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Success Resisting JR Application

Jonathan Sandiford recently appeared before the Administrative Court and successfully resisted an application for Judicial Review of a decision of a trial judge to revoke the bail of a defendant for attempting to intimidate Prosecuting Counsel. 

Jonathan Sandiford recently appeared before the Administrative Court and successfully resisted an application for Judicial Review of a decision of a trial judge to revoke the bail of a defendant for attempting to intimidate Prosecuting Counsel. 

The case raised directly the important question of when the jurisdiction of the High Court is restricted by Section 29(3) of the Senior Courts Act 1981.


B e f o r e :

(Sitting as a Judge of the High Court)




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Mr A Barraclough (instructed by Chambers Solicitors) appeared on behalf of the Claimant
Mr J Sandiford (instructed by Crown Prosecution Service) appeared on behalf of the Interested Party



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    1. The central question in this case is whether it is permissible to bring a judicial review claim in respect of a decision by a judge presiding over a trial upon indictment in the Crown Court to revoke the bail of a defendant in the midst of the trial.


    1. That question brings section 29(3) of the Senior Courts Act 1981 into sharp relief. As far as can be ascertained by counsel and me, this issue has never been directly addressed by any court heretofore although there are a variety of cases where this issue as received tangential consideration. No previous case has been directly upon this point: namely whether a bail decision may be challenged by judicial review in the midst of a trial as opposed to before or, indeed, after the trial pending sentence or a retrial.


    1. Ideally this issue should be resolved by a High Court Judge but in order to minimise the disruption to the extant trial it had to be resolved by me. That was a pragmatic decision. There was no High Court Judge in Leeds available to deal with this expeditiously and to send the case to London would have had a serious effect upon the ongoing trial.


    1. I heard this case on Monday of this week (8th July 2013) at Leeds, when I decided: (i) the Administrative Court does not have jurisdiction to hear this judicial review claim, as the decision as to bail occurred during a criminal trial on indictment in the Crown Court; and, (ii) even if there was jurisdiction, the claim for judicial review is not properly arguable upon the merits, and permission to apply would not have been given.


    1. These decisions were announced and communicated to the trial judge. This judgment gives my reasons for so deciding. The order of the court to be perfected after delivery of this judgment strikes out the judicial review claim for want of jurisdiction but will record, by way of recital, the alternative disposal in case I am wrong upon the central question.


The Judicial Review Claim

    1. This claim for judicial review is made by Yasser Uddin (the claimant) who seeks to impugn a decision of His Honour Judge Christopher Batty made on 26th June 2013 in the Crown Court at Leeds, when he revoked the bail thereto enjoyed by the claimant. It is asserted the judge was Wednesbury unreasonable when he decided as he did. The case was listed for an oral permission hearing, but it occurred to me and to the Crown Prosecution Service (CPS) there was and remains a jurisdictional problem. The fact is that the claimant is in the midst of a trial on indictment in the Crown Court. Consequently section 29(3) of the Senior Courts Act 1981 is potentially engaged. Put simply: the High Court, and this court is part of the High Court, does not have jurisdiction to make any order in respect of the Crown Court "in matters relating to trial on indictment".


    1. Before dealing with that matter directly it is important to set the scene with a brief summary of relevant events.


The Facts

    1. The claimant is on trial in the Crown Court upon an indictment containing a count of conspiracy to import 160 kilograms of heroin into the United Kingdom via the postal system. There are a number of other defendants in the trial, some on bail, some not. I do not need to set out any details relating to them. The criminal trial is likely to take several weeks more. It commended five weeks ago.


    1. The prosecution case is that the claimant (as a postman) used his inside knowledge to track and make arrangements for receipt of packages of heroin from Pakistan to the United Kingdom. The case is very serious and, if convicted, the claimant faces a very substantial prison sentence. Others played differing roles in the conspiracy. It is a serious and complex case. The claimant was charged in February 2012 and when he appeared before Bradford Magistrates' Court on 12th February 2012 he was admitted to bail with various restrictive conditions embracing residence, reporting to a police station and having no contact with named individuals. There has been no assertion of any breach of bail until 26th June 2013.


    1. The trial commenced on 10th June 2013. It continues and was only briefly halted to allow for the hearing of this case on Monday last. On 26th June 2013 Judge Batty was alerted to an incident which I shall call the "car park incident" where it is asserted the claimant sought to threaten or intimidate junior counsel for the prosecution when he encountered her in a car park after court on 24th June 2013. Counsel furnished the judge with a witness statement, submissions were made and, having taken into account all the circumstances, he revoked the bail of the claimant.


