Neutral Citation Number: [2010] EWHC 129 (Admin)

Case No. CO/15564/2009 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 14th January 2010
 
B e f o r e:

LORD JUSTICE AIKENS 

MR JUSTICE OPENSHAW 
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Between: 
DANNY BURNS 
Applicant 
v 

WOOLWICH CROWN COURT 
Respondent
and

CROWN PROSECUTION SERVICE
Interested Party 
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Computer‑Aided Transcript of the Stenograph Notes of  
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John Cooper (instructed by Edward Fail Bradshaw & Waterson) appeared on behalf of the Applicant
The Respondent was not represented and did not attend 
Gary Pons (instructed by the Crown Prosecution Service) appeared on behalf of the Interested Party 
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J U D G M E N T 

1.	LORD JUSTICE AIKENS:  This is a claim for judicial review of a decision of His Honour Judge Moore to refuse bail to the claimant when the judge was sitting in the Crown Court at Woolwich on 17th December 2009.
2.	The facts of the case are as follows: the claimant was arrested on 9th December 2009 and he was interviewed.  He made no comment to all questions asked.  He was then charged with three offences: first, fraud by misrepresentation (contrary to sections 1 and 2 of the Fraud Act 2006), which offence was said to have taken place between 1st January and 1st April 2009; secondly, blackmail, which offence was alleged to have taken place on 17th March 2009; thirdly, the possession of criminal property, namely a cheque, which was alleged to have taken place of 10th March 2009.
3.	Those charges arose from actions, it is alleged, of the claimant and others in persuading a 76‑year‑old man, Mr Ronald Plummer, that his property was in urgent need of repair.  It was said that this would cost him a great deal.  Mr Plummer obtained three banker's drafts in February and March 2009, the first was for £55,000, the second for £65,000 and the third, which was in fact a cheque, for £20,000, thus totalling £140,000.  Mr Plummer's bank apparently became concerned when he sought a fourth banker's draft for £25,000.  The third in this series had been paid into the claimant's bank account.
4.	When the police interviewed the claimant on 9th December 2009 they asked him about other sums that had been paid into his bank account in January and August 2009.  They received "no comment" answers, to those questions.
5.	After the charges were laid, the claimant was remanded in custody.  He attended the Woolwich Magistrates' Court the following day, that is to say 10th December 2009.
6.	The subsequent events I take from an affidavit which has been sworn by Ms Samantha Yelland, she is a solicitor with Bradshaw and Waterson, and who has represented the claimant since then.
7.	The Crown had indicated prior to the actual hearing on 10th December at the Magistrates' Court that a final decision on whether or not to oppose bail had yet to be taken.  However, before the matter was called on, the Crown indicated that it would not object to bail.  This was stated to the court and, having heard the facts, the judge (District Judge Hamilton), indicated that he would be content to admit the defendants, of which there were four, to conditional bail.  
8.	He granted conditional bail to the claimant on the following terms: first, that he reside in a caravan at a specific address in New Romney, Kent.  It is noted by Ms Yelland that the District Judge was fully aware that this was a caravan site and that the other defendants were also resident on the same site.  The second condition was that the claimant should not attend within the M25, save to attend solicitors by prior written appointment, or to attend court.  The third condition was that the claimant must report to Ashford Police Station every Wednesday between 6.00 pm and 8.00 pm.  The fourth condition was that the claimant should not contact the complainant, Mr Ronald Plummer, either directly or indirectly.
9.	The claimant and the three co‑defendants were all bailed to attend Woolwich Crown Court on 17th December 2009.  The claimant reported to Ashford Police Station on Wednesday, 16th December 2009, in accordance with the bail conditions.  
10.	He attended Woolwich Crown Court on 17th December.  At that hearing counsel for the prosecution was Mr Gary Pons, who has appeared on behalf of the respondent today.  At the hearing Mr Pons gave an indication to those representing the four defendants that he would not object to bail.
11.	There was then a hearing before His Honour Judge Moore.  The judge set out a timetable for the service of papers and the subsequent plea and case management hearing.  We understand that that hearing is to take place on 10th February 2010.  The judge then indicated that he assumed that the defendants were in custody.  Mr Pons informed the judge that all the defendants were in fact on bail.
12.	The judge then asked to hear the facts of the case.  He established that a co‑defendant, Miss Pope, was not charged with the more serious offences.  The judge therefore remanded her on bail on the same conditions as had been imposed by the District Judge.  
