Malik v Central Criminal Court

A power permitting bail applications to be heard in chambers does not necessarily establish a starting presumption in favour of private hearings. In a case concerning the liberty of the subject, the general presumption in favour of open justice requires that issue to be considered carefully. A judge may also err by treating the Criminal Procedure Rules 2005 or the Bail Act as expressly requiring a chambers hearing unless the court directs otherwise, when the rule does not say that. Personal attendance at a bail hearing is a distinct issue; representation by a lawyer may satisfy Article 5 requirements.

The claimant sought judicial review of decisions by the Common Sergeant of London concerning his bail application. The challenge was not to the refusal of bail itself, but to the refusal to hear the application in public and with the claimant present.

The Divisional Court considered whether the claimant’s personal attendance was required by Article 5 of the European Convention on Human Rights, and whether the judge had properly exercised the power under Rule 16.11 of the Criminal Procedure Rules 2005 to sit in chambers.

1. Permission. The renewed application for permission to seek judicial review was granted. The court did not determine the substantive challenge or quash the decisions at this stage.
2. Personal attendance. Per Lord Justice Keene, representation by a lawyer was sufficient to meet the requirements of Article 5 in relation to the bail application. The bail application was not regarded as part of the trial process. The argument that a judge should see the defendant in the dock was not viewed as compelling, but remained arguable for the substantive hearing.
3. Private hearing. Rule 16.11 (1) of the Criminal Procedure Rules 2005 confers a power for the specified Crown Court jurisdiction, including bail applications under paragraph 2 (a), to be exercised by a judge sitting in chambers. The word “may” is significant and does not necessarily make a chambers hearing the starting presumption.
4. The general presumption in favour of open justice is particularly important where the liberty of the subject is involved. It was therefore properly arguable that the usual Crown Court practice of hearing bail applications in chambers required fresh consideration, although private hearings may be justified in particular cases, including to protect a defendant from prejudicial publicity.
5. The judge had arguably misconstrued Rule 16.11 and the Bail Act by stating that bail applications should be heard in chambers unless the court directed otherwise. That possible error could undermine the decision.
6. The request for an immediate quashing order and remittal was refused. The substantive application was directed to be heard by a two-judge Divisional Court before 26 May 2006, with a skeleton argument from the Crown to be filed and served by 4 pm on 16 May 2006.

This was a renewed application for permission to seek judicial review of the Common Sergeant’s decisions. The Divisional Court granted permission but declined to grant immediate substantive relief.