The King (on the application of Shafaquat Afzal Hussain) v Crown Court at Leeds
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 17 January 2023 |
| Neutral Citation | [2023] EWHC 64 (Admin) |
| Docket Number | Case No: CO/4886/2023 |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 64 (Admin)
Mr Justice Fordham
Case No: CO/4886/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN LEEDS
Richard Wright KC (instructed by SJ Law Solicitors) for the Claimant
Mark McKone KC (instructed by CPS) for the Interested Party
The Defendant did not appear and was not represented
Hearing date: 17.1.23
Judgment as delivered in open court at the hearing
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Note: This judgment was produced and approved by the Judge, after using voice-recognition software during an ex tempore judgment.
Introduction
This is a “rolled up” hearing of a claim for judicial review pursuant to an Order of Bourne J on 29 December 2022. I am going to begin by granting permission for judicial review because I am satisfied that the claim crosses the (modest) threshold of arguability and in those circumstances, it being a rolled up hearing, I am going to proceed to deal with the claim substantively.
The Claimant is a 46-year-old man who has been on conditional bail since he was charged in October 2021. The charges that he faces, in criminal proceedings, are two counts of rape alleged to have been committed during the period October 1998 to December 2002. The criminal case is part of a picture of alleged child sexual exploitation. At the trial in which he stands as a defendant, as I understand it from the papers, there are five other defendants. The trial was scheduled to take place in November of this year but has been deferred and will not now take place until September 2024.
Bail conditions which have been in place throughout, since being imposed in October 2021, then reimposed at the end of November 2021 by the Magistrates, and then continued after the case arrived at the Crown Court from December 2021. They include these bail conditions:
Not to travel, attempt to travel, or make any arrangements to travel outside the United Kingdom .
To surrender passport to West Yorkshire Police within 48 hours of being charged .
An application was made on 9 December 2022, to the Crown Court, to vary those bail conditions. The purpose of the application, and of the requested variation, was so that the Claimant would be able to “travel to Pakistan to accompany his mother when she sadly passes away for the funeral and burial which is to be held in Pakistan”, on what on the evidence was the imminent death of his dying mother. As the application explained, it was being made “in advance” because when the Claimant's mother “does pass away she will be quickly taken to Pakistan in accordance with her wishes for the funeral and burial to take place within days of her passing away, in accordance with the Islamic burial procedures”. The proposed varied conditions of bail involved the Claimant informing the police of his mother's death after which the passport would be released to him within 24 hours enabling his return to Pakistan; together with an obligation that he return to the UK within 45 days of departure and re-surrender his passport within a further 48 hours. At that stage the application was not accompanied by any surety or security. The argument was that in all the circumstances the bail conditions preventing travel were not justified as necessary and that variation was the appropriate course. A GP's letter dated 16 November 2022 described the mother as being under palliative care and deteriorating rapidly with a poor prognosis of weeks. That first application was refused by HHJ Phillips KC on 19 December 2022.
There was then a second application for variation of the bail conditions which is the direct subject of these judicial review proceedings. The application that was made, again to the Crown Court, included within the proposed conditions that there be a “fixed itinerary” of flights to and from Pakistan. The reasons and rationale for the variation were as before. But the proposed conditions included a security and a surety. The security was of £25,000 pre-variation security to be lodged by a friend of the Claimant, Basharat Ditta. At the time that the application was made orally by Mr Wright KC on 22 December 2022 there was an additional pre-variation security of £15,000 from another friend, Fida Mohayyussin. The total of those two cash securities was therefore £40,000. There was also a surety, valued at approximately £110,000, offered by the Claimant's brother-in-law Navaid Akhtar. That was described as surety in relation to unencumbered land namely Mr Akhtar's commercial car park. Those were the circumstances in which the second application for a variation came to be made before HHJ Singh (“the Judge”) on 22 December 2022.
