The King (on the application of Darykie Ramos Molina) v Crown Court at Snaresbrook
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Mr Justice Bennathan |
| Judgment Date | 12 April 2024 |
| Neutral Citation | [2024] EWHC 816 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-000707 |
and
[2024] EWHC 816 (Admin)
Lady Justice Nicola Davies
Mr Justice Bennathan
Case No: AC-2023-LON-000707
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alex Benn (instructed by EHB Solicitors) for the Claimant
Denis Barry (instructed by the Crown Prosecution Service) for the First Interested Party
Hearing date 6 March 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 12 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Lady Justice Nicola Davies and
This is the judgment of the court. In these proceedings the claimant seeks judicial review of the determinations of HHJ Dean (“the judge”) sitting at Snaresbrook Crown Court on 15 November 2022 that: (i) the court had jurisdiction to determine the prosecution's appeal to the granting of bail to the claimant by Barkingside Magistrates' Court and (ii) allowing the appeal and remanding the claimant in custody. The claimant seeks to quash the defendant's order of 15 November 2022 remanding the claimant in custody. In the alternative, declaratory relief is sought.
The proceedings in the Barkingside Magistrates' Court on 11 November 2022 are of relevance to the issue before this court namely, whether the defendant had jurisdiction in respect of the appeal by the Crown Prosecution Service (“CPS”) upon the issue of bail granted to the claimant in the magistrates' court.
Before this court the claimant was represented by Mx Benn and the first interested party was represented by Mr Barry, who did not appear in the Crown Court. We are grateful to them for their written and oral submissions. The defendant and the second interested party were not represented and made no submissions.
Background
The claimant was arrested on 10 November 2022 and charged with four offences: (i) intentional strangulation contrary to section 75A of the Serious Crime Act 2015; (ii) assault occasioning actual bodily harm contrary to section 47 of the Offences Against Persons Act1861 (“OAPA”); (iii) threats to kill contrary to section 16 of the OAPA; (iv) using violence to secure entry to premises contrary to section 6 of the Criminal Law Act 1977. All offences were allegedly committed against his former partner earlier that day. The claimant was refused bail by the police.
On 11 November 2022 the claimant appeared in custody before the justices at Barkingside Magistrates' Court. He was represented by his solicitor, Mr Halil, the CPS was represented by Ms Puig Sobredo. The claimant, a person of no previous convictions, indicated pleas of not guilty to all charges. The justices accepted jurisdiction and the claimant exercised his right to elect trial in the Crown Court. The case was “sent” to the Snaresbrook Crown Court pursuant to section 51 of the Crime and Disorder Act 1988 (“the 1988 Act”) for a plea and trial preparation hearing on 7 December 2022. Following the transfer, Mr Halil applied for bail on behalf of the claimant which was opposed by the CPS. Shortly before 1:10pm the justices granted Mr Molina conditional bail. What immediately followed the grant of bail in court is not agreed between the parties.
The CPS advocate, in an undated witness statement, stated:
“I gave oral notice of the Crown's intention to appeal against the grant of bail… The Serco (custody) officers were still in the dock at that time and had begun to remove the Claimant. I can recall that his representing solicitor reacted to my application, stating that it was “ridiculous”. The Chair of the bench clarified that the Crown had appealed the grant of bail and the legal adviser announced that the Crown had two hours from the giving of oral notice to serve the written notice on the Claimant and on the court. At this point the court was adjourned until 2pm.”
In an email dated 11 November 2022 the legal adviser to the justices stated:
“The bench were announcing the bail decision and the prosecutor informed me she will be bail appealing so I faced Mr Halil and mouthed to him bail appeal. Once bench had made their decision to grant bail, serco were on their way out, the prosecutor stood up and stated she will be bail appealing and gave the time, the chair repeated to the prosecutor 3x you are bail appealing. One dock officer was near the door and the other dock officer and the defendant in the dock. I then faced the dock and said bail appeal and announced the time and stated defendant will need to be given notice of bail appeal within 2 hours. I said it as loud as I could ….. It is correct that there was a lot of noise and people moving around the court as people began to leave. The bench did not say to the dock officers defendant is remanded in custody until bail appeal is pending.
