Thomas v Crown Prosecution Service

JurisdictionEngland & Wales
JudgeLord Justice Lloyd Jones,Mr Justice Collins
Judgment Date02 December 2015
Neutral Citation[2015] EWHC 4079 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date02 December 2015
Docket NumberCO/3745/2015

[2015] EWHC 4079 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Lord Justice Lloyd Jones

Mr Justice Collins

CO/3745/2015

Between:
Thomas
Appellant
and
Crown Prosecution Service
Respondent

Mr Leigh Webber (instructed by G T Stewart) appeared on behalf of the Appellant

Mr Simon Heptonstall (instructed by Crown Prosecution Service) appeared on behalf of the Respondent

Lord Justice Lloyd Jones
1

This is an appeal by case stated. It relates to a decision on bail taken by District Judge Hammond, sitting at Greenwich Magistrates' Court, on 21 May 2015.

2

The case stated reads as follows:

"Case

1 On the 26 February 2015 an information was preferred by the respondent against the applicant that he on the 1 September 2014 within the jurisdiction of the Central Criminal Court caused Ms Chloe Hodgeson to fear that violence would be used against her by your course of conduct which you knew or ought to have known would cause fear of violence to Ms Chloe Hodgeson on each occasion in that on this date you left threatening voice messages on her mobile phone stating that you would throw her out of a window and also assault her with hot water, bleach and salt. Contrary to Section 4 (1) and (4) of the Protection from Harassment Act 1997.

2 I heard the said information against the applicant, Mr Thomas, on the 21 May 2015 at Greenwich Magistrates' Court in the sixth and final week of the 'trial blitz' which took place in April and May 2015. The complainant, Ms Hodgeson, attended court and gave evidence. At the end of her evidence, the applicant, Mr Thomas, applied for the charge to be put again, and entered a plea of guilty.

3 The applicant, Mr Thomas, had been on conditional bail pending the trial of the allegation of harassment with violence contrary to Section 4 Protection from Harassment Act 1996. He had attended court for trial as directed on the 21 May '15.

4 After Mr Thomas changed his plea to guilty, I heard full mitigation. Having done so, I rejected, giving full reasons, an application to adjourn for a pre-sentence report. I also rejected, giving full reasons, a submission to give residual credit for the plea of guilty entered after Ms Hodgeson had given her evidence. I then imposed an immediate term of 18 weeks imprisonment for the offence, giving full reasons for the sentence.

5 Immediately after sentence when Mr Thomas was still in court, his advocate, Mr Webber, told me that there may be an application that same afternoon for bail pending an appeal against sentence. I stated that an application for bail should be made to the Crown Court. I did not allow further submissions. Mr Thomas, the applicant, was told that as far as this court was concerned, the case was now closed and he was taken away by the dock officers.

6 Written notice of an intention to appeal the sentence was then lodged at court by the applicant's solicitor, Mr Webber. I was asked to go back in to court to hear an application for bail pending appeal which I refused. My refusal was communicated to the advocate by Mr Catt, the court associate who was sitting with me in court that day.

7 I then received a message via Mr Catt that the advocate for the applicant, Mr Webber, required me to state my reasons for refusing to hear a bail application. I refused to provide those reasons. My refusal was communicated to the advocate by Mr Catt.

8 Section 113 of the Magistrates' Courts Act 1980 makes provision for the Magistrates' Court to consider bail in such circumstances:

Section 113 Bail on appeal or case stated

(1) Where a person has given notice of appeal to the Crown Court against the decision of a magistrates' court or has applied to a magistrates' court to state a case for the opinion of the High Court, then, if he is in custody, the magistrates' court may grant him bail.

(2) If a person is granted bail under sub-section (1) above, the time and place at which he is to appear (except in the event of the determination in respect of which the case is stated being reversed by the High Court) shall be -

(a) if he has given notice of appeal, the Crown Court at the time appointed for the hearing of the appeal;

(b) if he has applied for the statement of a case, the magistrates' court at such time within 10 days after the judgment of the High Court has been given as may be specified by the magistrates' court;

and any recognizance that may be taken from him or from any surety for him shall be conditioned accordingly.

(3) Sub-section (1) above shall not apply where the accused has been committed to the Crown Court for sentence under Section 37 …..

(4) Section 37 (6) of the Criminal Justice Act 1948 (which relates to the currency of a sentence while a person is released on bail by the High Court) shall apply to a person released on bail by a magistrates' court under this section pending the hearing of a case stated.

9 In my view, there was no reason to hear any such application. Mr Thomas had been convicted and had no right to bail. In my further opinion, it would have been a waste of court time and resources to have allowed the application to have been made in this case, applying the overriding objective as per Part 1 of the Criminal Procedure Rules 2014.

10 Such reasoning was implicit in my decision to impose an immediate custodial sentence and implicit in my direction that any bail application should be made to the Crown Court.

Questions for the Divisional Court.

1 Does Section 113 Magistrates' Courts Act 1980 create an entitlement to apply for bail pending appeal in every case in which such a request is made?

2 Does Section 113 Magistrates' Courts Act 1980 place an obligation on the Magistrates' Court (whether by sentencing tribunal or otherwise) to hear an application for bail pending appeal in every case where such a request is made?"

3

On behalf of the appellant, it is submitted by Mr Leigh Webber that the district judge fell into error by refusing to hear the bail application. In particular, he submits that the question of bail is fundamental, relating, as it does, to the liberty of the subject. He submits that court time and resources should not have a bearing on deciding whether or not to hear a bail application. He submits that, in order for a decision to be made judiciously, argument should be heard for otherwise the judge cannot know the substance of the application. He makes the point that the fact that the presumption in favour of the grant of bail under Section 4 of the Bail Act 1976 did not apply in the circumstances of this case as it would in the case of an unconvicted defendant does not defeat the appellant's entitlement to make an application in the Magistrates' Court and to have that application considered.

4

On behalf of the respondent, Mr Simon Heptonstall submits that Section 113 of the Magistrates' Court Act 1980 provides an opportunity to apply for bail but not an entitlement. He submits that the terms of Section 113 (1) are permissive as opposed to mandatory or directive. He seeks to draw an analogy with bail pending applications to the Criminal Division in the Court of Appeal under the Criminal Appeals Act 1968. He submits that the better course is for such bail applications to be made to a judge of the appellate court so that in the circumstances of this case the better course would have been for the bail application to be made directly to the Crown Court. He constructs an argument by reference to the Criminal Procedure Rules to the effect that the Rules Committee intended that applications for bail should be made to the Crown Court. He takes the point that there is no indication in the case stated that in fact there had been compliance with Rule 63.2 (3) (b) which...

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