Hoskin, R (on the application of) v Northampton Crown Court

Although bail decisions attract a wide margin of judgment and robust review, the decision-maker must take account of the material circumstances bearing on the risk of non-surrender. The prospect of imprisonment on conviction is relevant, but is only one factor and must not receive disproportionate weight. A decision may be unreasonable where it fails to consider a defendant’s previous compliance with bail, stable circumstances, absence of convictions and willingness to accept conditions, or relies on an immaterial consideration. On quashing the refusal of bail, the reviewing court should not ordinarily grant bail itself or prejudge a fresh contested application.

The claimant sought judicial review of HHJ Bray’s decision on 3 August 2009 to refuse him bail in proceedings concerning alleged fraud offences. He had previously been granted unconditional bail on several occasions and had surrendered as required. He had no previous convictions, a settled address, family responsibilities and was willing to comply with conditions. The prosecution had not opposed bail before the Crown Court.

The challenge concerned whether the refusal was unreasonable or irrational, particularly because the judge had relied on the risk of a substantial sentence and had apparently treated the claimant’s prior report to police about the fraud as relevant to bail. The Administrative Court also considered the appropriate relief.

1. Judicial review threshold. A bail decision attracts a wide margin of judgment. The court should treat unreasonableness and irrationality robustly and should be slow to interfere with an experienced circuit judge’s decision. Nevertheless, the decision remains reviewable where relevant matters have been ignored or disproportionate weight has been given to an individual factor.
2. Assessment of risk. The likelihood of a substantial custodial sentence if convicted may be relevant to the risk of failure to surrender, but it is no more than one factor. The judge had apparently failed to take account of the claimant’s repeated compliance with bail, lack of previous convictions, settled home, family circumstances and willingness to accept onerous conditions. The apparent emphasis on a future prison sentence was disproportionate.
3. Irrelevant consideration. The claimant’s visit to the police before the alleged offences, even if capable of being viewed as an aggravating feature of the offences, was not shown to bear on whether bail should be granted. It may therefore have been an immaterial consideration.
4. Relief. The refusal of bail was quashed as unreasonable. The court declined to grant bail itself because the prosecution might advance further reasons on a fresh application, and it was inappropriate to prejudge that decision. A bail application was directed to be listed at Northampton Crown Court on the first available sensible date.

The claim was a substantive judicial review of HHJ Bray’s refusal of bail at Northampton Crown Court on 3 August 2009. The Administrative Court quashed that decision and directed that a fresh bail application be listed.