    1. The claim for judicial review was made on 3rd July 2013. It was placed before me on 4th July 2013. Having considered the matter and the circumstances of the case I decided that an oral permission hearing be convened, at which hearing the jurisdiction point could be resolved. It was impossible for the case to be conveniently heard by a High Court Judge as I have explained earlier in this judgment.


Two Important Matters

    1. Two matters are of importance which need repetition and emphasis: (i) the claimant is on trial in the Crown Court upon indictment; and (ii) the bail decision to revoke the theretofore grant of bail was made in the midst of a trial on indictment (indeed during the fourth week of the trial).


Section 29(3) of the Senior Courts Act 1981

    1. Section 29(3) of the 1981 Act provides:


"(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 [mandatory, prohibiting or quashing orders] as the High Court possesses in relation to the jurisdiction of an inferior court."
    1. There are a whole range of cases involving decisions made by Crown Court judges relating to trials on indictment. These include - this is by no means an exhaustive list, simply a flavour of it all by way of example - costs after an acquittal, vetting a jury panel, refusal of a judge to grant legal aid for a Queen's Counsel and the issue of a witness summons.


The Isleworth Crown Court case and the Manchester Crown Court case

    1. My attention has been called to R (on the application of M) v Isleworth Crown Court and Her Majesty's Customs & Excise [2005] EWHC 363 (Admin) which was a decision of the Divisional Court. In that case the claimant had plainly been sent to the Crown Court for trial and "at an early stage" (the judgment is silent as to precisely when) a Crown Court judge revoked bail. The old route to challenge that was to go to a High Court judge in chambers, but that was much criticised by Auld LJ in his report on the criminal justice system. In consequence section 17(3) of the Criminal Justice Act 2003 dispensed with that and confined bail decisions to judges of the Crown Court.


    1. Maurice Kay LJ (with whom Moses J, as he then was, agreed), said this about section 29(3) of the 1981 Act:


"... the present application is for judicial review of a refusal of bail by the Crown Court. Two jurisdictional issues require comment, although there is no dispute about them in the present case. The first is the exclusion of judicial review in respect of 'matters relating to trial on indictment' by section 29(3) of the Supreme Court Act. It is common ground, and I accept, that a decision as to bail at an early stage of criminal proceedings does not relate to trial on indictment as that expression has been interpreted in cases such as R v Manchester Crown Court ex parte DPP [1994] 98 Cr.App.R 461 HL, where Lord Browne-Wilkinson stated that the question to be posed when considering the "trial on indictment" test was as follows:
"'Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?' ... If the answer is 'no', the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial: therefore, it may well not be excluded by the section."
    1. It is necessary to look at R v Manchester Crown Court ex parte DPP in a little more detail. It was a decision of the House of Lords. In that case the claimant was a Member of the European Parliament who was indicted with crimes of dishonesty relating to two expenses claims from the European Parliament. He pleaded not guilty. Morland J was asked to quash the indictment by reason of a variety of technical issues relating to the sovereignty of the European Parliament. Judicial review of Morland J's decision to quash the indictment was sought. The Divisional Court did so. There was an appeal to the House of Lords who restored the order of Morland J. Section 29(3) came into sharp relief. It is to be noted in that case, no trial had commenced upon the indictment, indeed the trial judge quashed it.


    1. In the House of Lords, Lord Browne-Wilkinson gave the leading speech with whom Lord Keith of Kinkel, Lord Templeman, Lord Jauncey of Tullichettle and Lord Mustill agreed. Lord Browne-Wilkinson analysed the cases upon that point including the "helpful pointer" as to the application of the exclusionary provision in the speech of Lord Bridge in Smalley v Warwick Crown Court [1985] AC 622 at 640 to 641.


    1. The question to be asked, according to Lord Bridge in Smalley, is whether the order that is the subject of review is an order affecting the conduct of a trial on indictment. In a later case, Samson v Crown Court at Croydon [1987] 1 WLR 194, Lord Bridge made it clear his "helpful pointer" was not a test. Other cases were examined by Lord Browne-Wilkinson who concluded the time had been reached to give another helpful pointer. He said this:


"It may therefore be a helpful further pointer to the true construction of the section to ask the question: 'Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)?' If the answer is 'Yes', then to permit the decision to be challenged by judicial review may lead to delay in the trial: the matter is therefore probably excluded from review by the section. If the answer is 'No', the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial: therefore it may well not be excluded by the section.I must emphasise that again, this is not an attempt to give a comprehensive definition of the meaning of statutory words. It is merely a third helpful pointer. There may be cases where it points in the wrong direction."

