Regina v Central Criminal Court, ex parte Guney

The House of Lords held that formal arraignment operates in law as a surrender by a defendant who is on bail and has not otherwise surrendered to the custody of the court. The court treated arraignment as the objectively ascertainable formal act which causes bail to lapse at the beginning of a trial. The decision applied equally to cases conducted under the Criminal Justice Act 1987 (in particular the preparatory hearing and the provision that arraignment takes place at its start). The judge may not, and the parties cannot by agreement, deprive arraignment of that legal effect. Relevant statutory provisions considered included the provisions of the Bail Act (section 3 and related provisions), section 128 of the Magistrates' Courts Act 1980 and sections 7 and 8 of the Criminal Justice Act 1987.

This was an appeal by the Serious Fraud Office against an order of the Court of Appeal which had held that the recognisance given by a surety (Mr Guney) ceased to be binding because the accused (Mr Asil Nadir) had been arraigned and thereby, in law, had surrendered to custody. The factual background was that Mr Nadir had been admitted to bail with conditions; Mr Guney signed a recognisance as surety. Proceedings were transferred to the Central Criminal Court under the Criminal Justice Act 1987 and a preparatory hearing, at which arraignment occurred, was fixed for 22 June 1992. The preparatory hearing took place at premises without cells or a dock. Nadir attended, was arraigned, pleaded not guilty and was not required at that hearing to report to any custody official; counsel for both sides agreed, without informing the judge, that Nadir need not surrender physically on that occasion.

The procedural posture was that Tucker J ordered the surety to forfeit part of the recognisance; a judicial review in the Divisional Court dismissed the application; the Court of Appeal was divided but in substance held that arraignment can amount in law to surrender and that where it does so the surety is released; the Serious Fraud Office appealed to the House of Lords.

The issues for decision were (i) whether arraignment operates in law as surrender to custody for a defendant who was on bail and had not otherwise surrendered, (ii) whether a different rule applies in cases governed by the Criminal Justice Act 1987, and (iii) whether the judge or the parties can vary or displace any such rule by order or agreement.

The House of Lords (Lord Steyn giving the principal speech) reasoned that certainty and practical administration of criminal trials required an objectively ascertainable moment at which bail lapses; arraignment, being a formal act involving calling the defendant, reading the indictment and asking for plea, provides that moment. The same rule applies under the Criminal Justice Act 1987 where the preparatory hearing and the arraignment at its start are provided for. A judge cannot abdicate responsibility for custody and cannot deprive an arraignment of its legal effect; nor can counsel or the parties by agreement alter that effect. The appeal was dismissed and the Court of Appeal order affirmed.

Appeal dismissed. The House of Lords held that where a defendant on bail who has not previously surrendered is formally arraigned that arraignment operates in law as a surrender to the custody of the court; the rule applies equally under the Criminal Justice Act 1987; a judge cannot deprive arraignment of that effect nor can the parties by agreement do so. Accordingly the Court of Appeal's order was affirmed.

Proceedings began in Bow Street Magistrates' Court where bail and recognisance were granted. Charges were transferred to the Central Criminal Court under the Criminal Justice Act 1987. Tucker J ordered forfeiture against the surety. The Divisional Court refused judicial review: Regina v Central Criminal Court, Ex parte Guney [1994] 1 W.L.R. 438. The Court of Appeal heard the appeal and delivered judgment: Regina v Central Criminal Court, Ex parte Guney [1995] 1 W.L.R. 576 (division of opinion on central issue). The appeal to the House of Lords was heard and the House of Lords affirmed the Court of Appeal order: [1996] UKHL 11.