R v Reading Crown Court, ex parte Bello
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE STUART-SMITH,LORD JUSTICE PURCHAS |
| Judgment Date | 06 December 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1206-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/1045 |
| Date | 06 December 1990 |
[1990] EWCA Civ J1206-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
DIVISONAL COURT
MANN L.J. & ROSE J.
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Parker
and
Lord Justice Stuart-Smith
90/1045
THE APPELLANT (APPLICANT) appeared in person.
MR. G. SANKEY (instructed by The Treasury Solicitor) appeared on behalf of the Respondent (Respondent).
On 3rd October 1985, a Mr. Odoe was arrested in connection with the alleged illegal importation of 17.7 kilograms of cannabis.
On the following day he appeared before the Uxbridge Magistrates' Court on an information laid in respect of that matter. He was there granted bail on certain conditions some of which were pre-release and some post-release conditions.
On 17th October 1985 he again appeared before that court on an application to vary the bail conditions.
The conditions as so varied were as follows:
" Pre-release
Two sureties, one of £10,000 and one of £5,000. Deposit of £7,500 with his solicitors to the order of the court. Surrender of passport.
Post-release
Reside at specified address.
Report to Camberwell Police station every Monday between 6 p.m. and 9 p.m..
Not to leave U.K."
The pre-release conditions were all satisfied. One of the two sureties was the appellant Mr. Bello. He stood surety in the larger of the two sums. He was in court at the time. He was examined as to means and accepted. He signed the sureties' declaration in the presence of one of the magistrates then present. That declaration was in the following terms:—
" DECLARATION OF SURETY.
I have had my obligations as a surety explained to me in open court. I have read and understood the contents of the leaflet headed "SURETIES".
I understand that:
(1) It is my duty to ensure that the accused attends this court on each and every occasion that he is required. I understand that this duty is continuous until either the case is heard at this court or sent to a higher court for trial/sentence.
(2) If I fail to produce the accused at this court on any occasion on which he is required to attend, the court can order that I forfeit the whole of the sum in which I stand surety.
(3) If I fail to produce the accused at this court on any occasion on which he is required to attend and cannot pay the sum the court orders me to forfeit as a result of his failing to attend I may be sent to prison.
(4) if I have given the court information on oath which I know to be false or do not believe to be true I am liable to be prosecuted for perjury.
(5) I understand that if I wish to withdraw as a surety I must attend the court together with the accused.
I ACKNOWLEDGE MY OBLIGATION TO PAY THE COURT THE SUM SPECIFIED OPPOSITE MY SIGNATURE IF THE ACCUSED FAILS TO SURRENDER TO CUSTODY ON EACH AND EVERY OCCASION TO WHICH THE HEARING MAY FROM TIME TO TIME BE REMANDED.
Signed:…(BELLO)…£10,000.
Taken before me this 17th day of October 1985.
(M. A. BUNFORD)
Justice of the Peace (Clerk of the Court)".
The leaflet "SURETIES" referred to in this declaration provided—
"1. It is a criminal offence to agree with another person to make good a loss incurred as a surety.
2. A surety should be genuinely satisfied that the accused person intends to attend court as required. The surety should have complete information concerning the character and record of the accused and must be aware of the nature and gravity of the allegations against the accused.
3. A surety who has been accepted by the court must understand that if the accused does not appear at court as required he may have to pay all or part of his recognizance and if he fails to pay he can be imprisoned.
4. If a surety believes the accused may not appear at court he must report this belief to the police in writing and ask to withdraw as surety. The surety must understand he may not be released from his duties and obligations immediately".
It is to be observed that the obligation then undertaken was a continuous one to ensure Mr. Odoe's attendance at the Uxbridge court whenever he was required so to attend until either he was tried by that court or he was committed for trial to the Crown Court. There was no obligation to ensure Mr. Odoe's attendance at the Crown Court.
It is also to be observed that paragraph 5 of the declaration and paragraph 4 of the leaflet "Sureties" do not go happily together. The one acknowledges an obligation to attend court with the accused if the surety wishes to withdraw, whilst the other merely requires the surety, if he believes the accused may not appear, to report his belief to the police in writing and ask to withdraw. It is in my view desirable that this matter should be cleared up. It appears to me that paragraph 5 of the declaration goes too far. If the accused is already in custody, certainly if it is police custody in this country, I can see no basis on which the surety should only be released on attending in court with the accused.