Therefore there is no blame on the dock officers. I take responsibility that the error is on my part for not ensuring they announced he is remanded in custody…”
In a statement dated 11 November 2022 Mr Halil addressed the issue of the oral notice of an intention to appeal by the prosecutor as follows:
“They [the justices] announced their decision in open court. At that stage I was able to observe the Serco officers in the dock making notes of the outcome and the defendant was then allowed to leave the dock on the direction of the Magistrates. Whilst I did not follow with my line of sight the departure of the defendant and the Serco officers, it was quite clear that they were moving towards the door leading down to the cells.
It was at this point that I looked at the Legal Adviser who “mouthed” to me that the Prosecutor intended to appeal the grant of bail. When I say “mouthed” I mean that she did not speak but simply mimed the word “appeal”. Taken a little by surprise by this, I looked across to the Prosecutor. It was quite apparent to me that there must have been some indication by the Prosecutor to the Legal Adviser of her intention to appeal but nothing at that stage was stated verbally in open court.
The Prosecutor then stood up. She spoke directly to the Legal Advisor and expressed her intention to appeal the grant of bail. When I say she said it to the Legal Adviser, I am emphasising this was not a declaration made so that everyone in the courtroom could hear. This was obvious because there then had to be a slight delay further while the Legal Adviser explained to the Bench that there was to be an appeal and that time requirements now came into play for the service of notices on the defendant.
I cannot comment upon where the defendant and the SERCO officers were at this moment as my attention was towards the Prosecutor waiting to discuss with her the merits of an appeal. What is abundantly clear, however, is that the dock was empty and no-one within the courtroom directed any comments or directions to anyone inside the dock, specifically not to the SERCO officers whose responsibility it was to remove the defendant back to the cells”.
Mr Halil attempted to visit the cells in order to speak to the claimant but was unable to access the area as it was the lunch break. He returned to the cell access point just before 2pm but was told by a member of the Serco staff that the claimant had been released.
The two dock officers and the senior Serco employee at the court set out their recollections in writing. The dock officers stated that they were not told of any bail appeal and did not hear any mention of one. The senior officer stated that he was told of the bail decision but not of any appeal and therefore released the claimant.
The court reassembled shortly after 2pm by which time it was known that the claimant had been released and had left court. Ms Puig Sobredo submitted that the justices should remand the claimant in custody, an application which caused them concern given the absence of the claimant.
At 2:32pm, the CPS purported to effect written service of the notice of appeal by sending the same by email to the claimant's solicitor. It also requested the police to visit the claimant's home address to effect service upon him. No information has been provided to this court as to what steps, if any, were taken by the police. It is accepted that the claimant was not served with any written notice of appeal. Further the prosecution made no application under the Criminal Procedure Rules (“CrPR”) 4.10(f) which provides for service on a legal representative to count a service on the defendant of “any notice or document served under Part 14” [Part 14 includes the document giving notice of an appeal].
Following further submissions from the prosecution and the defence, the justices determined that the failure by the CPS to serve written notice of appeal on the claimant resulted in a disposal of the appeal pursuant to the provisions of section 1(7) of the 1993 Act. This decision was recorded on the second interested party's register as follows:
“Please add Justices decision on Libra register -;
Justices decision – Matter of bail appeal of defendant, crown bail appealed, defendant was granted bail with conditions. The crown issued notice to appeal but his notice was not served on the defendant within 2 hours, and he was released in error. The CPS requested that the bench remanded the defendant in custody in his absence as the defendant was unlawfully at large. The defence advocate argued that subsection 7 of bail amendment act had not been complied with as the defendant has not been served within the appropriate time limit. The crown made submissions with regards to case law that service of notice errors does not undermine the appeal. However, the...
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