Lahooty, R (on the application of) v Kingston Crown Court

On judicial review of a bail decision, the court may intervene only on established public-law grounds, including taking into account an irrelevant factor or failing to consider a relevant one. A trial judge’s assessment of the strength of the prosecution case and the risk of failing to surrender will generally attract substantial respect where the judge has heard the evidence. However, bail conditions must be evaluated on the evidence and in the circumstances of the individual case. Untested personal experience about the general effectiveness of curfews, reporting requirements or electronic tagging cannot, without more, provide a material basis for rejecting proposed conditions. The likely sentence must also be assessed by reference to the relevant future date, including the expected end of a retrial where that is material.

The claimant was charged with conspiracy to facilitate the arrival of asylum seekers and had been remanded in custody since October 2012. Her trial was discharged in its seventh week, through no fault of hers, and a retrial was fixed for January 2014.

On 24 May 2013, Her Honour Judge Kent refused bail, finding a substantial risk that the claimant would fail to surrender. The claimant proposed a security payment, residence at a specified address, twice-daily reporting and electronic tagging. She challenged the decision on the grounds that the judge had assessed the likely sentence at the wrong date and had relied on untested personal experience concerning the effectiveness of bail conditions.

1. Outcome. The decision refusing bail was quashed and the matter was remitted to the Crown Court for reconsideration by a different judge.
2. The Administrative Court’s role was confined to established Wednesbury grounds. It would not ordinarily interfere with the trial judge’s assessment of the strength of the prosecution case or the risk of flight where there was ample material supporting those assessments. The judge’s conclusion that there was a case to answer was not an impermissible application of a sufficiency-of-evidence test.
3. Assessment of flight risk was only one part of the bail decision. The court had to balance that risk against the extent to which proposed conditions could address it. The judge was entitled to consider the practical limitations of tagging and police-station reporting, but bail affected personal liberty. Untested judicial experience about the general effectiveness of those conditions, which the claimant had no proper opportunity to rebut, was a material factor that was not open to the judge on the evidence.
4. The judge had also considered the likely sentence by reference to the claimant’s time in custody at the date of the bail application, rather than the relevant position at the end of the proposed retrial. That was a further material failure to take into account a relevant consideration. The omission to refer expressly to the proposed £10,000 payment was not, standing alone, sufficient to justify intervention.
5. The fresh bail application was to be considered de novo by His Honour Judge Price QC, or another appropriately nominated judge. All relevant matters, including sentence, flight risk and bail conditions, could be reconsidered.

The claimant’s trial before Her Honour Judge Kent began on 8 April 2013 but the jury was discharged in the seventh week because the trial exceeded the anticipated timetable. On 24 May 2013, Judge Kent refused bail pending retrial. The Administrative Court quashed that decision and remitted the bail application for reconsideration by a different judge.