1. This is an application by Jamil Hussain for judicial review of three
decisions taken at the Derby Magistrates' Court on 10th October 2000. The
applicant had been arrested the previous evening for breaching a condition of
police bail, and was brought before two lay justices sitting at that court the
following morning. The first impugned decision was the decision on their part
to stand the defendant down so that he re-appeared before a district judge in
the same court on the same afternoon. The second was the decision of District
Judge Alderson that Mr Hussain had breached his bail conditions. The third was
her decision to refuse his application for bail and to remand him in custody
until 17th October.
2. Mr Hussain had been charged on 1st October 2000 with making threats to kill,
contrary to section 16 of the Offences Against the Person Act 1861. He was
released on conditional police bail, and one of the bail conditions was that he
was not to contact Julie Ann Evans directly or indirectly. He was bailed to
appear at Swadlincote Magistrates' Court on 12th October.
3. On 9th October he was arrested by the police. It appeared that Julie Evans
had complained that he had been telephoning her and trying to get her to change
her evidence. He was interviewed by the police and detained in custody
overnight for production before the magistrates the following day.
4. The position was governed by section 7 of the Bail Act 1976 which reads, so
far as is material:
(3) A person who has been released on bail in criminal proceedings and is under
a duty to surrender into the custody of a court may be arrested without warrant
by a constable ...
(b) if the constable ... has reasonable grounds for suspecting that that person
has broken any of [the conditions of his bail] ...
(4) A person arrested in pursuance of subsection (3) above -
(a) shall ... be brought as soon as practicable and in any event within 24
hours after his arrest before a justice of the peace for the petty sessions
area in which he was arrested ...
(5) A justice of the peace before whom a person is brought under subsection (4)
above may ... if of the opinion that that person ...
(b) has broken ... any conditions of his bail.
remand him in custody ... or alternatively, grant him bail subject to the same
or different conditions, but if not of that opinion shall grant him bail
subject to the same conditions (if any) as were originally imposed.
5. When Mr Hussain appeared before the Derby justices on 10th October, the
Human Rights Act 1998 had just come into force. During the lead-up period
before the Act came into effect, varying opinions had been expressed about the
quality of the evidence justices should receive at a hearing held pursuant to
section 7(4) of the Act. The justices are not represented before us, but three
helpful affidavits have been lodged with this court which explain the sequence
of events at court that day.
6. Mr Wormington was sitting as chairman of the bench, with two other justices,
in the main remand court. Mrs Connolly was acting as legal adviser to that
court. She tells us that what was alleged against Mr Hussain was that he had
breached his bail conditions by telephoning Julie Evans on four different days
between 2nd and 9th October. When Mrs Connolly put this breach allegation to
Mr Hussain he denied it.
7. The prosecutor then told the court he proposed to proceed by way of making
representations to the court and reading witness statements. At this point Mrs
Connolly intervened and suggested that the procedure might engage both Articles
5 and 6 of the European Convention on Human Rights ("ECHR"). In particular, Mr
Hussain might not be afforded a fair trial by not being given the right to
challenge witnesses against him.
8. Not surprisingly, the advocates for the parties expressed different views on
this point. The defence solicitor echoed Mrs Connolly's concerns and agreed
with her that there was a potential incompatibility with the Convention. The
prosecutor, on the other hand, argued that breach proceedings under section 7
of the Bail Act constituted a pre-trial issue, so that Article 6 did not apply.
He should therefore be permitted to follow the course he proposed, and not have
to call oral evidence.
9. Mrs Connolly then suggested that the justices should retire for a few
moments while she consulted Mr Hallam, who is the clerk to the Derby justices,
because she knew that this issue had recently been discussed at a Legal
Advisers' meeting.