Helpful Pointers

    1. Those decisions influenced the view of Maurice Kay LJ that the speech of Lord Browne-Wilkinson posed a test of universal application. There is, however, a central thread to these cases, to which I shall come after reviewing other cases.


Other Cases

    1. A range of other cases have been called to my attention, namely R v Chelmsford Justice ex parte Chief Constable of Essex (1994) 99 Cr App R 59, R (on the application of) Shergill v Harrow Crown Court [2005] EWHC 648 (Admin) , TH v Crown Court at Wood Green & Ors [2006] EWHC 2683 (QB), the R (on the application of)Fergus v Southampton Crown Court [2008] EWHC 3273 (Admin), R (on the application of) F v Southampton Crown Court [2009] EWHC 2206 (Admin), KSS v Northampton Crown Court [2010] EWHC 723 (Admin), R (on application of) NB v Central Criminal Court [2010] EWHC 667 (Admin) and R (on the application of) Rojas v Snaresbrook Crown Court [2011] EWHC 3569 (Admin).


    1. In Shergill Collins J described the law as of 2005 as not being in a happy state in relation to section 29(3). That case related to a bail decision in advance of a trial . The judge held the Administrative Court could judicially review a bail decision. Collins J said this:


"6. I am bound to say that I am not entirely happy with the expression used by Maurice Kay LJ referring to an 'early stage of criminal proceedings' because it seems to me that if the principle referred to by Lord Browne-Wilkinson is applicable, there is no reason to limit it to an early stage of the proceedings. The only thing I would say is that obviously if the trial has commenced and a decision is made in the course of the trial to refuse bail, then I can well see that it may be that the situation is somewhat different because clearly if there is an application made to this court, that could affect the continuing progress of the trial itself and that should not be permitted to occur. But I see no reason why an application should not be made provided the trial goes on in the meantime, because the nature of the application and whether it does indeed relate to trial on indictment does not seem to me to be a matter which ought to be determined by the stage which the proceedings have reached.
7. It perhaps is not necessary to form any concluded view about that. Suffice it to say that I am persuaded that any application that arises, certainly before the trial itself actually starts, is one which can be dealt with by this court. I do not reach any final decision, as I do not need to, as to what the position would actually be had the trial itself commenced."

I have to grapple with exactly the problem identified by the judge.

    1. In TH, the Divisional Court (Auld LJ and Wilkie J) held that a decision by a trial judge to detain a witness pending receipt of further evidence in the middle of a trial was a matter relating to a trial on indictment. In Fergus, Silber J accepted it was settled law that the appropriate remedy for refusal of bail is by way of judicial review in the light of abolition of the judge in chambers route of appeal by reason of section 17 of the Criminal Justice Act 2003. He went on to suggest it is a route to which robust judicial application of the Wednesbury test is necessary. The decision that fell to be quashed was made before the trial.


    1. In F, Collins J considered whether a bail decision after the trial, but before sentence, was amenable to judicial review. He stated that "on one view" questions as to bail are always going to be truly collateral to the indictment. He assumed he had jurisdiction although he had considerable doubts about it.


    1. In KSS, the defendant in a criminal trial lost his bail after the inconclusive first trial pending the retrial by virtue of the trial judge's decision. It was conceded by the CPS in that case that the decision post first trial did not relate to trial on indictment. Langstaff J was of the view that it was only in exceptional cases that the judicial review route of challenge was open.


    1. The section 29(3) point was not even raised in NB in relation to a pre-trial bail decision. In Rojas, Holman J accepted there were limited circumstances where this court could interfere by way of judicial review, basing himself on the Isleworth Crown Court case.


    1. The result of all of this appears to be that pre-trial decisions in the Crown Court and post trial decisions in the Crown Court are capable, at a jurisdictional level, to judicial review challenge. Collins J appears to have been the one judge who has been deeply troubled by this having regard to the wording of section 29(3).



    1. Mr Anthony Barraclough, for the claimant, has argued that the issue of bail has no effect on the conduct of the criminal trial and calls attention to what he asserts as a stream of cases where bail decisions have been challenged by way of judicial review despite, as he engagingly describes "some underlying tensions". Mr Jonathan Sandiford for the CPS calls attention to the precise wording of section 29(3), in particular the phrase "a matter relating to trial on indictment" and the fact that Parliament by the abolition of the judge in chambers procedure plainly invested bail decisions in a trial to a trial judge in the Crown Court. He also drew attention to the fact that the section 29(3) jurisdiction point does not appear to be argued fully or at all in some cases. He forcefully argued that the judicial review jurisdiction amounted an unwarranted interference in the jurisdiction of the Crown Court as a superior court of record, discharging its function entrusted to it by Parliament in clear terms. He furthermore contended that if such application became part of the ordinary currency of criminal trials the trial process would be delayed and materially interfere with the case. He described the process as potentially a wasteful diversion.



