S v Northampton Crown Court & Anor

A Crown Court bail decision is reviewable where it does not relate to a trial on indictment, but review is appropriate only exceptionally. The Administrative Court examines the fairness of the procedure, not the merits of bail and cannot substitute its own decision.

Where closed material is relied upon against a remanded defendant, fairness depends on context, including the consequence for liberty, the importance of the material and whether safeguards can enable the defendant to address it. A special advocate should be appointed where necessary to secure a fair procedure. Administrative inconvenience is not a sufficient reason to dispense with that safeguard.

The claimant was awaiting retrial after the Court of Appeal confirmed that jury tampering had occurred and remitted the question of trial by jury or judge alone. Flaux J ordered a retrial by judge alone and refused bail, relying materially on closed evidence concerning the alleged jury tampering.

The claimant sought judicial review of the bail decision. The central issues were whether the Administrative Court had jurisdiction, whether the procedure was fair where closed material was relied upon, and whether a special advocate was required.

1. Jurisdiction and scope. The Administrative Court had jurisdiction to review the refusal of bail because the decision was made when no trial was in progress and therefore did not relate to a trial on indictment. Such review remained exceptional, Parliament having removed the ordinary right to apply to the High Court in respect of bail decisions.
2. The court reviewed the process rather than the merits of bail. It had no power to make a fresh bail decision. The relevant question was whether the claimant had been afforded a fair opportunity to deal with material relied upon against him.
3. Fairness was context-dependent. The claimant’s liberty was at stake, and the closed material was materially relied upon in assessing risks of absconding and interference with the course of justice. The claimant knew the allegations in summary, but the Court of Appeal had made no finding that he had himself arranged or participated in the jury tampering.
4. The principles in Home Secretary v AF (Number 3) [2009] UKHL 28 and A v UK [2009] 49 EHRR 29 applied in principle. The defendant needed sufficient information to give effective instructions to a special advocate, while legitimate public-interest restrictions on disclosure could remain.
5. The guidance in R (AHK and Others) v Home Secretary [2009] EWCA (Civ) 287 required consideration of whether a special advocate was necessary to determine the issues fairly. The importance of the decision, the difficulty of challenging the case in open court and the potential assistance of a special advocate were material. Administrative inconvenience was not an answer.
6. Flaux J had not been asked to consider a special advocate in the distinct context of bail. Because the bail decision relied significantly on closed material and affected liberty, a special advocate ought to have been appointed. The bail decision was quashed. The claimant remained lawfully detained under the earlier decision of Mr Recorder Creed. Any fresh bail application relying on closed material should be heard with a special advocate appointed.

• Court of Appeal (Criminal Division): In R v KS [2009] EWCA Crim 2377, the court confirmed that jury tampering had occurred, directed that the trial judge could not continue, and remitted the mode-of-trial decision. It did not determine bail.
• High Court (Administrative Court): The claimant’s judicial review of Flaux J’s bail decision succeeded. The decision was quashed.