10. When the justices returned to court, Mr Hallam was in court, and Mrs
Connolly advised them in his presence that there was a potential
incompatibility between our national law and ECHR law in these circumstances,
but that each case should be determined and assessed on its own particular
facts. The defence solicitor then submitted that it would be impossible for
the court to decide whether there had been a breach of bail conditions without
hearing evidence and allowing for cross-examination. This was particularly
important in a case which involved one person's word against the other, with no
corroborative evidence. He argued that it would be essential for the court to
assess the credibility of such evidence, and this could only be achieved if the
justices heard oral evidence.
11. The justices accepted these submissions. Mr Wormington said that in the
interests of justice they would put the case back in the list to allow the
prosecution to call the relevant witnesses. This was necessary to afford the
defendant a fair hearing. He said that the justices had come to this
conclusion having regard to the particular nature and circumstances of the
case. It involved weighing the word of one person against the word of the
other, and they felt that it would be impossible to determine this issue
without hearing from the parties in person. It would be necessary to assess
the credibility of the evidence given by each party, and they had been told
that there was no corroborative evidence to be presented.
12. Mr Wormington said that for these reasons the case would be put back in the
list, perhaps to the afternoon. The defendant was asked to return to the cells
with the security officers. Neither Mr Wormington nor Mrs Connolly recalls Mr
Wormington saying that the case was adjourned or that the defendant was
remanded in custody.
13. It is apparently the usual listing practice at Derby that different
justices sit in the main remand court in the morning and in the afternoon.
That court has a separate morning and afternoon list. Any matters listed in
the morning and not reached, or put back for any reason, are normally put over
to the afternoon list. District Judge Alderson took the afternoon list that
day.
14. When Mr Hussain was brought back to court in the afternoon, the prosecutor
told the district judge he could not proceed with the matter because he had
been unable, in the time available, to produce the Crown's witnesses that
afternoon. The district judge said that she did not require witnesses to be
present. She would deal with the matter by way of representations from both
sides in accordance with established practice.
15. The defence solicitor then told her she should not deal with the matter in
this way because it would breach his client's human rights. He referred to
ECHR Article 6, but said that having successfully argued the point before the
lay justices in the morning, he was not prepared to argue it again. He said
she had no jurisdiction to entertain the breach proceedings, because the
justices that morning had no power to adjourn or to remand the defendant in
custody pending their decision in section 7(4) proceedings.
16. The district judge said she took the view that that bench had put the
matter back in the same list in the same court on the same day and within the
24 hours allowed by law for breach proceedings to be dealt with. She was
therefore satisfied that she did have jurisdiction to hear the proceedings and
that there would be no breach of ECHR Article 6 if she proceeded in the way she
had proposed.
17. She then found the breach proved. In view of the nature and seriousness of
the offences, and the fact that the defendant had breached his bail conditions
by contacting the injured party, she was satisfied that if she granted him bail
again, whether subject to conditions or not, there were substantial grounds for
believing that he would commit further offences and interfere with witnesses.
She therefore remanded him in custody.
18. The claimant maintains that on the proper construction of section 7(4) and
(5) of the Bail Act, the justices before whom he first appeared ought to have
completed the hearing that day after embarking on it. They had no power to
adjourn it, and still less did the district judge have any power to start the
hearing again in the afternoon and make the orders she did.
19. There are two decision of this court which cast some light on the issues in
this case. In R v Liverpool City Justices ex p DPP [1993] QB 233 it was
held that a justice had no power to remand a defendant in custody and to
adjourn the determination of the section 7(5) hearing until another day. The
court also held that Parliament had intended by section 7(4) to create a simple
and expeditious procedure whereby a justice was required, before forming an
opinion under section 7(5), to conduct no more than an informal inquiry,
hearing the arresting officer's grounds for belief that the person had broken
or might break his bail conditions and allowing that person to respond, but
without the giving of evidence on oath or cross-examination. The proceedings
did not constitute a summary trial on an information nor the hearing of a
complaint. The provisions of that Act which related to the adjournment of
proceedings before magistrates' courts therefore did not apply.
