Remice v HMP Belmarsh

A Crown Court hearing an appeal against a magistrates’ decision to grant bail is not directly bound by the remand provisions of the Magistrates’ Courts Act 1980. It must, however, act consistently with the statutory rights which those provisions confer on defendants. Where the defendant is to be remanded in custody for more than eight clear days after the relevant magistrates’ court appearance, the safeguards in section 128A(2) must be deployed, including an opportunity to make representations and the fixing of an appropriate date. A change in the procedural route by which custody follows a bail appeal cannot deprive the defendant of those rights. Failure to provide the statutory safeguards may render the detention unlawful and justify habeas corpus.

The claimant was charged with two offences of witness intimidation. The magistrates initially refused bail, later granted bail subject to conditions, and remanded him to a further date. The prosecution appealed to the Crown Court, which allowed the appeal, refused bail and remanded the claimant in custody.

The Crown Court did not set a return date. The claimant contended that his continued detention became unlawful because he had not been produced before the magistrates within eight clear days and the statutory conditions for a longer remand had not been applied. The central issue was whether the Crown Court had to observe the safeguards in section 128A(2) when its order would result in custody continuing beyond eight days.

1. The application for habeas corpus succeeded and the writ was ordered to issue.

2. Section 128(6) of the Magistrates’ Courts Act 1980 prevents a person being remanded in custody for more than eight clear days unless section 128A or section 129 applies. Section 128A(2) permits a longer remand only where its specified conditions are met, including an opportunity for representations and the fixing of a date for the next stage of the proceedings.

3. The claimant’s earlier remand on 27 February did not engage section 128A(2). He was remanded for the ordinary eight-day period, and the later grant of bail did not reduce the rights applicable when the Crown Court subsequently ordered custody.

4. Although sections 128 and 128A do not directly bind the Crown Court, it must act in this area consistently with the rights conferred by the Act. The claimant could have no lesser rights merely because custody followed a successful prosecution appeal rather than a further remand by the magistrates.

5. If the Crown Court intended to remand the claimant for more than eight days after 9 March, it had to apply the safeguards in section 128A(2), including giving a distinct opportunity to make representations on that issue. It had not done so, and the detention was unlawful.

6. The court noted that this was the third similar case over a considerable period and indicated that Crown Court judges hearing bail appeals should give consideration to applying section 128A.