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Prosecution bail appeals – what could possibly go wrong?

13/05/2024

Grace Khaile considers two recent High Court judgments on the procedure of prosecution appeals against bail.

Introduction

The cases of R (on the application of Darykie Ramos Molina) v Crown Court at Snaresbrook & another [2024] EWHC 816 (Admin) and Hammond v Governor of Winchester Prison [2024] EWHC 91 (Admin) confirmed the proper procedure to be followed when the prosecution is appealing the decision to grant a defendant bail.

Background facts

Hammond v Governor of HMP Winchester

The Claimant applied for a writ of habeas corpus for his release from remand pending the prosecution’s appeal against a decision in favour of bail. The Claimant had been granted bail by a magistrates’ court on 23 December 2023. The prosecution gave oral notice of appeal against the grant of bail to the court on the day. The hearing of the appeal ought to have commenced within 48 hours (excluding weekends and any public holidays) in line with the legislation. The 48-hour period expired on 28 December 2023 but due to delays and listing difficulties the appeal was not listed until 2 January 2024. The issue was whether the Claimant’s continued detention was lawful where the hearing of the appeal against bail had not been commenced within 48 hours pursuant to s.1(8) The Bail (Amendment) Act 1993.

R (on the application of Darykie Ramos Molina) v Crown Court at Snaresbrook & another

The Claimant was arrested on 10 November 2022 and charged with four offences against his former partner. He was refused bail by the police. At a hearing later that day the Claimant appeared at Barkingside Magistrates Court. He was a person of no previous convictions and indicated not guilty pleas to all charges. The justices accepted jurisdiction and he exercised his right to elect trial in the Crown Court. The case was sent to the Snaresbrook Crown Court pursuant to section 51 of the Crime and Disorder Act 1998 for a plea and trial preparation hearing on 7 December 2022. The Claimant’s representative made a bail application which was opposed by the CPS. After considering the matter, the justices granted the Claimant conditional bail. The prosecution, immediately following the hearing, gave oral notice of their intention to appeal against the grant of bail as the Claimant was being removed from the dock by the SERCO staff, or shortly thereafter. The chair of the lay bench confirmed that the prosecution was appealing the grant of bail and the legal advisor announced that the prosecution had two hours from the giving of oral notice to serve written notice on the Claimant and the court. The court adjourned to 2pm on the same day but the Claimant did not return as he had been released from the cells. There was a dispute as to whether or not the Claimant was sufficiently informed of the appeal and his requirement not to leave the court building. The prosecution tasked the police with serving the written notice, which was never done. There was then an attempt to argue that notice had been served on the Claimant’s representative. However, no application was made under the Criminal Procedure Rules (CrPR 4.10) for notice to be served on the legal representative.

The Justices determined that that the prosecution failure to serve written notice of appeal on the Claimant resulted in a disposal of the appeal pursuant to section 1(7) of the 1993 Act.

On 14th November 2022 the prosecution informed the Claimant’s representative that the Claimant’s case was to be listed the following morning at the Crown Court for the determination of the prosecution’s bail appeal. At the hearing prosecution counsel contended that the legal advisor and the justices acknowledged that the CPS had sought to appeal against bail, but they did not remand the Claimant in custody as they were required to do following oral notice to appeal, pursuant to section 1(6) of the 1993 Act. Prosecution counsel submitted that the justices’ decision was incorrect, and the Judge agreed stating that it was not in accordance with the authority of R (Cardin) v Birmingham Crown Court and Birmingham Magistrates’ Court [2017] EWHC 2101. Defence counsel stated that the Claimant had not been aware that oral notice had been given of the intention to appeal and neither the Claimant nor the cells staff were aware of the prosecution application. The defence submitted that if oral notice had been properly given there would have been a warrant for the further detention of the Claimant for a period of two hours until written notice was given but this was not done. The Judge determined that the bail appeal had been properly before the court and went on to refuse to grant bail on the grounds that if it were to be granted the Claimant would fail to surrender and would commit further offences. 

The Claimant applied for judicial review of the judge’s decision on three grounds:

i) The judge exceeded her jurisdiction in determining the prosecution’s purported appeal against the grant of bail. The magistrates’ court had adjudicated on, and disposed of, the issue of procedure. In the event that the prosecution considered that the magistrates’ decision on procedure was wrong in law, there were other, lawful courses of action by which to challenge that decision;

ii) The judge erred in law in deciding that the matter was properly before the Crown Court on the basis that oral notice had been given and written notice served. Even if the magistrates’ court had not disposed of the issue of procedure, the prosecution was at fault in failing to comply with the requisite procedure and in causing prejudice to the defendant;

iii) Finally, the Claimant argued that the judge erred in law in deciding that, in any event, the Crown Court was seized of the matter because the case had been listed before it. That decision, in effect, bypassed the requirements found in the 1993 Act.