20. In R (on the application of the DPP) v Havering Magistrates' Court
[2001] 1 WLR 805 this court held that ECHR Article 6 had no application to
proceedings under section 7(6) of the Bail Act, and that ECHR Article 5 did not
require the underlying facts relevant to determination under section 7 to be
proved to the criminal standard of proof. Nor did it require that only
evidence which would be admissible at trial could be relied on. In other words
the court approved the approach adopted by the district judge at the afternoon
hearing in the present case. For this reason Elias J as the single judge did
not give the claimant permission to argue this point, but there still remained
another important issue open for our decision. That question is whether on the
proper construction of section 7(4) and (5) a justice or justices have power to
stand an application out of their list after being seized of it and making a
preliminary ruling, with the effect that a different justice or justices embark
on the hearing afresh and determine it on the same day.
21. Mr Knowles's argument ran along the following lines. He said that section
7(4) envisaged a defendant being brought before a justice of the peace within
the 24-hour period, and section 7(5) envisaged the same justice making the
decision whether to remand him in custody or grant him bail. He said that
there was simply no room for one justice starting to hear the matter and then,
if for some reason that hearing had to be suspended, another justice hearing
the matter afresh. He said that the justice became seized of the matter as
soon as the allegation as to the breach of bail had been put to the defendant,
and he or she then had to hear the matter out, with or without any necessary
breaks, the same day. He accepted that more than one justice could hear the
matter, and said that in those circumstances section 121(6) of the Magistrates'
Courts Act 1980 allowed the number of justices to be reduced to one if for any
reason the other justice(s) could not stay to see the hearing concluded.
22. Mr Knowles relied on the decision of this court in Barnsley v Marsh
[1947] KB 672 as authority for the proposition that no particular formula is
required in order to signify that a matter has been adjourned. He also relied
strongly on section 121(6) of the Magistrates' Courts Act 1980 which
provides:
"(6) Subject to the provisions of subsection (7) below, the
justices composing the court before which any proceedings take place shall be
present during the whole of the proceedings; but, if during the course of the
proceedings any justice absents himself, he shall cease to act further therein
and, if the remaining justices are enough to satisfy the requirements of the
preceding provisions of the section, the proceedings may continue before a
court composed of those justices."
He said that this provision referred to "any proceedings", as opposed to the
specific types of proceedings mentioned in section 121(1) and (2), and that it
meant that at least one of the justices composing the morning court should have
heard the proceedings through to the end.
23. Mr Perry appeared for the Lord Chancellor's Department to respond to the
claim for damages pursuant to section 7(1) of the Human Rights Act 1998 (see
also section 9(3) and (4) in relation to a claim for damages in respect of a
judicial act done in good faith). He submitted that District Judge Alderson
had jurisdiction to hear the matter in the afternoon in the way she did, so
that no question of an entitlement to damages could arise.
24. He asked us to consider the context of our decision. The driving force
behind section 7 of the Bail Act was ECHR Article 5(3), with its requirement
that persons who were arrested or detained in accordance with Article 5(1)(c)
must be brought promptly before a judge or other officer authorised by law to
exercise judicial power. The requirement for promptness is echoed in our
national law by the requirement in section 7(4)(a) of the Bail Act that the
person arrested shall be brought before a justice of the peace "as soon as
practicable and in any event within 24 hours after his arrest". In other words
the judicial power of the state must be seized of the matter within this
timescale, and the defendant's liberty cannot be taken away for any longer
period merely on the authority of the police. This important principle
underlay the decision of this court in R v Governor of Glen Parva Young
Offender Institution ex p G [1998] QB 877 per Simon Brown LJ at p 882: the
requirements of the section were not satisfied simply by bringing the defendant
within the precincts of a magistrates' court within that period.
25. Mr Perry said that it was open to us to accept his submissions on both a
literal and a purposive interpretation of the Bail Act. Literally, because Mr
Hussain was brought before the district judge within the requisite 24 hour
period and she made her decision under section 7(5) the same day. Purposively,
because Parliament's purpose was to ensure that the question of the defendant's
continuing detention was placed before a justice or justices within the 24
hours period. This called for speedy, informal justice, and the procedure was
rightly described as "sui generis" by Roch J in the Liverpool
justices case at p 240C.
