson LJ and Smith J)
The Master of The Rolls
(Sir Thomas Bingham)
Lord Justice Peter Gibson
and
Sir Michael Mann
MR E. LAWSON Q.C. and MR. R. HOUSTON (instructed by Messrs. Kaim Todner, London SE17) appeared on behalf of the Applicant.
MR. R. OWEN Q.C. and MR. D. CALVERT–SMITH (instructed by R. Wardle Esq., Serious Fraud Office, London WC1) appeared on behalf of the Serious Fraud Office.
The Respondent was represented by the Treasury Solicitor.
The central question in this appeal is a very short one : Did Mr Asil Nadir surrender to the custody of the Central Criminal Court on 22 June 1992? If, as Mr Guney (the appellant) contends, Mr Nadir did so, Mr Guney thereupon ceased to be bound by his recognizance to pay £1 million if Mr Nadir did not surrender to the Crown Court when required to do so. If, as Tucker J held at the Central Criminal Court, and as the Queen's Bench Divisional Court held in the decision under appeal ( [1994] 1 WLR 438), Mr Nadir did not then surrender to the custody of the Central Criminal Court, Mr Guney was not then released from his obligation as surety and became liable to the estreatment of his recognizance when Mr Nadir later absconded to Northern Cyprus to avoid standing trial before a jury.
The question raised in this appeal was described by Mr Guney's former counsel as technical. So it is. The highly experienced judge who conducted the hearing on 22 June 1992 did not regard Mr Nadir as having surrendered to the custody of the court on that day. Nor did the highly experienced counsel representing Mr Nadir and the Serious Fraud Office (“SFO”). Nor did Mr Nadir, who believed that the bail conditions in force before 22 June 1992 continued in force thereafter. Nor did Mr Guney : he believed that his obligation as surety continued up to the time of Mr Nadir's departure. Yet it is plain that in law the trial of Mr Nadir on indictment began before Tucker J in the Central Criminal Court (sitting at Chichester Rents) on 22 June 1992 : if, as the judge and the Divisional Court held, Mr Nadir had not then surrendered to the custody of the court that conclusion also has its technical aspect.
Technical or not, the question does not lack practical consequences. Mr Guney has been ordered to forfeit £650,000 and in default of payment within 6 months to serve two years in prison. If he is right in contending that Mr Nadir did surrender to the custody of the court on 22 June 1992 he is not liable to make any payment.
The relevant facts were summarised with great care and accuracy in the judgment under appeal : see [1994] 1 WLR 438 at 441 B - 444F. It is unnecessary to repeat that summary, to which reference should be made. Mention is here made only of the crucial facts necessary to understand how the present question arises.
In December 1990 Mr Nadir was charged with a number of offences of fraud and false accounting. He was admitted to bail. On 28 January 1991 Mr Guney signed a form of recognizance (based on form 119 in Schedule 2 of the Magistrates' Courts (Forms) Rules 1981 as amended) for sureties in criminal cases. It bore the heading of the Bow Street Magistrates' Court and referred to Mr Nadir as “Accused”. Over Mr Guney's signature the form (as completed) read :
“I acknowledge my obligation to pay the Court the sum specified opposite my signature if the accused fails to surrender to the custody of the above-named Court on 23rd April 1991 at 2.00pm 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”.
The sum specified opposite Mr Guney's signature was £1,000,000. In granting bail and taking Mr Guney's recognizance the Magistrates' Court was validly exercising powers conferred by section 3 of the Bail Act 1976 and section 128 of the Magistrates' Courts Act 1980. The grant of bail was continuous so long as the proceedings remained in the Magistrates' Court, and extended until Mr Nadir first surrendered to the custody of the Crown Court. Mr Guney's obligation was coterminous with that of Mr Nadir. His obligation was to ensure that Mr Nadir surrendered to the custody of the court when required to do so. Despite the preferment of additional charges of theft in October 1991 Mr Guney expressly confirmed his willingness to continue as surety.
