R, R (on the application of) v Snaresbrook Crown Court

The High Court’s power to intervene in bail decisions after the statutory changes in 2003 is confined to ordinary judicial review principles and must be exercised sparingly. A defendant within Bail Act 1976 section 4 is entitled to bail unless a statutory exception applies. A court withdrawing bail must identify the applicable exception, give adequate case-specific reasons, and afford the defendant a fair opportunity to make submissions. Conviction and an anticipated custodial sentence do not, without more, establish a sufficient risk of failure to surrender. Remittal is normally appropriate after procedural error. The High Court may exceptionally substitute its own decision where no properly directed judge could lawfully refuse bail.

R, aged 17, had been on conditional bail for approximately six months while facing trial for affray. After his conviction, the Snaresbrook Crown Court judge stated that a custodial sentence was inevitable and ordered that he be remanded in custody without hearing submissions on bail or giving reasons identifying the statutory ground for refusal.

R sought judicial review. The central issues were whether the Crown Court’s procedure and reasons were lawful, and whether the High Court should remit the bail decision or substitute its own decision.

1. Judicial review of bail. Following the approach identified in M v Isleworth Crown Court [2005] EWHC 363 (Admin), the High Court must be robust and very sparing when reviewing bail decisions within the criminal justice system. Its jurisdiction nevertheless permits intervention in limited cases of legal or procedural error.
2. Statutory entitlement and procedural duties. Under Bail Act 1976 section 4(1), a person to whom the section applies shall be granted bail unless a Schedule 1 exception applies. Section 4(4) applied because R had been convicted and his case was adjourned for sentencing purposes. The Crown Court therefore had to be satisfied that there were substantial grounds for believing that a statutory exception applied. Under section 5(3), it also had to give adequate reasons identifying both the ground relied upon and the case-specific basis for the decision. A defendant, particularly a child, must have a fair opportunity to make submissions before bail previously granted is withdrawn.
3. The judge’s immediate statement that custody was inevitable, refusal to hear counsel, and failure to identify or explain any Schedule 1 ground were serious procedural and reasoning defects. Conviction and an inevitable custodial sentence may heighten the risk of failing to surrender, but they do not themselves establish the statutory exception.
4. Substitution rather than remittal. Fergus v Southampton Crown Court [2008] EWHC 3273 (Admin) was materially different because it concerned an interlocutory decision before trial. Where the decision arises during an ongoing trial before the trial judge, remittal is ordinarily required after procedural error. Substitution is justified only where no reasonable judge, properly directing himself under the Act, could refuse bail on appropriate conditions.
5. Considering R’s age, his compliance with previous bail, the absence of offending while on bail, the delay before sentence, and strengthened conditions including electronic monitoring and a surety, the court concluded that no properly directed judge could refuse bail. Permission was granted, the claim was allowed, the Crown Court decision of 24 November 2011 was quashed, and bail was ordered forthwith on the scheduled conditions.

• High Court (Administrative Court): The claim for judicial review of the Snaresbrook Crown Court’s decision of 24 November 2011 was allowed. The decision was set aside and bail was ordered on specified conditions.