26. Mr Perry said that because Parliament required the matter to be determined
so quickly, there might be all sorts of reasons why the matter might be brought
before one court and then transferred to another. In the Liverpool
justices case the defendant had appeared unrepresented in the morning. His
case was put back to enable a solicitor to represent him and was eventually
started at 4.20pm (see p 237A-B): the judgment does not record whether a
different bench was sitting in the morning. In R (McKeown) v Wirral Borough
Magistrates' Court, heard at the same time as the Havering case (see
[2001] 1 WLR 805) two justices failed to agree in the morning, and the matter
was then adjourned to be heard by a bench of three justices in the afternoon
(see Latham LJ at para 7, pp 808-9).
27. Mr Perry suggested that circumstances might arise in which the original
bench might start to hear a matter, but might then decide to give a defendant
the opportunity to bring a witness to court to support his case on a disputed
matter. The witness might arrive quite quickly, but he said that it was the
logic of Mr Knowles's argument (which Mr Knowles did not dispute) that if the
original bench was then heavily engaged with other cases, this simple breach of
bail matter could not be transferred to another court which happened to be free
at the time. Because jurisdiction cannot be conferred by consent, both
advocates and the witnesses and the defendant (in custody) would be compelled
to wait, perhaps a very long time, until the original bench became available
again.
28. Mr Perry submitted that because this procedure is intended to be swift and
informal, we should do our best to avoid putting justices in an unnecessary and
inconvenient straitjacket unless the language used by Parliament absolutely
required it. Because the procedure was sui generis - the one essential
matter being that the effective hearing must start as soon as practicable and
in any event within 24 hours after the arrest --it would be wrong to transport
to it the procedural rigidity required on a summary trial or on the hearing of
a complaint or in committal proceedings. On the facts of the present case, the
reason why Mr Hussain did not appear before the district judge any earlier was
because of the delay initiated by the concerns of the justices' legal adviser
in the morning court, and the 24-hour condition was in any event satisfied.
There was no breach of section 121(6) because the morning court was clearly
content that its role in the matter should be at end if, as seemed likely, the
matter could not be restored before the mid-day adjournment.
29. Mr Knowles, for his part, distinguished the Wirral case on the basis
that the first hearing was in effect a nullity once that bench had failed to
agree. He was unable to provide any satisfactory solution to the dilemma that
would be caused when the original court is fully occupied and everyone has to
hang about all day even though another justice in another court might be free
to deal with the matter. He drew our attention to the passage in the judgment
of Latham LJ in the Havering case at paras 43-44 in which there is a
short but inconclusive discussion of adjournments. This passage ended with the
following sentence which was said by Mr Knowles to support his case:
"A solution is likely to be that, Parliament having determined that
there should be a swift and relatively informal resolution of the issues
raised, the justice must do his best to come to a fair conclusion on the
relevant day; if he cannot do so, he will not be of the opinion that the
relevant matters have been made out which could justify detention."
30. In my judgment the arguments of Mr Perry are to be preferred. I remind
myself that this case, although touching on the liberty of the subject, is not
concerned with the trial of a criminal charge or a hearing at which a person's
civil rights are to be determined. Speed of determination is of the essence,
and the defendant ought not to be kept waiting for a court to determine the
matter any longer than is strictly necessary. In those circumstances, if
procedural rigidities appropriate for a more formal hearing are conducive to
delay (and it must be remembered that the determination must be made that day),
then we should not interpret section 7(5) as requiring such rigidity unless we
are compelled to do so. If Parliament had used more compelling language in
section 7(5) so as to make it clear that, for whatever reason, it was not
willing to contemplate permitting what happened in the present case, then in a
case where a witness had to be sent for everyone would have to wait around
until the original court became free again, and one of the justices on a
morning's list might have to come back to resume the matter in the afternoon.
In my judgment we are not driven to that conclusion.
