Hasani, R (on the application of) v Blackfriars Crown Court

Permission to apply for judicial review should be granted where there is an important and arguable question whether a Crown Court had power to order a trial after a defendant previously found unfit to plead was later found fit. The court may retain an inherent power to grant bail ancillary to judicial review proceedings, notwithstanding statutory restrictions on the High Court’s bail jurisdiction. Bail may be refused where the evidence establishes a real and serious risk of further offences. The court should also consider the significance of delay, particularly where the claimant is young, although delay does not necessarily require release.

The claimant faced proceedings arising from two violent incidents. He was found unfit to plead, and a jury subsequently found that he had done the acts alleged. After receiving further medical evidence indicating that he was fit to plead, the Crown Court ordered a trial on indictment.

The claimant challenged the Crown Court’s power to make that order under sections 5 and 5(a) of the Criminal Procedure (Insanity) Act 1964. He also sought a stay of the Crown Court proceedings and bail. The central issue was whether the Crown Court had power to order a trial in those circumstances.

1. Permission. Permission to apply for judicial review was granted. Sections 5 and 5(a), together with section 4, of the Criminal Procedure (Insanity) Act 1964 gave the Secretary of State powers in specified circumstances, but the Act contained no specific power corresponding to the Crown Court judge’s order. O'Mara [2004] EWCA Crim 431 recognised a lacuna, and the issue required authoritative determination.

2. Stay. No stay was required because the Crown Court judge would not proceed with the case knowing that permission for judicial review had been granted.

3. Bail jurisdiction. Section 17 of the Criminal Justice Act 2003 abolished the High Court’s jurisdiction in certain circumstances where it depended on inherent power. It did not remove the inherent power to grant bail ancillary to judicial review proceedings. That power remained available on principles other than Wednesbury principles.

4. Application of the bail jurisdiction. Bail was refused because there was a real danger of further offences. The Crown Court judge had dealt with the matter in detail and his assessment deserved respect. The alleged acts were unprovoked and potentially dangerous, and the jury had found that the claimant had carried them out. Although the claimant was young, had previously been of good character and was not currently mentally ill, the medical history created continuing concern about his future condition.

5. The court noted the anxiety caused by delay and indicated that bail could be reconsidered if the matter were not brought before the court promptly.

The judgment records that the application for permission had previously come before Sullivan J, who directed that the matter be listed initially for consideration of a stay of the Crown Court proceedings and bail. The present court granted permission, found no stay necessary and refused bail.