Shehzad, R (on the application of) v Newcastle Crown Court & Anor

A decision refusing bail must apply the statutory threshold that there are substantial grounds for believing that a specified risk exists. A failure to use the statutory formulation may justify judicial review where the wording creates genuine uncertainty about whether the correct threshold was applied. This is particularly important where the decision concerns personal liberty. The court may quash the refusal and remit the bail application for fresh determination by another judge.

The claimant faced allegations of rape and applied for bail after the magistrates’ court had refused it on grounds including failure to surrender, further offending and interference with witnesses. The Crown Court judge refused bail, stating that the claimant had every reason to fail to surrender, that there was a possibility of further offences and that there was a risk of witness interference. The claimant sought permission to apply for judicial review, arguing that the ruling did not apply the statutory requirement of substantial grounds for believing that the relevant risks existed.

The central issue was whether the Crown Court’s formulation showed that the correct statutory threshold had been applied.

1. Relief granted. Permission to apply for judicial review was granted, the refusal of bail was quashed, and the matter was remitted to the Crown Court for reconsideration by a different judge.
2. The statutory test required substantial grounds for believing that the defendant would fail to surrender, commit further offences or interfere with witnesses. The Crown Court judge did not use that formulation and instead referred to the claimant having every reason to fail to surrender, the possibility of further offences and a risk of interference.
3. The judge was highly experienced and might well have intended to apply the statutory test. In an ordinary case, the wording might be treated as an inadvertent misuse of language. However, the issue concerned the claimant’s liberty, and the allegations were serious enough to make the proper assessment of risk particularly important.
4. The claimant was therefore entitled to have his application assessed by reference to the correct statutory formulation. The renewed application was to be considered afresh by another Crown Court judge. An expedited transcript was ordered at public expense, and the claimant’s publicly funded costs were to be assessed on the standard basis.

1. Newcastle Magistrates’ Court: refused bail on grounds including risks of failure to surrender, further offending and interference with witnesses.
2. Newcastle Crown Court: HHJ Whitburn QC refused a renewed bail application on 8 May 2012.
3. High Court (Administrative Court): quashed the Crown Court decision and remitted the bail application for fresh consideration by another judge.