13.	The judge then asked the officer in the case to give evidence on oath.  The officer informed the judge that the police had made investigations about the other monies found in the claimant's account, in which he had answered "no comment" in interview.  He told the judge that the police intended to arrest the claimant in relation to one of the other deposits that was in his account.  
14.	The judge then examined the claimant's previous convictions.  There are, in fact, a number of these, but the offences are very different to the offences of which he is now accused.  First, there was an offence of affray in 1988, for which he received a conditional discharge; secondly, there was an offence in 1998 of disorderly behaviour, for which he was fined £75; lastly, there was an offence of theft in June 2008.  That related to the theft of some documents relating to child maintenance.  For that he received a conditional discharge.  There was a caution in 1994 in relation to criminal damage and a warning in 2004 in relation to harassment.
15.	The judge then indicated that he was investigating the bail conditions.  At that stage Ms Yelland and counsel for two of the other defendants (other than Miss Pope that is), discussed the issue of whether the Crown intended to change their position and now object to bail.  Ms Yelland's recollection, as attested in her affidavit, was that whilst the officer was giving evidence and Mr Pons was not addressing the judge, Mr Pons was asked by counsel for the co‑defendants whether he intended to change his stance and now object to bail.  Ms Yelland's evidence is that Mr Pons indicated he would not be doing so.
16.	The judge was then informed that the other two male defendants had no previous convictions and that there were no other deposits alleged to have been in their account.  The judge granted those two defendants bail and removed the reporting condition, but imposed a curfew.  The judge indicated to Ms Yelland that he was minded to revoke the claimant's bail and he put the matter back so that Ms Yelland could take further instructions.  Ms Yelland then attended the claimant in the cells and took instructions.  She established that he had been questioned about the other deposits in his account in the police station interview.  As I have already indicated, there was no comment to the questions he was asked.  Ms Yelland was also aware at that stage that the Crown knew about the other monies in the account because that information had been provided at the Magistrates' Court hearing in the Crown's own case summary.
17.	The matter was then called back on before the judge.  At this stage it appears that Mr Pons was unable to continue to deal with the case.  He had therefore passed the matter to another member of the Bar, who was a member of his chambers.  That person had not had sight of the file, nor had he been involved with the proceedings prior to his attendance then at court. 
18.	Ms Yelland made the application for bail.  She told the judge what had happened at the Magistrates' Court hearing and corrected the judge on a point after the new prosecuting counsel had apparently submitted that there had always been an objection to bail.  Ms Yelland explained to the judge that she had understood at the beginning of the hearing before him that the Crown had intended not to object to bail.
19.	At this stage the judge asked counsel then appearing for the prosecution whether or not the Crown did indeed object to bail.  Counsel spoke to the officer in the case and said that they objected to bail on the following grounds: first, that the claimant would commit further offences, because of his previous convictions and the monies in his account; secondly, that he would fail to surrender to the court, as he lived in a caravan park.
20.	Ms Yelland then continued to make her bail application, indicating that the nature of the evidence in respect of the two more serious charges was relatively weak, and also submitting that the claimant had used his best endeavours to try and show his lack of involvement.  She pointed out to the judge that the claimant had attended court that day, aware of the serious nature of the allegations, and that the District Judge had been aware that all the defendants live on a caravan site but had still granted bail in any event.  She dealt with the previous convictions and submitted that they were unrelated matters of some age.  Ms Yelland submitted that there had been no change of circumstances since the last hearing, as everyone was fully aware of the outstanding monies in the account and that they were being investigated.  
21.	The judge decided to remand the claimant in custody.  He said that they were extremely serious offences for which the claimant would receive a lengthy custodial sentence if convicted.  The judge said that the potential arrest, in relation to the other monies in the account, was something new which did amount to a change of circumstance so that he was entitled to look at the position of bail afresh.  The judge also stated that there were other monies in the account and that he had taken the view that if granted bail the claimant would commit further offences, would interfere with witnesses and that he would fail to surrender owing to lack of community ties.
