Jake Hammond v Governor of HMP Winchester

Where a prosecutor appeals against the grant of bail, the requirement in section 1(8) of the Bail (Amendment) Act 1993 that the appeal be commenced within 48 hours, subject to the stated exclusions, is mandatory. The provision must be construed narrowly because it protects the liberty of the subject. Limited flexibility may apply where the prosecution proves due diligence, absence of fault, circumstances outside its control, and a modest delay that causes no material prejudice. Absence of prejudice is not decisive. Once prima facie non-compliance is shown, the prosecution bears the burden of establishing that its right to pursue the appeal continues. Without that justification, the appeal is treated as disposed of and detention based on it is unlawful.

The claimant had been granted conditional bail by Southampton Magistrates’ Court on 23 December 2023. The prosecution gave oral notice of appeal four minutes later and served written notice. The claimant was remanded in custody pending the prosecution’s appeal.

The appeal was not commenced within the 48-hour period required by section 1(8) of the Bail (Amendment) Act 1993. It was listed for 2 January 2024. The claimant applied for habeas corpus, raising the question whether continued detention remained lawful despite the failure to commence the appeal within the statutory period.

1. Disposition. The claimant was ordered to be released immediately, subject to the conditions imposed by the magistrates. The prosecution’s bail appeal was treated as disposed of.
2. The remand warrant identified the basis of detention as a pending prosecution appeal. If no appeal was lawfully pending, the basis of detention fell away. Once the claimant established prima facie non-compliance with the statutory time limit, the burden lay on the prosecution to show that its right to pursue the appeal remained.
3. Section 1(8) of the Bail (Amendment) Act 1993 imposed a mandatory requirement. Treating it as merely directory could permit detention for an uncertain or potentially indefinite period. That construction was inconsistent with the fundamental common-law protection of liberty.
4. The narrow flexibility recognised in relation to other requirements of the Act also applied to section 1(8). The prosecution had to establish due diligence, that the delay was not its fault, and that it resulted from circumstances outside its control. The length of delay and prejudice to the defendant were relevant, but absence of prejudice was not decisive.
5. The prosecution provided no evidence explaining its communications with the Crown Court, its efforts to secure an earlier listing, or the obstacles preventing commencement within time. The court could not therefore conclude that the delay was outside the prosecution’s control or free from its fault. In any event, it was highly doubtful that flexibility could justify detention for a further four full days beyond the prescribed period.