Thomas, R (on the application of) v Greenwich Magistrates' Court

In bail-breach proceedings under Bail Act 2003, the court may rely on written hearsay evidence. Strict criminal evidential rules do not apply. The decision-maker must fairly evaluate the quality and weight of the material, taking account of its hearsay nature and the consequences for the defendant.

Section 7(5) requires a two-stage process: first, deciding whether a bail condition has been breached; secondly, deciding whether to remand the defendant in custody or grant bail again. Judicial review will not interfere with the factual finding unless it was legally flawed or one which no reasonable judge could have reached.

The claimant sought judicial review of a decision by District Judge Wallis at Greenwich Magistrates' Court on 28 March 2008. The District Judge found that the claimant had breached a condition of bail excluding him from a specified estate and remanded him in custody.

The prosecution relied on a written statement from a police officer who said that he had identified the claimant in a car within the exclusion zone. The officer was not present to give evidence or be cross-examined. The claimant argued that the hearsay evidence was inadmissible or insufficient, that submissions on identification evidence had been wrongly restricted, and that the District Judge had failed to conduct the separate decision on whether bail should be withdrawn.

1. Application refused. The District Judge was entitled to rely on the police officer's written hearsay statement. Bail proceedings are not equivalent to a criminal charge, and strict evidential rules do not apply. Written evidence may be used, provided that the defendant has a fair opportunity to comment on and answer it and the court properly evaluates its quality, including the fact that it is hearsay and has not been tested by cross-examination. This was the approach identified in R (on the application of Director of Public Prosecutions) v Havering Magistrates' Court CO/3972/2000 (15 December 2000).
2. Section 7(5) of the Bail Act 2003 requires two stages. The court must first decide whether a bail condition has been breached. If so, it must then decide whether to remand the defendant in custody or grant bail on the same or different conditions. The District Judge's decision and statement sufficiently demonstrated that he had undertaken the second stage.
3. The Criminal Justice Act 2003 did not alter the established approach to evidence in bail proceedings. Nor did the reasoning in Al-Khawaja and Tahery v United Kingdom (Application Nos 26766/05 and 22228/06) (20 January 2009), which concerned criminal proceedings within Article 6(3) of the Convention. R (on the application of Cleary) v Highbury Corner Magistrates' Court [2006] EWHC 1869 (Admin) concerned closure proceedings under a different statutory regime and did not require a different approach to bail evidence.
4. The identification evidence was capable of supporting the finding on the balance of probabilities. The dangers of brief identification were matters for the District Judge to evaluate. His conclusion was not one which no reasonable judge could have reached and was not susceptible to challenge on judicial review.
5. Permission to appeal was refused. The claimant was entitled to detailed assessment of the publicly funded costs.

The claimant obtained permission from Charles J to seek judicial review of the decision made by District Judge Wallis at Greenwich Magistrates' Court. The Administrative Court refused the application and refused permission to appeal.