Khan, R (on the application of) v Crown Prosecution Service

Judicial review of a Crown Court refusal of bail is available only in exceptional circumstances, ordinarily where the decision is irrational or procedurally unfair. A refusal made after a last-minute application, without adequate notice, without the defendant’s attendance or instructions, and on material that could not properly be checked may involve a breach of fairness. Where the reviewing court cannot itself determine whether bail should be granted, the appropriate remedy is a fresh bail application before a different judge. The application should be treated as a first application, without requiring proof of changed circumstances.

The claimant was awaiting trial in the Leicester Crown Court on a charge of prison mutiny. He had previously been granted unconditional technical bail while imprisoned, but the Crown Prosecution Service objected to his release shortly before the Easter vacation. The Crown Court refused bail in his absence, relying substantially on alleged risks of absconding and further offending.

The claimant sought judicial review, arguing that the last-minute procedure deprived him and his legal representative of a fair opportunity to respond to the allegations and supporting material. The central issue was whether the refusal was reviewable and, if so, what remedy was appropriate where the High Court could not determine the merits of bail itself.

1. Judicial review available. Judicial review of a Crown Court judge’s refusal of bail is available, but only in exceptional circumstances. The usual basis of review is irrationality, for which the threshold is high.
2. Procedural unfairness established. The Crown Prosecution Service gave inadequate notice of its objection. The claimant could not attend the hearing, his representative could not obtain proper instructions, and the material relied upon, including a police account of a probation report, could not properly be checked or answered. Those circumstances made the process unfair.
3. No determination of entitlement to bail. The High Court did not have sufficient information to decide whether bail should ultimately be granted. The available material might justify refusing bail, but might also support bail once full evidence and submissions were available.
4. Remedy. The claim was allowed. The matter was returned to the Leicester Crown Court for a fresh bail application before a different judge. It was to be treated as a first application, so no change of circumstances was required. The claimant had to receive a proper opportunity to meet the allegations and the relevant material had to be served.
5. Costs. The Crown Prosecution Service was directed to pay half the costs. No order was made for the remaining half, subject to detailed assessment of the publicly funded costs.

The judgment describes an earlier plea and directions hearing at which the claimant was remanded on unconditional technical bail. No appeal or lower-court judgment is stated.