22.	A handwritten note has been prepared by the judge for the purposes of the present case.  It was prepared after the judge had seen a statement of facts which was appended to the application for judicial review.  The statement of facts contains much the same information as in the affidavit of Ms Yelland.  The note refers to the information that the judge was given by the officer in the case in his evidence on oath.  
23.	The judge then says, and I quote from the manuscript note:
"Those amounts totalled approximately £80,000, and it was believed Mr Burns was to be arrested and presumably charged and there was a clear inference that he had been committing offences of a similar nature.  I considered this fact to be a new and important factor when considering Mr Burns' bail.  He was/is a gentleman who lives in a mobile home in a caravan park.  Consequently, given the gravity of these additional matters, I revoked bail.  Furthermore, I believe I stated in open court that the prosecution on the next occasion (PCMH) should clarify the position of Mr Burns with regard to these matters (in order to facilitate a further bail application if appropriate)."
24.	Mr Cooper, who has appeared for the claimant today, has made the following submissions: (1) He submits that the judge was not entitled to look at the issue of bail afresh because there were no relevant changes of circumstance that had occurred since the matter was before the Magistrates' Court, and that there were no new relevant facts.  (2) He submits that the removal of bail frustrated the legitimate expectations of the claimant in circumstances where he had been granted bail and that the prosecution had said right up until the last moment that it did not oppose the renewal of bail by the Crown Court.  (3) The decision of the judge was, in all the circumstances, irrational and cannot be supported.
25.	Mr Pons, on behalf of the respondent, has submitted: (1) that there was indeed a change of circumstance, (2) that the doctrine of legitimate expectation has no place here and, (3), that the decision of the judge cannot be characterised as irrational. 
26.	Appeals to the High Court from the refusal of a Circuit Judge to grant bail were abolished by section 17(3) of the Criminal Justice Act 2003, which came into force on 5th April 2004.  However, it was established in the case of M v Isleworth Crown Court [2005] EWHC 363 (Admin), a decision of this court, that a refusal to grant bail was susceptible to judicial review.  Maurice Kay LJ stated at paragraph 11, that this is a jurisdiction which will be exercised "very sparingly indeed".  He said that the court would apply Wednesbury principles, but in a robust way (paragraph 12).  It is also important to note that it is the Crown Court Judges who have the experience in dealing with bail applications day in and day out.
27.	The position with the claimant was this: (1) he was charged with three serious offences.  (2) He did have a criminal record, although it was not a long or a serious record; the theft, for which he had received a conditional discharge, was nothing like the current charges.  (3) There were other charges that were about to be made against him as a result of investigations that had been made between 9th December 2009 and the hearing before the Crown Court on 17th December 2009.
28.	I deal with the first argument put forward by Mr Cooper: was there a change of circumstances?  In my view there was.  There was a change of circumstance because since the answers (unhelpful) that had been given by the claimant in the interview on 9th December, investigations had taken place and a decision had been made to charge the claimant with two new charges.  The judge was not told of the details of the investigations, but, as is clear from Ms Yelland's affidavit, the judge was told of the fact that investigations had been made and that charges were about to be brought.  In my view, therefore, the judge was entitled to look at the issue of bail afresh.
29.	I consider next the question of the reasonableness or rationality of the judge's conclusion to refuse bail.  In my view the judge acted rationally in concluding that he should refuse bail for the reasons that he gave.  Given what he had learnt, which was not before the District Judge, it was reasonable to take the view that there had been a course of events of offences during 2009 and that this formed a part of a series.  Those offences, if they did occur, had occurred whilst the claimant was the subject of a conditional discharge.  In those circumstances, it was not, in my view, irrational or unreasonable to conclude that there was a likelihood, or a possibility, of further similar offences being committed.  There was no unreasonableness in the views that the judge took, as recorded in his note.
30.	It is possible that members of this court might not have taken the same view, or might not have done things in the way that the judge did.  But that is beside the point.  The decision of the judge was within reasonable bounds and cannot, by any stretch of the imagination, be described as irrational.
31.	As for the argument that the legitimate expectations of the claimant were frustrated by the removal of bail, this argument cannot possibly succeed.  It is not for the prosecution to give legitimate expectations with regard to bail.  It is not the prosecution that decides this matter; it is the court.  What happened in this case could not possibly give rise to any legitimate expectation that bail would be continued.
