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

When determining bail on a pre-sentence remand, the court must apply the statutory test in section 4(4) of the Bail Act, read with Schedule 1. Bail may be refused only where there are substantial grounds for believing that the defendant will fail to surrender, commit an offence on bail, or breach another applicable condition. A formulation based merely on uncertainty about attendance or future conduct reverses that test. Judicial review remains confined by the Wednesbury standard and will be exercised sparingly. However, applying the wrong legal test requires the decision to be quashed or remitted for reconsideration, even where the court considers that refusal might have been justified under the correct test.

The claimant, a 16-year-old defendant, sought judicial review of a Southampton Crown Court decision refusing bail after he had pleaded guilty, or indicated an intention to plead guilty, to receiving stolen food. He was remanded in custody pending reports and sentence. The Crown Court log recorded that the judge was not prepared to grant bail because he was not sure that the claimant would attend or stay out of trouble.

The Administrative Court considered whether it had jurisdiction to review a Crown Court bail decision at this late stage of proceedings. It also considered whether the decision was unreasonable and whether the Crown Court had applied the statutory test correctly.

1. Jurisdiction. The court was prepared to assume that judicial review jurisdiction existed, although it expressed considerable doubt about jurisdiction concerning bail at such a late stage of a trial on indictment. The issue was approached by reference to M v Isleworth Crown Court [2005] EWHC 363 Admin and the collateral-decision test stated in R v Manchester Crown Court ex parte [1994] 98 CAR 461.
2. Applicable bail test. Under section 4(4) of the Bail Act, applying Schedule 1, refusal of bail required substantial grounds for believing that the claimant would fail to surrender, commit further offences on bail, or breach another applicable provision. The judge’s formulation that he was not sure that the claimant would attend or stay out of trouble put the test the wrong way round.
3. Unreasonableness. The court would not have found the refusal intrinsically unreasonable under the correct test. The claimant’s conduct, previous convictions, association with others, the seriousness of the surrounding events and the possibility of custody could properly be considered. The jurisdiction was nevertheless one exercised only sparingly and in the clearest cases.
4. Remedy. Because the wrong legal approach had been applied, the claim was allowed. The decision was remitted for a fresh bail decision on the correct basis, after hearing counsel. The claimant was not to be released automatically: the Crown Court could continue the remand in custody if it reached that decision on the proper test and gave adequate reasons. Reconsideration was directed to take place as soon as possible.

The claim was a judicial review of a bail decision by HHJ Bogis sitting in Southampton Crown Court. The Administrative Court allowed the claim and remitted the matter to the Crown Court for reconsideration on the correct statutory basis.