W & Ors v Crown Court at Croydon

Judicial review of a Crown Court bail decision is available where the decision concerns a retrial following an aborted trial and is not excluded by section 29(3) of the Senior Courts Act 1981. The review remains a public law review applying robustly applied Wednesbury principles. Article 5 of the ECHR does not require the Bail Act 1976 to be read down or replaced by a more intensive proportionality review. A Crown Court judge must engage with material changes in circumstances and with the individual circumstances advanced by each applicant. A conclusion that substantial grounds exist for refusing bail is insufficient without adequate reasons explaining how that conclusion was reached.

The claimants were charged with serious offences and remanded in custody. Their custody time limits were extended, and their trial began in October 2024. After late disclosure issues, the jury was discharged and the trial was aborted. A new trial was fixed for July 2025.

The claimants then applied for bail, relying on the aborted trial, the loss of custody-time-limit protection, the complainant’s completed evidence, and their individual circumstances. The Crown Court refused bail, concluding briefly that there were substantial grounds for believing that each claimant would fail to surrender, interfere with witnesses and commit further offences.

The central issues were whether section 29(3) of the Senior Courts Act 1981 excluded judicial review and whether the refusal was unlawful for failure to consider material matters or give adequate reasons.

1. Jurisdiction. Permission was granted and the judicial review was allowed. Section 29(3) of the Senior Courts Act 1981 excludes review of matters relating to a trial on indictment once that trial has started. Here, however, the trial had been aborted and there was no current trial. The claimants were seeking bail before a jury had been sworn for the future retrial. The statutory exclusion therefore did not apply.
2. Applicable review. The Crown Court’s bail decision was reviewable on robustly applied Wednesbury principles. Article 5 of the ECHR did not require a more intensive review or require the Bail Act 1976 to be read down. The Bail Act remained the governing mechanism. Its requirements were capable of giving effect to the relevant Convention principles, including attention to relevant considerations, exclusion of irrelevant considerations and adequate reasons.
3. Material considerations. The aborted trial, the resulting loss of custody-time-limit protection, the new trial date, and the fact that the complainant’s evidence had been given and cross-examined were material considerations. The Crown Court judge had to engage with them, although the weight assigned to them remained a matter for the judge.
4. Adequacy of reasons. The refusal gave conclusions without explaining how the asserted risks had been established. It did not address the different cases advanced by the four claimants or their personal circumstances. The judge’s familiarity with the evidence and the written and oral submissions did not relieve him of the ordinary public law duty to explain the decision. The decision was quashed and the outstanding bail applications were remitted to Croydon Crown Court. The claimants remained on remand pending reconsideration.

This was a first-instance judicial review of the decision of HHJ Hyams-Parish at Croydon Crown Court on 18 November 2024. Freedman J ordered a rolled-up and expedited hearing on 2 December 2024.

The Administrative Court granted permission, granted judicial review, quashed the decision in respect of each claimant and remitted the outstanding bail applications to Croydon Crown Court.