McElkerney v Highbury Corner Magistrates Court

A habeas corpus application may become academic where a later, fresh and apparently lawful remand decision provides an independent basis for detention, even if the earlier decision is subsequently shown to have been made without jurisdiction. A later bail hearing may constitute a fresh decision where the court is required to reconsider bail and hears further argument. Any challenge to that later decision must be brought by a properly formulated judicial review application. The court left undecided whether section 7(4) of the Bail Act 1976 requires the decision on an alleged breach of bail to be reached within 24 hours of arrest.

The claimant was arrested for allegedly breaching conditional bail imposed in criminal proceedings. He was brought before the magistrates within 24 hours, but the hearing continued beyond that period. The district judge rejected his submission that the court had consequently lost jurisdiction, found the breach proved and remanded him in custody.

Before the Administrative Court, the claimant sought habeas corpus. Before the application was heard, the magistrates had conducted a further full bail hearing and made a fresh decision to remand him in custody. The central issues were whether the later decision independently justified his detention and whether any challenge to it could be pursued within the existing habeas corpus proceedings.

1. The application was dismissed. The court did not decide whether section 7(4) of the Bail Act 1976 requires the justice’s decision on an alleged breach of bail to be reached within 24 hours. The issue had been considered in The Queen on the application of Culley v Crown Court at Dorchester [2007] EWHC 109 (Admin), but it was unnecessary to resolve it.
2. Under Part IIA of Schedule 1 to the Bail Act 1976, the court must consider at each subsequent hearing whether the defendant ought to be granted bail. At the first hearing after bail has been refused, the defendant is entitled to support the application with any further argument of fact or law desired. The hearing on 24 June was therefore a fresh decision by a different tribunal following full argument.
3. That fresh decision superseded the decision made on 17 June and provided, on its face, a lawful basis for the claimant’s continued detention, even if the earlier decision had been made without jurisdiction. The habeas corpus application had consequently become academic.
4. A challenge to the lawfulness of the 24 June decision would raise different issues, including whether a reasonable bench could have reached the decision and whether its reasons were legally defective. Such a challenge had to be brought by a separate judicial review application supported by a statement of facts and grounds and relevant evidence. The claimant could not convert the existing habeas corpus challenge into such an application.

The judgment describes earlier remand and bail decisions by Highbury Corner Magistrates’ Court. No appellate history is stated.