Shergill, R (on the application of) v Harrow Crown Court & Anor

A Crown Court decision refusing bail is reviewable where it is collateral to the indictment and does not relate to an issue in the trial or delay its progress. Section 29(3) of the Supreme Court Act 1981 therefore does not ordinarily exclude judicial review of a pre-trial bail decision. Review is confined to exceptional cases and asks whether the decision was outside the bounds of reasonableness, applying the Wednesbury standard. A breach of bail conditions is not automatically sufficient, but may justify refusal when considered with the surrounding circumstances. Crown Courts should record the reasons for refusing bail, although a detailed written explanation of the whole hearing is unnecessary.

The claimant sought judicial review of a decision by His Honour Judge Black at Harrow Crown Court refusing bail after the claimant had breached conditions prohibiting contact with the co-defendant and entry into Harrow. Permission had been granted, and the Administrative Court proceeded to determine the claim substantively.

The principal issues were whether section 29(3) of the Supreme Court Act 1981 excluded review of the bail decision, and whether the refusal was unreasonable or inadequately reasoned.

1. Jurisdiction. The exclusion in section 29(3) of the Supreme Court Act 1981 concerns decisions relating to trial on indictment. A decision whether to grant bail is ordinarily collateral to the indictment, does not normally concern an issue in the trial, and does not delay the trial. The provision therefore did not prevent review of this pre-trial bail decision. The court left open whether a bail decision made after the trial had begun might require a different approach, because review could affect the continuing trial.
2. Intensity of review. Because Parliament had removed the right of application to the court in respect of bail, review would succeed only in exceptional cases. The question was whether the Crown Court judge’s decision fell outside the bounds of reasonableness, expressed in terms of Wednesbury irrationality. The statutory and Convention requirements were reflected in the approach required by the Bail Act 1976.
3. Application. A breach of a bail condition was not, by itself, necessarily enough to justify refusing bail. In this case, however, the claimant had entered Harrow and visited the co-defendant in breach of two conditions, against a background in which there were concerns about further offending and possible action against the victim. The refusal was within the bounds of reasonableness. The printed reason referring to the breaches was sufficient, and the claim was dismissed.
4. Recording reasons. Although not necessary to the result, it was stated to be most unfortunate that Harrow Crown Court did not record the reasons given for refusing bail. Reasons should be recorded so that any exceptional judicial review application can be properly assessed; recording the whole hearing and submissions was not said to be essential.

The claim arose from an urgent application to quash Harrow Crown Court’s refusal of bail. Permission was granted, and the Administrative Court determined the substantive claim. The claim was dismissed.