Fergus, R (on the application of) v Southampton Crown Court

Judicial review of a Crown Court decision refusing or withdrawing bail is available only within a narrow scope and should be exercised sparingly. The court applies the Wednesbury test robustly, recognising the Crown Court’s experience in bail decisions. Bail should be refused or withdrawn only where custody is necessary because substantial grounds establish a statutory risk, such as failure to surrender, offending on bail, interference with witnesses or obstruction of justice. The decision-maker must state the underlying facts and explain why bail is necessary. Merely reciting a statutory ground is insufficient. A failure to give reasons, viewed against the presumption in favour of bail and the defendant’s compliance with existing conditions, may render the decision irrational.

The claimant was charged with serious drug offences and possession of criminal property. He had been granted bail by the magistrates and complied with his residence and reporting conditions. After failing to attend one hearing because he was in hospital, he supplied supporting medical evidence and attended the adjourned hearing, despite knowing that he might be re-arrested for further questioning.

At the adjourned hearing, the Crown Court withdrew bail, referring to the seriousness of the charges and the claimant’s convictions, including convictions for failing to surrender. The claimant sought judicial review, alleging irrationality, frustration of legitimate expectation and failure to give reasons. The central issue was whether the decision to withdraw bail was lawful.

1. The Administrative Court applied the approach stated in R (on application of M) v Isleworth Crown Court [2005] EWHC 363 (Admin): judicial review of a bail decision is a jurisdiction to be exercised very sparingly, applying the Wednesbury principle robustly while respecting the Crown Court’s everyday experience of bail applications.

2. Under the Bail Act 1976, there is a presumption in favour of bail. Custody is justified only where it is necessary because substantial grounds exist for believing that the defendant will fail to surrender, commit an offence on bail, interfere with witnesses or otherwise obstruct justice. The seriousness of the alleged offences and relevant previous convictions may be material, but they must be assessed against all the circumstances.

3. The court adopted the reasoning in R (on application of Thompson) v Central Criminal Court, that the question is whether custody is necessary, rather than simply whether bail should be granted. A decision withdrawing bail must identify a good reason connected with the facts. It must do more than recite one of the statutory grounds.

4. The claimant had complied with bail, surrendered when required, provided medical evidence explaining his earlier absence and attended court despite expecting re-arrest. The prosecution had not opposed bail and there was no evidence of offending or breach while on bail. The Crown Court gave no adequate factual reason for concluding that custody was necessary. The decision was therefore irrational.

5. The decision of His Honour Judge Boggis dated 31 October 2008 was quashed. The claimant was re-admitted to bail on the previous conditions, namely residence at his mother’s address and reporting to Dulwich Police Station. The claimant’s publicly funded costs were subject to detailed assessment.

1. Southampton Crown Court: on 31 October 2008, His Honour Judge Boggis withdrew the claimant’s bail.

2. High Court (Administrative Court): the decision was quashed and bail was restored on the existing conditions.