Shafaquat Afzal Hussain, R (on the application of) v Crown Court at Leeds

On judicial review of bail decisions, the High Court applies a robust but sparing reasonableness review. The Crown Court is the primary evaluator of risk and must be afforded appropriate latitude.

Where a defendant seeks variation of bail conditions because of changed circumstances, reasons must be legally adequate in context. They must show that the court addressed the substance of the application, including proposed safeguards, but need not mention every condition expressly where the conclusion is clear.

Conditions restricting travel remain lawful where the Crown Court reasonably concludes that they are necessary and proportionate to secure surrender, even where substantial security and surety are offered and Article 8 rights are engaged.

The claimant faced two historic rape charges and had been on conditional bail since October 2021. His conditions prohibited travel outside the United Kingdom and required him to surrender his passport.

He applied to the Crown Court to vary those conditions so that he could accompany his seriously ill mother to Pakistan for her funeral and burial. The second application offered a fixed itinerary, cash security totalling £40,000 and a substantial surety. HHJ Singh refused the application, recognising its reasonableness but considering that travel created a substantial risk that the claimant would not return.

The claimant sought judicial review on two grounds: legally inadequate reasons and a decision beyond the bounds of reasonableness, including disproportionality under Article 8. The central issues were whether the reasons were legally adequate and whether the refusal involved public law error.

1. Permission and disposition. Permission for judicial review was granted because the claim crossed the modest threshold of arguability. The substantive claim was dismissed, with costs assessed at £2,500 payable to the Crown Prosecution Service.
2. Statutory framework. Under Bail Act 1976, section 3(6)(a), conditions may be imposed where they appear necessary to secure surrender to custody. Schedule 1, paragraph 2(1)(a), permits bail to be withheld where there are substantial grounds for believing that the defendant would fail to surrender. The two tests are distinct in formulation but closely interrelated. In the circumstances, there was no distinction of substance for the court’s purposes.
3. Adequacy of reasons. The common law filled the apparent gap in section 5(3), which does not expressly require reasons for refusing to vary bail conditions. The reasons had to be legally adequate in the circumstances, particularly because the application relied on changed circumstances and new safeguards. However, reasons need not expressly identify every proposed condition. Read in context, HHJ Singh’s reasons addressed the surety and security and concluded that they did not sufficiently allay the risk of non-return.
4. Standard of review. Following the approach identified in R (Iqbal) v Canterbury Crown Court, judicial review permits intervention only where the judge wrongly exercised the discretion or the decision fell outside the bounds of reasonableness. This requires robust application of Wednesbury principles, exercised sparingly. The Crown Court remains the primary judicial decision-maker on bail risk and is entitled to latitude arising from its experience and expertise.
5. Reasonableness and proportionality. The refusal was not beyond the bounds of reasonableness. The serious charges, potential lengthy custodial sentence, links to Pakistan and the absence of an extradition treaty supported the risk assessment. The substantial security and surety were relevant safeguards, but the Crown Court was entitled to conclude that they did not remove the substantial risk of non-return. Retaining the travel restrictions was necessary, proportionate and compatible with the relevant Article 8 balancing exercise. The court stated that it would have upheld the decision even applying an objective correctness standard.

This was a first-instance judicial review of HHJ Singh’s refusal on 22 December 2022 to vary the claimant’s bail conditions. Permission was granted by Bourne J on 29 December 2022, and the Administrative Court dismissed the substantive claim.