The pre-release conditions having been satisfied, Mr. Odoe was released. It appears that he complied with post-release conditions between his release and the 5th December 1985 on which date he was required to attend the magistrates' court at Uxbridge again. He did so attend and was then committed for trial at the Reading Crown Court under section 6(2) of the Magistrates' Court Act 1980.
The result of that committal was that Mr. Bello's obligations under his declaration of 17th October ceased. Rightly recognising this, the Uxbridge court then obtained from Mr. Bello, who attended on the 5th December as he had on the 17th October, a further declaration. It reads as follows
" Regina v. O.T. Odoe
PROCEEDINGS ON COMMITTAL.
DECLARATION OF SURETY.
I have had my obligations as a surety explained to me in open court.
I have read and understood the contents of the leaflet headed "SURETIES".
I understand that:
(1) It is my duty to ensure that the accused attends at the Crown Court for trial/sentence when required.
(2) If I fail to produce the accused at the Crown Court when he is required to attend, that court can order that I forfeit the whole of the sum in which I stand surety.
(3) If I fail to produce the accused at the Crown Court when he is required to attend and cannot pay the sum that court orders me to forfeit as is result of his failing to attend, I may be sent to prison.
(4) If I have given this court information on oath which I know to be false or do not believe to be true I am liable to be prosecuted for perjury.
I ACKNOWLEDGE MY OBLIGATION TO PAY THE COURT THE SUM SPECIFIED OPPOSITE MY SIGNATURE IF THE ACCUSED FAILS TO SURRENDER TO CUSTODY AT THE CROWN COURT WHEN REQUIRED TO ATTEND".
The sum specified was again £10,000. This declaration was also taken before one of the magistrates then present.
The leaflet "Sureties" was the same as before. The bail conditions were also as before, and the other surety, I have no doubt, also signed a new declaration in the same form as that signed by Mr. Bello.
With regard to that declaration it is of importance to observe that under paragraph 1 the obligation was to ensure that Mr. Odoe attended at the Crown Court "for trial/sentence when required". Paragraph 2 is in more general terms in that it is not expressly limited to attendance for trial or sentence. The same applies to the acknowledgement which follows paragraph 4. It appears to me however that in both places the words "when he is required to attend" in paragraph 2 and "when required to attend" in the acknowledgement must be construed as qualified by the words "for trial/sentence". The duty is expressed clearly in paragraph 1. It cannot in my judgment be extended to cover attendance otherwise than for trial or sentence by the apparently wider words which follow.
Pre-release conditions having been satisfied, Mr. Odoe was again released. He apparently complied with the post release conditions until shortly before the 23rd December. On that date Camberwell Police advised Customs and Excise that Mr. Odoe had breached the reporting conditions and had absconded.
It appears from a statement made to the police by Mr. Bello on 7th January in circumstances to which I shall shortly refer that Mr. Odoe telephoned him shortly before Christmas and that shortly afterwards he telephoned Mr. Odoe. Between then and 6th January he made further telephone calls to Mr. Odoe only to be told by Mrs. Odoe that he was asleep or out with the children. On 6th and 7th January he went to Mr. Odoe's address in order to see him but on neither occasion was Mr. Odoe to be found. Mr. Bello also tried to ascertain Mr. Odoe's whereabouts from his sister, whose address was given to the police in the statement, but she stated that she did not know his whereabouts.
As a result of all this, on 7th January Mr. Bello informed both the police and the Chief Clerk of the Uxbridge Magistrates' Court that he wished to withdraw as surety. He made the formal statement to which I have already referred. In that statement in addition to the matters already mentioned he indicated three other places at which Mr. Odoe might be found and concluded:
"The main reason that I wish to withdraw my surety is that I do not believe that Mr. Odoe will turn up at the court and that he may try to leave the country if he has not already done so".
Mr. Bello had thus taken the action which he was enjoined to take in paragraph 4 of the leaflet "SURETIES". Indeed he had done more. He had reported to the Chief Clerk of the Uxbridge Magistrates' Court who recorded the fact in writing and also the further...
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