    1. Unlike some of the previous cases the matter has been briskly but effectively argued before me in this case. I have taken time to reflect upon the previous cases which have skirted round the issue with which I am concerned in this case. I confess I have a feeling of unease, whereby I may be approving a scenario where an aggrieved individual has potentially no means of challenging by appeal or review a first instance, indeed, only instance decision, during a criminal trial. With that said, subject to very limited statutory exceptions (as an example a terminating ruling) there is no concept of interlocutory appeals in a Crown Court trial on indictment. That is the choice Parliament has made. It must be respected. There is an obvious imperative in adopting that approach. The trial process must not be delayed and the Crown Court judge must be relied upon to deal with and, if necessary, rule upon all matters relating to the trial.


    1. It really would be an appalling spectre if defendants should be permitted to launch a diversionary tactic in the midst of a trial. It would mean everyone removes their focus from the trial to the judicial review. Even a claim devoid of merit has to be adjudged properly, albeit speedily. In this case a high level of research and preparation has been undertaken by counsel. Temporarily they have been compelled to focus on this satellite litigation. That is not what Parliament intended.


    1. Section 29(3) is in clear and unambiguous terms. The relevant words are "the High Court has no jurisdiction over a Crown Court" in matters relating to trial on indictment. It is noteworthy that Parliament did not employ the words "relating to the indictment", but has deliberately adopted the much broader phrase embracing "matters relating to the trial on indictment" (emphasis mine). That is a broad definition and it is plainly designed to prohibit this court trespassing upon the trial process itself. Collateral issues that have nothing to do with the trial are not covered by the prohibition.


    1. The one theme that stems from Lord Browne-Wilkinson's speech in the Manchester Crown Court case and Maurice Kay LJ in the Isleworth Crown Court case is the trial process, (the trial itself) is forbidden territory.


    1. Decisions made within the trial itself are plainly matters relating to trial on indictment. Decisions made in advance of the trial relating to bail and decisions made after the trial (before a retrial or before sentence) are amenable to judicial review challenge. I have to say I have certain misgivings about post trial/pre-sentence bail decisions as a trial is an indivisible process; but that issue is not for debate in this case. Accordingly, I will say no more on that.


    1. Of course, pre-trial rulings on the admissibility of evidence and such like are intrinsic to the trial and may not be challenged in judicial review proceedings. The purpose of bail is to secure the attendance of a defendant at his or her trial. Prior to the trial that is collateral to the trial process. However, once the trial has started, bail, and indeed other decisions (see TH) are "matters relating to trial on indictment"(emphasis added). Once the trial has started there is no demand for the issue to be intrinsic to the indictment, it simply has to be a decision or matter relating to the trial. Bail is plainly a matter that relates to the trial process once the trial has started. For my part, I am convinced this interpretation is compliant with European Convention jurisprudence, striking as it does a proportionate response by way of achieving the right balance between judicial decision and the need to focus on the trial, set against no High Court review.


The Answer to the Central Question

    1. In my judgment, section 29(3) prevents a judicial review challenge to a decision by a trial judge during a trial to revoke bail of a defendant. However, that forbidden territory has limitations and a clear boundary. Bail decisions before the trial and after the trial, if there to be a retrial or another trial (perhaps in a series of trials) are not decisions relating to the trial itself and are open to challenge by way of judicial review. Parliament has very clearly reposed trust in Crown Court judges in this regard. There is a boundary to this which is implicit in the judgments of Lord Browne-Wilkinson and Maurice Kay LJ in the Manchester and Isleworth Crown Court cases - judicial review challenges to which I have already made mention.


    1. That is the end to this judicial review claim. It falls to be struck out. It does not even reach the permission stage. However, in case I am wrong, I shall briefly cover the issue of permission.


If I am wrong permission to apply or not

    1. In the Isleworth Crown Court case Maurice Kay LJ said this:


"The test must be on Wednesbury principles, but robustly applied and with this court always keeping in mind that Parliament has understandably vested the decision in judges in the Crown Court who have everyday experience of, and feel for, bail applications. Of course if bail were to be refused on a basis such as "I always refuse in this type of case", or some other un-judicial basis, then this court would and should interfere."
    1. Similar expressions of a robust breach to this have been made by other judges in this court. I agree with them. The challenge, when permissible, to a bail decision is to be decided upon Wednesbury principles; nothing more, nothing less.