32.	For those reasons, despite the cogent submissions of Mr Cooper, this judicial review must be refused.
33.	MR JUSTICE OPENSHAW:  I agree.
34.	MR COOPER:  Thank you, my Lords.  Can I refer my Lords to the judgment of Nichol J on 22nd December concerning the reservation of costs from that hearing, please?  It is right to say that the applicant is privately funded and the costs of that hearing were reserved.  Very briefly, we attended on that day and the prosecution were not represented.  My Lord, at the time, was concerned, firstly, to discover whether the Crown had been informed of the hearing and we showed the learned judge the document I am about to hand up to my Lords, which was to the Crown Prosecution Service, Greenwich Borough Unit, which said this: 
"We have written to Woolwich Crown Court requesting that they vacate tomorrow's hearing..." 
This is a letter dated 22nd December. 
"... for an application for bail on behalf of the above‑named client.  The reason for this is that our application for judicial review at the High Court has unexpectedly been listed for tomorrow."
(Quotation not checked).
35.	That is the 23rd.  I have read it verbatim.  If my Lords want to see it, it is here.  I will hand it up.
36.	LORD JUSTICE AIKENS:  I do not think we need to see it at the minute, but you will explain what it is coming to.
37.	MR COOPER:  Of course.  The application is that the matter might have been dealt with, certainly at that time.  I made an application ‑‑ 
38.	LORD JUSTICE AIKENS:  I do not quite understand what you mean.
39.	MR COOPER:  I made an application to the judge at the time, given that it was a relatively urgent application by its nature, that the application for leave also be subsumed into a full application.
40.	LORD JUSTICE AIKENS:  A rolled‑up hearing.
41.	MR COOPER:  Rolled‑up, and the learned judge at the time indicated that whilst he was minded to have a full argument, and we were there for half an hour or so, after full argument to grant us leave, he was not minded to hear the full case, because the Crown were not in attendance.  
42.	We would submit that certainly the Crown should bear the costs of that application, because it was no fault of the applicant at the time that it was not dealt with fully without necessarily troubling my Lords today.  We still do not know why the Crown did not attend.
43.	LORD JUSTICE AIKENS:  You mean attend the leave application? 
44.	MR COOPER:  Attend the leave application, yes.
45.	LORD JUSTICE AIKENS:  It is not that unusual for a respondent not to attend a leave application, even on an oral hearing, is it, even where there is a possibility that it could be all rolled‑up.  I understand you have said that, but ‑‑
46.	MR COOPER:  It did cause Nichol J ‑‑ concern is putting it too highly ‑‑ was of interest to him, if I can put it as neutrally as possibly, as to why the Crown were not there on that occasion.
47.	LORD JUSTICE AIKENS:  I suspect they took the view: if he does not grant leave, that is all right, but if he does, then we can deal with the matter when it comes on for a full hearing.  Therefore, there is no need to turn up either way and we will save the money for something else.
48.	MR JUSTICE OPENSHAW:  Yes, money is short.  It seems a perfectly sensible attitude to take.
49.	MR COOPER:  My Lords, I will not pursue it any further.
50.	LORD JUSTICE AIKENS:  I do not think it is a case for pursuing the Crown for the costs of that hearing.  
51.	Any other applications?
52.	MR PONS:  My Lord, given that your Lordship heard that the claimant is privately funded, in those circumstances I apply for costs.
53.	LORD JUSTICE AIKENS:  Do you have any kind of schedule of your costs?
54.	MR PONS:  I do not, but I can tell you what they will be, in terms of my costs. 
55.	LORD JUSTICE AIKENS:  Is it your costs alone, Mr Pons? 
56.	MR PONS:  It is my costs alone, which will be £700.
57.	LORD JUSTICE AIKENS:  Nice round figure.
58.	MR PONS:  I have rounded it down.
59.	LORD JUSTICE AIKENS:  Well, what do you say about that application, Mr Cooper? 
60.	MR COOPER:  I reiterate, my Lords, in response to my learned friend's application, the submissions I made a moment ago concerning 23rd December.  The matter might have been expeditiously dealt with then.
61.	LORD JUSTICE AIKENS:  It could have been, but what if you had lost then?  You would still be faced with an application for costs by Mr Pons for £700, would you not? 
62.	MR COOPER:  My Lord, I would.  I have to take it from Mr Pons that is the sum.  He has obviously been instructed for some time in the matter.
63.	LORD JUSTICE AIKENS:  Yes, £700 does seem a bit on the steep side, Mr Pons, I must say, but my Lord and I will just confer for a minute.  (Pause).  We think that the respondent is entitled to have the costs of this hearing.  We think that the figure of £700 is too high.  Making a summary assessment, we are going to assess those costs at £500, Mr Pons.  That is the order we will make.  Within 28 days?
64.	MR COOPER:  Might I take brief instructions, my Lord?  (Pause).  Thank you.
65.	LORD JUSTICE AIKENS:  Thank you both very much for your helpful submissions.