The transcript of that hearing records the brief and succinct submissions made by Mr Wright KC on behalf of the Claimant, seeking the variation; by Mr McKone KC for the Interested Party (the “CPS”) opposing it; and then the oral reasons given by the Judge. In the circumstances I think it right to set out contents of the transcript. First, from Mr Wright KC:
MR WRIGHT: Your Honour I know will have read the papers. It is essentially a variation that would enable Shafaquat Hussain to accompany his mother's body to Pakistan for burial when she dies, as she inevitably will. Your Honour has seen——JUDGE SINGH: At the moment she is receiving palliative care, isn't she? MR WRIGHT: She is. I spoke to the defendant who is here outside this morning. He has not been able to see her for six days because he has had a cold but he was able to go to see her yesterday. She is now beyond speech and is very much at the end of her life. Your Honour will appreciate that we have tried to approach this responsibly by making an application in good time and one which in our submission is reasonable, given the fact and acknowledging the serious nature of these allegations they are very old allegations. He is a man of good character with extremely settled ties to this country and he simply wants to complete what he considers to be his obligation to his mother by taking her body home for burial and complying with the funeral rites and traditions of his homeland. He offers, because I know the Crown are concerned he won't come back—he has got every intention of coming back and this trial, his trial, is now up until the end of 2024. JUDGE SINGH: Yes. MR WRIGHT: He offers a security. That is money lodged with the court. In fact, we have this morning been able to establish that he could lodge, in fact, £40,000 in cash with the court which would obviously be forfeit if he shouldn't return. There is also his brother-in-law, Navaid Akhtar, outside. He owns a commercial car park in Dewsbury. It is free of mortgage. Its value is in excess of £100,000 and he is willing to stand surety with that piece of land in addition to the security and my simple submission is that when your Honour looks at this case in the round, both the way in which we have approached the application and what he is willing to offer to secure his return, bail can properly be varied. It is a reasonable request in our submission and it would be, with the greatest respect to the Crown, bordering on oppressive and certainly disproportionate to not allow him to perform this duty at the end of his mother's life .
Then, from Mr McKone KC:
MR McKONE: Your Honour, the concern the police have, of course, is that he would not return from Pakistan. He faces Counts 8 and 9. JUDGE SINGH: Yes. MR McKONE: They are offences of rape in circumstances where a long sentence would be imposed if he was convicted. We accept he has significant ties in the United Kingdom but he also has significant ties in Pakistan as well. The police are concerned that he will not return. That being said, I concede that the defence have put a lot of steps in place to guard against that concern but the final (inaudible) is that their concerns have not been satisfied. Can I assist further? JUDGE SINGH: No. Thank you very much .
Then, from the Judge:
JUDGE SINGH: Mr Wright, I have a great deal of sympathy with the position that Mr Hussain of course finds himself in and I fully accept that this is a reasonable request that has been made on his behalf. I am afraid the nature of the offences that the defendant faces is going to mean inevitably if convicted this will be a significant custodial sentence and any attempt to leave the jurisdiction, I am afraid, provides the opportunity of a substantial risk of the defendant not returning and I am afraid on that basis the application is refused. MR WRIGHT: Thank you very much. JUDGE SINGH: Thank you very much. Thank you. MR McKONE: Thank you, your Honour .
As was indicated at the hearing, the Claimant had seen his mother on 21 December 2022. There are further letters, updating this Court, from the mother's GP and from a hospital in Pakistan. What happened was that on 27 of December 2022 the Claimant's siblings took their mother to Pakistan she is now there in hospital. The GP's letter of 6 January 2023 confirms that the family are leading the care for the mother and that all of her children had been present. The letter from the hospital in Pakistan explains that her health condition is very poor and rapidly deteriorating.
The Claim
The claim for judicial review, which I have already held is arguable, rests on two distinct contentions. They are advanced orally by Mr Wright KC, who adopts the skeleton argument of Matthew Stanbury.
i) The first ground advanced is that the Judge gave legally inadequate reasons for his ruling. Mr...
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