    1. The claimant asserts that the trial judge failed to properly consider all the relevant factors, in particular the good bail record of the claimant and the possibility of a more measured response to the car park incident by way of further bail conditions. It is argued that the reason given by the judge that there was a prima facie case of contempt by the claimant and the judges view it may be repeated, did not and could not justify revocation of bail. There are other procedural criticisms made of the judge which were expanded upon in Mr Barraclough's skeletal argument. Mr Sandiford submits the Bail Act 1976 provides an answer. The right to bail, he argues, is forfeited by reason of the finding of the judge that there were substantial grounds for believing the claimant, if released on bail, would commit an offence of bail or interfere with or otherwise obstruct the course of justice (see schedule 1, 2 and section 4(1) of the 1976 Act). It is averred that any reasonable judge, applying his mind to the facts as known by the judge, would be entitled to reach the conclusions reached by Judge Batty. These matters have been fully set out in Mr Sandiford's helpful skeletal argument. It is plain that the judge was deeply worried about the car park incident. He plainly disregarded the problem over text messages as an explanation was provided. The judge heard evidence and rejected the claimant's account. He found the claimant had been seeking to intimidate junior prosecution counsel.


    1. I have viewed all the material that has been made available to me and I am unable to say that the judge fell into any error basing myself upon the well-known Wednesbury principles. Here the judge was in the midst of a long and difficult trial, involving serious allegations of criminal behaviour. The car park episode was very serious behaviour by the claimant. All relevant factors were before the judge and he cannot be said to have reached a decision that no reasonable judge would have reached. He was amply justified in doing as he did.



    1. Had this claim been within the jurisdiction of this court, I would have refused permission to apply for judicial review without any hesitation. As it is the claim must be struck out for the reasons I have given earlier in this judgment. It is important the order giving effect to this judgment should contain a recital embracing the alternative disposal had this court possessed jurisdiction.


    1. This judicial review claim is struck out. I shall so order.


HIS HONOUR JUDGE JEREMY RICHARDSON QC: Gentlemen, what I have in mind to do is to make an order in the following terms. I would welcome any submissions you have to make upon this: "Upon hearing counsel for the claimant and interested party And upon recording that the defendant had notice of the hearing

And upon the court delivering judgment and determining (i) the court has no jurisdiction to hear this claim as the case is covered by section 29(3) of the Senior Courts Act 1982 and (ii) even if there had been jurisdiction the court would not have been minded to grant permission to apply for judicial review

And upon the court considering all the documents submitted by the parties

It is ordered that:

(i) this claim is hereby struck out; and.

(ii) the transcript of the judgment shall be sent to His Honour Christopher Batty for information."

Is there anything else that needs to be added?

MR SANDIFORD: No. The only issue might be costs but as I understand, the defendant is legally aided and he is in custody.

HIS HONOUR JUDGE JEREMY RICHARDSON QC: Ordinarily an interested party, as you are, does not get their costs save in exceptional circumstances which I do not think exist in this case.

MR SANDIFORD: I am obliged.

HIS HONOUR JUDGE JEREMY RICHARDSON QC: In fairness you might have had an argument given that you actually advanced the case and the Crown Court did not, but given here the defendant in the criminal case, the claimant in this case, is legal aided, there is really no point.

MR SANDIFORD: I am obliged.

HIS HONOUR JUDGE JEREMY RICHARDSON QC: Shall I say under item (iii): no order as to costs?

MR SANDIFORD: No. I am obliged.

My Lord, I suspect that my learned friend may have a similar request but might we have a copy of the transcript in due course?

HIS HONOUR JUDGE JEREMY RICHARDSON QC: All cases in the Administrative Court apart from renewed permission hearings are transcribed and go on the BAILII website and Casetrack.

MR SANDIFORD: That is very helpful.

HIS HONOUR JUDGE JEREMY RICHARDSON QC: This is an unusual case and I am going to direct that there is a transcript and it should be expedited, not overnight but certainly it should not wait long in the queue. It is an important case and it is one where, unlike a number of the previous cases, with the exception of the House of Lords case and the Manchester case -- correction the Manchester case and the Isleworth cases, there has been full argument; so I think on that basis it is somewhat important for future reference.

MR SANDIFORD: I am obliged.

HIS HONOUR JUDGE JEREMY RICHARDSON QC: There will be a transcript. I cannot tell you when that will be. It will also be given a neutral citation number so it will be available.

MR SANDIFORD: I am very grateful.

HIS HONOUR JUDGE JEREMY RICHARDSON QC: Unless there is anything else? Thank you both.

MR BARRACLOUGH: No. Thank you very much.

MR SANDIFORD: No thank you.

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