On 7 February 1992 the charges against Mr Nadir were transferred to the Central Criminal Court under the special provisions introduced by the Criminal Justice Act 1987 for the management of serious fraud cases. There was accordingly no committal for trial in the traditional sense. On 28 February 1992 Tucker J, to whom the conduct of these proceedings had been assigned, held a preliminary hearing at the Central Criminal Court. It seems that Mr Nadir as well as his advisers were present, since a minor variation in the conditions of bail was ordered. At this preliminary hearing the judge fixed 22 June 1992 as the date on which a preparatory hearing would be held.
Under the special procedure provided by the 1987 Act, “preparatory hearing” is a term of art. It is (as provided by section 7) a hearing ordered by the judge before the jury are sworn in order that the judge may give directions intended to facilitate the effective and expeditious conduct of the trial. Section 8 provides that if a judge orders a preparatory hearing, the trial shall begin with that hearing. The section also provides that “arraignment shall accordingly take place at the start of the preparatory hearing”.
The preparatory hearing on 22 June 1992 was held at Chichester Rents. There are at that court no cells and no custody area. In the courtroom used there was no dock. Mr Nadir was present and represented. The SFO was represented. So was Mr Nadir's co-defendant, but he plays no relevant part in this story. Various submissions were made and ruled upon. On application being made by Mr Nadir's counsel for a brief adjournment, the judge agreed, observing that “It would be an appropriate stage to mark the difference between the pre-preparatory hearing and our transition into the preparatory and the start of the trial proper..…” After further submissions, mostly about the indictment, the judge indicated that arraignment could take place and he asked Mr Nadir to stand up. The counts in the indictment as it then stood were formally put to Mr Nadir and he pleaded not guilty to each of them.
In the course of this hearing no reference was made to bail by the judge or counsel. Counsel for the SFO and Mr Nadir did, however, discuss whether it was necessary for Mr Nadir to surrender to his bail on that occasion because, had he done so, it would have been necessary for the court to consider the terms of any further bail before he could be released. Counsel agreed that it was not necessary for Mr Nadir to surrender to the custody of the court. The judge knew nothing of this discussion or agreement.
Further preparatory hearings were held on 7 September and 16-17 December 1992. On the latter occasion Mr Nadir sought, and was refused, a variation of his bail conditions to enable him to visit Northern Cyprus. He was again arraigned, repeating his pleas on the counts to which he had already pleaded and pleading not guilty to new counts. On this occasion the hearing took place at the Central Criminal Court in a courtroom which had a dock, but Mr Nadir did not sit in it.
In April 1993 Mr Guney made moves to withdraw from his position as Mr Nadir's surety, but he did not pursue these and said there had been a misunderstanding. On 4 May Mr Nadir left the country. He did not attend a hearing at the Central Criminal Court on 6 May and a bench warrant was issued. On 17 May 1993 notice was served on Mr Guney calling on him to appear at the Court to show cause why he should not forfeit £1,000,000, Mr Nadir having failed to surrender to the custody of the court.
On 30 July 1993 Mr Guney by counsel attended before the judge to show cause. The judge first dealt with the question of principle whether Mr Nadir had failed to surrender to custody. It was argued for Mr Guney that Mr Nadir had surrendered on 22 June 1992 and that Mr Guney was not in breach of his obligation as surety. The judge rejected this submission. He said :
“The question upon which I have been asked to rule in this aspect of the application is whether the surety should be estreated or forfeited. That depends upon the subsidiary question, whether Mr Asil Nadir can be regarded as having surrendered to the custody of this court and in particular having done so on 22nd June of last year when this court was sitting in Chichester Rents for the purposes of holding a preparatory hearing in this trial and for taking arraignment upon the indictment which Mr Nadir then faced.
The argument that has been presented on behalf of the surety is this, that on that occasion Mr Nadir did surrender to custody and that accordingly the surety's obligation had been fulfilled, the surety's obligation, it has been submitted, was simply to ensure that Mr Nadir surrendered to the custody of this court.
The argument was that thereafter Mr Nadir was in the custody of this court and that if it was considered necessary for the surety's obligation to continue then the recognizance should have been retaken on that occasion and that surety and, for that matter, another surety with him be made aware of the extension of their...
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