M v Isleworth Crown Court & Anor

Judicial review of a Crown Court bail decision is available despite the abolition of the former application to a High Court judge. The jurisdiction should, however, be exercised very sparingly. The proper test is robustly applied Wednesbury review, taking account of Parliament’s allocation of bail decisions to experienced Crown Court judges. The High Court may intervene where the decision rests on an unjudicial basis or is perverse, but it must not substitute its own view merely because it would have granted bail. Serious charges carrying a substantial sentence may justify finding an unacceptable absconding risk despite good character, stable circumstances and apparently weak accomplice evidence.

M was charged at Isleworth Crown Court with four conspiracies to import substantial quantities of cocaine. A circuit judge refused bail, having regard principally to the seriousness of the allegations, the alleged breach of trust and the risk of absconding despite M’s personal circumstances and the case’s dependence on accomplice evidence.

M sought judicial review. The application raised whether the statutory exclusion of review concerning matters relating to trial on indictment applied, and whether judicial review remained available after the abolition of applications to a High Court judge. The central issue was whether the refusal of bail was legally reviewable and, if so, perverse.

1. Jurisdiction. A decision on bail at an early stage of criminal proceedings does not concern a matter relating to trial on indictment for the purposes of section 29(3) of the Supreme Court Act 1981. The approach in R v Manchester Crown Court ex parte DPP [1994] 98 Cr.App.R 461 HL was applied.
2. Although section 17(3) of the Criminal Justice Act 2003 abolished the former route to a High Court judge, section 17(6)(b) preserved applications for prerogative remedies. Those remedies include the orders now described in section 29(1) of the Supreme Court Act 1981. Judicial review of a Crown Court bail decision was therefore available.
3. Intensity of review. The jurisdiction must be exercised very sparingly. The applicable test is Wednesbury review, robustly applied. The court must respect Parliament’s decision to entrust bail applications to Crown Court judges with everyday experience of the issue. Intervention may nevertheless be justified where bail is refused on an unjudicial basis, such as an inflexible policy that bail is always refused in a particular type of case.
4. The reasoning in R v Croydon Crown Court ex parte Cox [1997] 1 Cr.App.R 20, which treated the availability of an alternative High Court remedy as excluding review, no longer applied after that remedy was abolished. Any contrary implication in Serumaga [2005] EWCA Crim 370 was erroneous.
5. The refusal was not perverse. The charges involved serious class A drug importations, an alleged grave breach of trust and a possible sentence of ten years or more. The trial and related applications were relatively imminent. Those matters could rationally outweigh M’s age, good character, employment record, stable home and family circumstances. The High Court’s view that it would have granted conditional bail was irrelevant to the review test.
6. The application was dismissed. There was no application for costs.

• Isleworth Crown Court: a circuit judge refused M bail on 30 November, in proceedings concerning four alleged conspiracies to import cocaine.
• High Court (Administrative Court): judicial review was permitted and dealt with substantively. The application was dismissed because the refusal of bail was not perverse.