31. In those circumstances I am satisfied that the district judge did have
jurisdiction to start the matter afresh in the afternoon, and no question of a
claim for compensation under sections 7-9 of the Human Rights Act can arise.
Mr Perry told us, correctly, that if his submissions had failed, he would have
had no answer to the claim for compensation, because ECHR Article 5(5) requires
this result when a court deprives someone of his liberty without jurisdiction.
Sea Benham v United Kingdom 22 EHRR 293 para 43; Santa Cruz Ruiz v
United Kingdom Appln No 26109/95, at paras 30 and 50-52.
32. It is not therefore necessary for us to express any view on the amount of
compensation we would have awarded in the event that we had found that there
had been a violation of the Convention.
33. During the course of the hearing a question arose whether the complaint
about the breach of bail had been put formally to Mr Hussain at the start of
the afternoon hearing. Because this was not one of the matters complained of,
the district judge did not address it specifically in her affidavit. In those
circumstances it is unnecessary to say anything more about the matter except to
state that this formality is required if the hearing is to start again before a
different court.
34. I would therefore dismiss this application.
MR JUSTICE HARRISON:
35. I agree.
*****************
LORD JUSTICE BROOKE: For the reasons set out in the judgment of the
court, copies of which were made available to the parties about 10 minutes ago,
this application is dismissed.
Are there any typos that anybody has picked up in the time available?
MR KNOWLES: My Lord, no.
MR PERRY: Not in the time available.
LORD JUSTICE BROOKE: Very well, then the text of this judgment will be
available from my clerk, insofar as it is not already available in half an
hour's time. Is that about it?
MR KNOWLES: My Lord, so far as certification of questions is concerned,
I would like a little time, if I may, to digest my Lords' judgment.
LORD JUSTICE BROOKE: Yes, certainly. You are content that we deal with
the matter in----
MR KNOWLES: On paper, my Lord.
LORD JUSTICE BROOKE: On paper.
MR KNOWLES: My Lord, if it appears to me that a question does arise,
perhaps I could formulate it and circulate to it my learned friend.
LORD JUSTICE BROOKE: Yes, it would be convenient if what reached us had
both your input in it, if that is convenient. Well, I think we look forward to
seeing you both again tomorrow.
MR PERRY: My Lord, may I mention just two matters.
LORD JUSTICE BROOKE: Yes.
MR PERRY: The first is, for your Lordships' information, section 53 of
the Administration of Justice Act 1985 provides that if a party to civil
proceedings incurs additional expense through the incapacity or death of the
judge, then that party may recover their expenses from the Lord Chancellor's
department, and I am informed by Mr Solly that is why the Lord Chancellor only
appoints such fit and healthy people to the Bench. My Lord, that is just for
the court's information.
LORD JUSTICE BROOKE: Flattery will get you nowhere, Mr Perry.
MR PERRY: And my Lord we provided copies - although it is rather late
now, if your Lordships would find the table of just satisfaction of assistance?
LORD JUSTICE BROOKE: That will be very handy.
MR PERRY: We have provided copies.
LORD JUSTICE BROOKE: If Mr Emmerson is not hanging on to his copyright.
MR PERRY: My Lord, we have not checked that. Thank you very much indeed.
MR KNOWLES: My Lord, could I apply for just satisfaction in the form of
a Legal Services Commission Taxation.
LORD JUSTICE BROOKE: What?
MR KNOWLES: A Legal Services Commission taxation.
LORD JUSTICE BROOKE: Legal aid, is it?
MR KNOWLES: Whatever it is called now. Legal aid taxation.
LORD JUSTICE BROOKE: You may have whatever it is called, and the
Associate will know all about it.
MR KNOWLES: Just satisfaction.
LORD JUSTICE BROOKE: That is wonderful. Thank you very much indeed.
Yes, I raised the question, Mr Perry, because we are still in the process of
being about to hand down judgment in a case with which your clients are also
concerned. We are getting on with it.
MR PERRY: Thank you very much.
LORD JUSTICE BROOKE: Not at all.
© 2001 Crown Copyright
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