Re Smalley
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Diplock,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Brightman |
| Judgment Date | 28 February 1985 |
| Judgment citation (vLex) | [1985] UKHL J0228-1 |
| Date | 28 February 1985 |
| Court | House of Lords |
[1985] UKHL J0228-1
House of Lords
Lord Fraser of Tullybelton
Lord Diplock
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Brightman
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons given by him I would allow this appeal and remit the appellant's application to the Divisional Court.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons which he gives I would allow the appeal.
I express no view as to whether an application to the Crown Court to have the case stated by that court for the opinion of the High Court under section 28(1) would be an alternative though a round-about way of securing the same result as an application under section 29(3).
My Lords,
I agree that, for the reasons given in the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich, this appeal should be allowed.
My Lords,
On 28 June 1982, Ian Smalley, having been charged with offences under section 68(2) of the Customs and Excise Management Act 1979, was committed by the Warwick Magistrates' Court for trial at the Warwick Crown Court. He was granted bail on condition, inter alia, of providing one surety in the sum of £100,000. Ian's brother, John Herbert Smalley, the appellant before your Lordships, agreed to provide that surety and duly entered into a recognizance in the required sum on the same day.
Rule 21 of the Crown Court Rules 1982 ( S.I. 1982 No.1109) provides as follows:
"(1) Where a recognizance has been entered into in respect of a person granted bail to appear before the Crown Court and it appears to the court that a default has been made in performing the conditions of the recognizance, the court may order the recognizance to be estreated.
(2) Where the Crown Court is to consider making an order under paragraph (1) for a recognizance to be estreated, the appropriate officer of the court shall give notice to that effect to the person by whom the recognizance was entered into indicating the time and place at which the matter will be considered; and no such order shall be made before the expiry of 7 days after the notice required by this paragraph has been given."
Having been given due notice pursuant to that rule, the appellant appeared on 15 July 1983 at the Warwick Crown Court where, in the event, His Honour Judge Harrison-Hall made an order that the whole amount of the appellant's recognizance be estreated.
My Lords, I have quite deliberately refrained from giving any account of the events leading to the making of the Crown Court's order, lest the language I use should be thought to reflect in any way on the merits of the matter. Those merits do not arise for consideration in the present appeal, which is concerned solely with the issue whether the Divisional Court had jurisdiction to entertain an application for judicial review seeking an order of certiorari to quash the Crown Court's order. On 7 September 1983, the appellant obtained leave from Woolf J. to make such an application. The application was heard by the Divisional Court (Kerr L.J. and Glidewell J.) on 14 March 1984. The preliminary objection having been taken on behalf of the Commissioners of Customs and Excise as respondents that the Court had no jurisdiction to entertain the application, their Lordships, with undisguised reluctance, held themselves bound by the authority of the Court of Appeal's decision in Reg. v. Sheffield Crown Court, Ex parte Brownlow [1980] Q.B. 530, to uphold the respondents' objection. On 2 April 1984, the Divisional Court, recognising that it would be open to argument in your Lordships' House that their judgment was in "a criminal cause or matter", in which case the jurisdiction of the Court of Appeal would be ousted by section 18(1)( a) of the Supreme Court Act 1981, granted two certificates to enable an appeal to be brought directly to your Lordships' House, one under the leapfrog procedure provided by section 12 of the Administration of Justice Act 1969 for civil appeals, the other certifying that a point of law of general public importance was involved in their decision pursuant to section 1 of the Administration of Justice Act 1960, being the certificate necessary to give this House jurisdiction to entertain the appeal if it was in a criminal cause or matter. Your Lordships' House granted leave to appeal on 6 June 1984.
The presently applicable statutory provisions are to be found in the Supreme Court Act 1981. The Crown Court is declared by section 45 to be a superior court of record. The relevant parts of sections 28 and 29 of the Act provides as follows:
"28. - (1) Subject to subsection (2), any order, judgment or other decision of the Crown Court may be questioned by any party to the proceedings, on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the Crown Court to have a case stated by that court for the opinion of the High Court.
(2) Subsection (1) shall not apply to -
( a) a judgment or other decision of the Crown Court relating to trial on indictment; ….
29. - (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 orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court."
All these provisions were originally enacted by the Courts Act 1971. Though cast in a different form the provisions of section 28(1) and (2)( a) of the Act of 1981 reproduce unchanged in effect the provisions of section 10(1)( a), (2) and (3) of the Act of 1971 and section 29(3) of the Act of 1981 re-enacts verbatim section 10(5) of the Act of 1971.
Ultimately the decision of this appeal must turn on the construction of the exclusionary clause in section 29(3) "other than its jurisdiction in matters relating to trial on indictment." But, before turning to that central issue and the authorities which bear upon it directly, it is appropriate to advert to some more peripheral matters which were canvassed in argument.
In Reg. v. Southampton Justices, Ex parte Green [1976] Q.B. 11, the applicant was a surety for her husband's bail. Upon his failing to surrender as required, the wife's recognizance was ordered by justices to be estreated. The Divisional Court refused her leave to move for an order of certiorari to quash the justices' order. On her appeal to the Court of Appeal, the preliminary point was taken that no appeal lay, since the order of the Divisional Court was made in "a criminal cause or matter." The Court rejected this view. Lord Denning M.R., with whose judgment Browne L.J. and Brightman J. (as my noble and learned friend then was) agreed, said, at pp. 15-16:
"A recognizance is in the nature of a bond. A failure to fulfil it gives rise to a civil debt. It is different from the ordinary kind of civil debt, because the enforcement is different. It is enforceable like a fine…. But that method of enforcement does not alter the nature of the debt. It is simply a civil debt upon a bond and as such it is not a criminal cause or matter."
In the instant case Kerr L.J. found it impossible to reconcile that decision with the conclusion which he nevertheless felt himself bound by Brownlow's case [1980] Q.B. 530 to reach that the order estreating the appellant's recognizance was here made in "a matter relating to trial on indictment." Conscious that Green's case presents a formidable obstacle to his arguments for the respondents, Mr. Laws invited us to overrule it. He drew our attention to the doubts expressed in Reg. v. Lambeth Metropolitan Stipendiary Magistrate, Ex Parte McComb [1983] 1 Q.B. 551, by Sir John Donaldson M.R., at p. 563 and by May L.J., at p. 567 as to whether Green's case had been rightly decided. In Green's case, Lord Denning relied on a passage from the speech of Viscount Simon L.C. in Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 147, in support of his conclusion. Sir John Donaldson M.R. and May L.J., in the passages referred to above, thought that the speeches of Viscount Simon L.C. and Lord Wright in Amand's case pointed the other way. Amand's case was concerned with an application for a writ of habeas corpus by an alleged absentee without leave from the Netherlands army, who was liable by virtue of the Allied Forces Act 1940 and an Order in Council made thereunder, applying to visiting forces the relevant provisions of the Army Act applicable to the home forces, to be delivered into military custody of the Netherlands authorities. Your Lordships' House held that to be "a criminal cause or matter." I must frankly confess that I can find nothing in the speeches in that case which throws any light one way or the other on the totally different question whether an order estreating the recognizance of a surety for a defendant admitted to bail in criminal proceedings is covered by the same language. I do not find it necessary for present purposes to give a concluded answer to that question. It follows that I am not prepared to hold that Green's case [1976] Q.B. 11 was wrongly decided.
Mr. Laws argued as what he described as his "fall-back" position that, if the appellant had any remedy, it was not by way of application for judicial review under section 29(3) of the Act of 1981 but by way of an appeal by case stated under section 28(1). The first question this argument raises is whether the appellant was "a party to the proceedings" in which the...
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