Cardin, R (on the application of) v Birmingham Crown Court & Anor

Section 1(7) of the Bail (Amendment) Act 1993 does not automatically terminate a prosecution appeal merely because written notice was not served within two hours. The word “fails” imports fault. Where service was prevented by circumstances outside the prosecution’s control, and the prosecution acted with due diligence, the Crown Court retains jurisdiction. The defendant’s detention remains authorised by the court’s warrant and section 1(6). Rule 14.9(10) of the Criminal Procedure Rules creates a mechanism for release when the statutory failure is established; it does not impose on the magistrates’ court a general duty to investigate compliance. The claim was therefore refused permission.

The claimant, who had been granted bail by Birmingham Magistrates’ Court, was detained pending a prosecution appeal. An administrative error caused the remand warrant to record that written notice of appeal had been served when it had not. The notice was sent to the prison, but prison staff did not serve it.

Birmingham Crown Court nevertheless heard and allowed the prosecution’s appeal, applying R (Jeffrey) v Warwick Crown Court [2002] EWHC 2469 (Admin). The claimant sought judicial review, arguing that section 1(7) of the Bail (Amendment) Act 1993 had deemed the appeal disposed of and that the magistrates’ court had to secure his release.

1. Lawfulness of detention. The error on the warrant did not invalidate the claimant’s detention. A custodial authority must rely on a court order, even if it appears erroneous, unless and until the order is amended or revoked. The warrant lawfully directed detention until further order. In addition, section 1(6) of the Bail (Amendment) Act 1993 required detention after oral notice of appeal until the appeal was determined or otherwise disposed of. The error caused no prejudice and did not engage article 5 of the Convention.
2. Construction of section 1(7). The section must be read purposively. “Where the prosecution fails” refers to a failure involving fault, rather than every case in which service is unsuccessful. The prosecution must still act diligently and cannot deliberately avoid the statutory requirement. However, where personal service within the period is impossible because of circumstances outside prosecutorial control, non-service does not deprive the Crown Court of jurisdiction.
3. The approach in R (Jeffrey) v Warwick Crown Court [2002] EWHC 2469 (Admin) was sound and was correctly applied by the Crown Court. The reasoning in R v Soneji [2006] 1 AC 340 supported asking whether Parliament intended non-compliance to invalidate the subsequent exercise of power. The observations in R v Middlesex Guildhall Crown Court, ex parte Okoli [2001] Cr App R 1 did not require a different construction.
4. Rule 14.9(10) of the Criminal Procedure Rules provides a release mechanism once it is clear that the prosecution has not complied with section 1(5). It does not require the magistrates’ court to investigate or determine compliance. Here, the Crown Court’s jurisdiction had been upheld and the claimant’s continued detention remained governed by the warrant.
5. None of the judicial review grounds had a realistic prospect of success. Permission was refused.

This was a first-instance judicial review application in the Divisional Court of the High Court. The claimant challenged Birmingham Crown Court’s decision to hear and allow the prosecution’s bail appeal and the related magistrates’ court warrant.