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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thomas v Crown Prosecution Service [2015] EWHC 4079 (Admin) (02 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/4079.html Cite as: [2015] EWHC 4079 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2 December 2015

1. LORD JUSTICE LLOYD JONES: 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 requires a bail application to the Magistrates' Court to be in writing. Finally Mr Heptonstall submits that the district judge's case management powers enabled her to decline to hear the application in the particular circumstances of this case.
5. Section 113 confers on the Magistrates' Court jurisdiction to grant bail in circumstances where a person has given notice of appeal to the Crown Court. I consider that the Magistrates' Court is not entitled to decline to hear such an application if it is properly made.
6. Moreover I consider that it is apparent from paragraphs 9 and 10 of the case stated that the judge misdirected herself as to the correct approach to such an application. First, her approach pre-judged the issue of bail. She could not have known in advance what the grounds might be. The application might not have been founded on matters of which she was aware as a result of her hearing the case at trial. Secondly, the fact that Mr Thomas had been convicted is not conclusive against the grant of bail; if it were, it would defeat the purpose of Section 113. Thirdly, to say that Mr Thomas had no right to bail misses the point. He certainly has no right to bail. The provisions of Section 4 of the Bail Act do not apply so there is no presumption in favour of bail. The issue is whether he is entitled to apply for bail and, if he does so, whether he is entitled to have his application considered. Fourthly, to say that this was implicit in the decision to impose an immediate custodial sentence confuses the appropriate sentence with the position pending an appeal against that sentence. It also confuses the merits of the bail application with the right to have it considered. Fifthly, the judge was not entitled to decline to consider the application and to say that it must be made to the Crown Court. The fact that an application can be made to the Crown Court is not a reason for refusing to consider an application made to the Magistrates' Court in accordance with Section 113.
7. Mr Heptonstall seeks to draw an analogy with bail pending applications to the Criminal Division of the Court of Appeal under the Criminal Appeals Act 1968. To my mind, he does not find any assistance here, not least because decisions such as Watton 1979 68 Crim App R 293, on which he relies, turn on the practice of the Criminal Division of the Court of Appeal. Moreover his submissions elide the question of whether bail should be granted on the merits and the question of whether there exists a power and/or a duty to consider and determine bail applications. Similarly, Mr Heptonstall's submission that the better course is for the bail application to be made to a judge of the appellate court is beside the point. The question for consideration here is whether there is an entitlement to make the application to the Magistrates' Court.
8. Mr Heptonstall does draw our attention to a curious feature in the drafting of the Criminal Procedure Rules. In this case we are concerned with the 2014 Edition of the Criminal Procedure Rules which were in force at the relevant time. CPR 63.2 (3) provides:

"(3) The appellant must serve with the appeal notice any application for the following, with reasons —

(a) an extension of the time limit under this rule, if the appeal notice is late;

(b) bail pending appeal, if the appellant is in custody;

(c) the suspension of any disqualification imposed in the case, where the magistrates' court or the Crown Court can order such a suspension pending appeal.

(4) Where both the magistrates' court and the Crown Court can suspend a disqualification pending appeal, an application for its suspension must indicate by which court the appellant wants the application determined."

CPR 63.4 (d) then provides:

"(d) The magistrates' court officer must - arrange for the magistrates' court to hear as soon as practicable any application to that court under rule 63.2 (3) (suspension of disqualification pending appeal)."

9. Mr Heptonstall's point is that whereas CPR 63.4 relates to any application to that court under Rule 63.2 (3), which would include a bail application, the words in parenthesis which follow make it clear that it is limited to applications for disqualification. As a result, he submits, it does not impose a duty on the Magistrates' Court officer to arrange for the Magistrates' Court to hear as soon as practicable a bail application under Rule 63.2 (2).
10. A similar point can be made on the corresponding provisions in the 2015 Edition of the Criminal Procedure Rules: CPR 34.2 and CPR 34.4. However in this instance Rule 34.4 (d) is clearer in that it refers only to an application to the court under Rule 34.2 (3) (c). Whereas the provisions in the 2014 Edition may be regarded as a slip in drafting, the 2015 provisions are much clearer. Moreover it is odd, in my view, that neither provision appears to enclose a duty on the Magistrates' Court officer in this regard. Nevertheless, I consider that Mr Heptonstall seeks to read too much into these provisions. To my mind they do not support his submission that there is no duty on a magistrates' court to consider a bail application properly before it. Any other conclusion would be inconsistent with the grant of this jurisdiction to the Magistrates' Court by Section 113.
11. Furthermore, I note in this regard - and Mr Heptonstall has very properly drawn this to our attention - that Rule 63.4 (a) (iii) in the 2014 Edition and Rule 34.4 (a) (iii) in the 2015 Edition require the Magistrates' Court officer to serve on the Crown Court officer as soon as practicable a copy of the Register entry relating to the decision under appeal and to any application for bail pending appeal. This clearly contemplates a bail application made in the Magistrates' Court.
12. Accordingly, I do not accept the submission for the Crown that the absence of any reference to a bail application in either of these provisions in the Criminal Procedure Rules indicates the intention of the Rules Committee that applications for bail should be made to the appellate court. That would in my view be inconsistent with Section 113.
13. Mr Heptonstall draws attention to Rule 63.9 of the 2014 Criminal Procedure Rules which provides:

