TH v The Crown Court Wood Green & Ors

A Crown Court decision during an indictment trial to remand a witness in custody pending possible further evidence is a matter relating to the trial on indictment and is excluded from judicial review by section 29(3) of the Supreme Court Act 1981. Under section 4(3) of the Criminal Procedure (Attendance of Witnesses) Act 1965, detention may continue after a witness has completed his evidence where there is a real possibility of recall, provided a specific date is fixed and detention is reasonably necessary to secure attendance. The detention was lawful under article 5(1)(b) of the Convention. Other remedies, including habeas corpus and a properly constituted Human Rights Act damages claim, remain available.

The claimant, a 17-year-old prosecution witness, was remanded in custody by the Crown Court after giving evidence in a multi-handed trial. The trial judge fixed a later date for his possible recall, citing the real risk that further evidence might be required.

The claimant sought judicial review, release and damages under the Human Rights Act 1998. The Secretary of State challenged the Administrative Court’s jurisdiction under section 29(3) of the Supreme Court Act 1981. The central issues were whether the detention related to a trial on indictment, whether section 4(3) authorised continued detention after the initial evidence, and whether the detention breached article 5 of the European Convention.

1. Jurisdiction. The court rejected the argument that permission for judicial review had finally determined jurisdiction. Applying the ordinary meaning of section 29(3) of the Supreme Court Act 1981, the decision to detain the claimant as a witness during the trial, pending possible further evidence, related to the trial on indictment. The claim for a declaration and quashing order was therefore excluded. The claim for judicial-review damages was also dismissed.
2. Power to remand. Section 4(3) of the Criminal Procedure (Attendance of Witnesses) Act 1965 permitted detention beyond the first day of evidence. The power continued while the court reasonably anticipated that the witness might be required to give further evidence. Although such detention would be very rare, it could continue until the witness was released from further attendance.
3. Applicable threshold. The judge was entitled to treat the claimant’s hostility and previous non-co-operation as showing that he was likely to be able to give material evidence, even though he might choose not to do so. Section 4(3) did not require certainty that he would be recalled. A real possibility or real risk of further evidence, coupled with a fixed return date, was sufficient.
4. Article 5. The detention fell within article 5(1)(b) of the Convention. It secured the fulfilment of the specific and concrete obligation to attend court and give evidence if required in the particular trial. In light of the claimant’s previous failure to attend and his conduct when attending, detention for the period fixed was reasonably necessary. The damages claim under section 8 of the Human Rights Act 1998 was dismissed.
5. Obiter on damages. If there had been an article 5 breach, the court would have treated the judgment itself as just satisfaction. Any monetary award would have been in the hundreds rather than thousands of pounds.