Statutory Framework

The Bail (Amendment) Act 1993, section 1

 (1) Where a magistrates’ court grants bail to a person who is charged with, or convicted of, an offence punishable by imprisonment, the prosecution may appeal to a judge of the Crown Court against the granting of bail.

(2) Subsection[s] (1) […] above [applies] only where the prosecution is conducted (a) by or on behalf of the Director of Public Prosecutions; or (b) by a person who falls within such class or description of person as may be prescribed for the purposes of this section by order made by the Secretary of State.

(3) An appeal under subsection (1) […] may be made only if— (a) the prosecution made representations that bail should not be granted; and (b) the representations were made before it was granted. (

4) In the event of the prosecution wishing to exercise the right of appeal set out in subsection (1) […] above, oral notice of appeal shall be given to the court which has granted bail at the conclusion of the proceedings in which … bail has been granted and before the release from custody of the person concerned.

(5) Written notice of appeal shall thereafter be served on the court which has granted bail and the person concerned within two hours of the conclusion of such proceedings.

(6) Upon receipt from the prosecution of oral notice of appeal from its decision to grant bail the court which has granted bail shall remand in custody the person concerned, until the appeal is determined or otherwise disposed of.

(7) Where the prosecution fails, within the period of two hours mentioned in subsection (5) above, to serve one or both of the notices required by that subsection, the appeal shall be deemed to have been disposed of.

(8) The hearing of an appeal under subsection (1) […] above against a decision of the … court to grant bail shall be commenced within forty-eight hours, excluding weekends and any public holiday (that is to say, Christmas Day, Good Friday or a bank holiday), from the date on which oral notice of appeal is given.

(9) At the hearing of any appeal by the prosecution under this section, such appeal shall be by way of re-hearing, and the judge hearing any such appeal may remand the person concerned in custody or may grant bail subject to such conditions (if any) as he thinks fit.

CrPR 4.10 addresses the issue of service of the written notice of appeal upon a legal representative as follows:

“Documents that may not be served on a legal representative

4.10. Unless the court otherwise directs, service on a party’s legal representative of any of the following documents is not service of that document on that party— … (f) any notice or document served under Part 14 (Bail and custody time limits); …”.

Judgments

In the case of Hammond, the Claimant’s application was granted. The Court held that section 1(8) of the 1993 Act should be treated as mandatory. The mandatory construction ensured the fundamental protection afforded by the common law to a person’s liberty. The fact that no appeal was commenced within 48 hours of the oral notice as required by law and the failure on the prosecution’s part to provide any basis on which to apply flexibility to the requirement, meant that the appeal should have been deemed disposed of. The Court ordered the Claimant’s immediate release from custody subject to the bail conditions imposed by the Magistrates’ Court.

In the matter of Molina, the Court was unable to understand how or why the appeal process was initiated and taken forward given that there had been a formal disposal by the justices in the Magistrates’ Court. It held that an express ruling of disposal by the justices was ignored by one or more members of the courts and tribunals service who had wrongly purported to transfer the appeal to the Crown Court. If the prosecution sought to challenge the disposal by the justices, it should have done so by means of proceedings for judicial review. It concluded that the Crown Court judge had been aware that the justices had determined that, and as the requirement to serve written notice on the Claimant had not been complied with, the appeal was disposed of. The court had difficulty understanding the Judge’s reasoning in concluding that the Claimant was properly brought to the court in relation to the appeal, when she was aware that no written notice had been served upon the Claimant in line with section 1 of the 1993 Act and held that the matter should have been disposed of by the justices.

The Court also accepted the Claimant’s submission that to permit the Crown Court to deploy an early listing and bail review under its general powers when the prosecution had manifestly failed to meet the requirements of such an appeal, would be to deprive a defendant of the protections which Parliament set, in other words, to allow the Crown Court to ignore the requirements which directly impact upon the liberty of the citizen. The Court further concluded that the Judge had erred in law in deciding that the Crown Court was seized of the matter simply because the case had been listed before it.

The cases make it clear that the requirements of section 1 of the 1993 Act are fundamental and mandatory to protect a defendant’s liberty. The judgments also serve as a necessary reminder to the courts to avoid the temptation of excessively deploying their general powers in respect of such applications when the prosecution has manifestly failed to meet the requirements.

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