"63.9 On the hearing of an appeal —

Court's power to vary requirements under this Part

63.9. The Crown Court may –

(a) shorten or extend (even after it has expired) a time

limit under this part:

(b) allow an appellant to vary an appeal notice that that appellant has served:

(c) direct that an appeal notice be served on any person:

(d) allow an appeal notice or a notice of abandonment to be in a different form to one set out in the Practice Direction, or to be presented orally."

14. The fact that Rule 63.10 limits the power to vary any requirements under Part 63 to the Crown Court may, as Mr Heptonstall submits, be an indication that the Crown Court is intended to manage the proceedings. But it does nothing to support the contention that the Magistrates' Court is entitled to decline to consider a properly constituted bail application.
15. Mr Heptonstall then submits that the judge was entitled to take the course she did as a matter of case management. Here, he refers to a number of case management powers, including those set out in Rule 1.1 (2) (e), Rule 1.3 (a), Rule 3.2 (2) (f) and Rule 3.11 (d) (ii) of the Criminal Procedure Rules. The case management powers referred to by Mr Heptonstall are, in my view, not sufficient to entitle the Magistrates' Court to decline to hear a properly constituted application. Effect has to be given to Section 113 which confers the jurisdiction on the Magistrates' Court and which is a provision contained in primary legislation. There is in my view a duty on the Magistrates' Court to hear a properly constituted application for bail under Section 113. Given that the liberty of the subject is in issue, I consider that any such application should be considered by the Magistrates' Court promptly.
16. However I should make clear that this does not mean that an applicant can insist on the application being heard by a particular judge or Bench or at any particular time. As a matter of practicality, I would expect that if the application is not made on the same day as the sentencing decision then it may be more appropriate for the application to be made to the Crown Court. By contrast, if the application is made on the day of sentence then there may be compelling reasons why the matter should be heard by the Magistrates' Court and, indeed, compelling reasons why bail should be granted in order to avoid the situation in which a person goes into custody and then is released following application to the Crown Court. It would depend on the circumstances of each particular case.
17. The issue raised by this appeal is to my mind quite distinct from any question of the merits of a bail application. It is understandable that a magistrates' court will often be reluctant to grant bail where a custodial sentence has been imposed following conviction. The position might be different if there were a strong prospect of an appeal succeeding or a sentence would have been served by the time in which an appeal could have been heard.
18. .It has been submitted that a passage which appears in Blackstone's Criminal Practice (2016) (at D29.16) might be read as suggesting that only an applicant refused bail by the Magistrates' Court can apply to the Crown Court for bail. I doubt that that was the intention of the editors of Blackstone. If it was, it is not correct (see Section 81 (1) (f) of the Senior Courts Act 1981). However the fact that there is jurisdiction in the Crown Court to consider a bail application, even if there has been no application to the Magistrates' Court, is not a reason for the Magistrates' Court to decline to consider an application properly made to the Magistrates' Court.
19. Finally Mr Heptonstall has submitted that the application did not comply with Rule 63.2 (3) which requires an application for bail with reasons to be served with the appeal notice. We have been told by Mr Webber, and we accept, that in fact there was a written application for bail within the grounds and it is simply not referred to in the case stated. Accordingly, there is nothing in this point. In any event, I consider that the Magistrates' Court would be under a duty to consider an application for bail even if written grounds had not been lodged.
20. Accordingly, I would answer the questions posed in the case stated as follows:

(1) Section 113 of the Magistrates' Courts Act 1980 creates an entitlement to apply for bail pending appeal in every case in which such a properly constituted application is made.

(2), Section 113 of the Magistrates' Courts Act 1980 places an obligation on the Magistrates' Court, whether by the sentencing tribunal or otherwise, to consider an application for bail pending appeal in every case where a properly constituted application for bail is made at the Magistrates' Court. In answering that second question, I should make clear that it does not follow that in every case it would be necessary to hold an oral hearing on the application.

21. MR JUSTICE COLLINS: I agree.
22. MR WEBBER: Mr Thomas has been legally aided. I would ask for an order for detailed assessment.
23. LORD JUSTICE LLOYD JONES: An order for detailed assessment.
24. MR WEBBER: Yes.
25. LORD JUSTICE LLOYD JONES: Thank you.