R v Central Criminal Court, Ex p Guney (Ex p Guney)

A defendant on bail who is required to surrender to the court, but has not already done so, surrenders by operation of law upon valid arraignment. Arraignment is the objectively ascertainable act at which bail lapses. The defendant’s subsequent detention or release on fresh bail lies within the judge’s powers.

This rule applies equally where arraignment occurs at the beginning of a preparatory hearing under the Criminal Justice Act 1987. It does not depend on the presence of a dock, cells or a designated custody officer. Neither the judge nor the parties may deprive arraignment of its legal effect. A surety whose recognisance ends upon the defendant’s surrender is discharged at that moment.

A defendant charged with theft and false accounting was released on bail. The respondent entered into a £1 million recognisance as his surety. The proceedings were transferred to the Central Criminal Court under the Criminal Justice Act 1987. At the first preparatory hearing, the defendant attended and pleaded not guilty upon arraignment. Counsel had agreed that he need not surrender on that occasion, but the judge was not told of their agreement.

After the defendant later absconded, Tucker J ordered the respondent to forfeit £650,000. The Divisional Court dismissed his application for judicial review: [1994] 1 WLR 438. By a majority, the Court of Appeal held that the defendant had surrendered upon arraignment: [1995] 1 WLR 576.

The Serious Fraud Office appealed. The central question was whether a defendant on bail who has not otherwise surrendered does so by operation of law upon formal arraignment.

1. Appeal dismissed unanimously. Lord Steyn delivered the leading speech. Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Slynn of Hadley and Lord Hoffmann agreed with his reasons. The order of the Court of Appeal was affirmed.

2. Per Lord Steyn, the administration of bail requires a clear and objectively ascertainable act at which bail lapses at the beginning of a trial. That act is arraignment. Where a defendant under a duty to surrender has not previously surrendered, calling the defendant to the bar, putting the indictment and requiring a plea amount by operation of law to surrender to the custody of the court.

   From that moment, the defendant’s continued detention lies within the judge’s discretion and powers. Unless the judge grants bail, the defendant remains in custody pending and during trial. The rule does not depend on whether the courtroom has cells, a dock, a custody area or a designated official to receive the surrender.

3. Per Lord Steyn, no different rule applies to proceedings under the Criminal Justice Act 1987. Sections 8(1) and 8(2) provide respectively that trial begins with the preparatory hearing and that arraignment takes place at its start. Neither the provisions nor the purposes of the Act alter arraignment’s effect upon bail.

4. Per Lord Steyn, neither a judicial ruling nor an agreement between the parties can deprive arraignment of its legal effect. Once arraignment has effected surrender, the judge cannot abdicate responsibility for the defendant’s custody. A fortiori, counsel cannot preserve an existing bail or recognisance by agreeing that the defendant should be treated as not having surrendered.

5. The defendant was validly arraigned and therefore surrendered to the court, notwithstanding the absence of a dock and the mistaken beliefs of the judge and counsel. The respondent’s obligation as surety ended simultaneously. The Serious Fraud Office’s appeal was dismissed with costs.

1. House of Lords: The Serious Fraud Office’s appeal was dismissed unanimously. The order of the Court of Appeal was affirmed: [1996] AC 616.

2. Court of Appeal: By a majority, Peter Gibson LJ and Sir Michael Mann held that the defendant surrendered to the court upon arraignment. Sir Thomas Bingham MR dissented on the central question: [1995] 1 WLR 576.

3. Divisional Court: The respondent’s application for judicial review was dismissed. The court held that arraignment could take place without surrender to custody and that no surrender had occurred: [1994] 1 WLR 438.

4. Central Criminal Court: Tucker J held that the defendant had not surrendered and ordered the respondent to forfeit £650,000 under his recognisance.