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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McElkerney v Highbury Corner Magistrates Court [2009] EWHC 2621 (Admin) (09 July 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2621.html Cite as: [2009] EWHC 2621 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9th July 2009

1. LORD JUSTICE RICHARDS: The claimant, Emmanuel McElkerney, is the subject of proceedings in Highbury Corner Magistrates' Magistrates' Court relating to a charge of common assault against his partner, Ashley Poole. We are told that there are separate proceedings in the Crown Court with which we are not directly concerned in this case.
2. On 12th March 2009 the claimant was remanded by the magistrates on conditional bail, the conditions being: (a) to live and sleep at his home address; and (b) not to have direct or indirect contact with Ashley Poole.
3. On 16th June he was arrested for breach of bail. The police came to his address and found Ashley Poole there. His explanation is that she let herself into the property and he did not ask her to leave because she said she was desperate to see him and because he loves and cares for her. The police, however, arrested him for breach of bail. He was arrested at 11.50 am.
4. The time is important because, by section 7(4) of the Bail Act 1976, where a person who has been released on bail in criminal proceedings is arrested for breaking conditions of bail he shall be brought as soon as practicable and in any event within 24 hours after his arrest before a justice of the peace. By section 7(5), a justice of the peace before whom a person is brought under subsection (4) may, if of the opinion that a person has broken any condition of bail, remand him in custody.
5. Following his arrest the claimant was held in custody at the police station for the rest of the day and overnight. The following day, 17th June, he was brought to the Magistrates' Court. A partner in a firm of solicitors who represents him happened to be at the court and was informed of his presence there. The partner, Mr Punatar, arrived in the cells at about 11.25 am to take instructions from the claimant. At 11.30 am the case was called on in court before a district judge. That at least is the time given by Mr Punatar. A letter from the Magistrates' Court to which I will refer further in a moment gives a somewhat earlier time, but nothing turns on this point.
6. After he had gone into court there was some discussion between Mr Punatar, the district judge and the court's legal adviser about the time limit. The outcome was that the matter proceeded. Mr Puntar was given disclosure by the Crown Prosecution Service representative and took instructions from the claimant in the dock. At about 11.40 am the alleged breach was put to the claimant and denied by him. The prosecution opened its case. The claimant gave brief evidence and Mr Punatar was then invited to address the district judge as to why he considered there had been no breach of bail.
7. Before he had finished his submissions he became aware that the time had gone past 11.50 am. He submitted to the court that the 24-hour time limit under section 7 of the Bail Act had therefore expired and that the court no longer had jurisdiction to deal with the alleged breach. The district judge rejected that submission and went on to find the breach of bail proved and to remand the claimant in custody.
8. This court now has before it an application for habeas corpus, founded on the contention that since the district judge had not reached a decision as to breach of bail within 24 hours of the claimant's arrest, by virtue of section 7(4) of the Bail Act he lacked jurisdiction to deal with the matter and could not lawfully proceed to make an adverse finding or to remand the claimant in custody.
9. Looked at as a legal point in isolation, the contention derives some support from the decision of Forbes J in The Queen on the application of Culley v Crown Court at Dorchester [2007] EWHC 109 (Admin), in which it was held that a decision has to be reached by the justice, or in that case by the Crown Court judge exercising the powers of a justice, within 24 hours of the arrest.
10. For my part, however, I would wish to look at the point more closely if it were essential for the resolution of the present application. The statutory requirement is that the person be brought before a justice as soon as practicable and in any event within 24 hours after his arrest. It is not on the face of it a requirement that the justice's decision be reached within that 24-hour period. Nor am I satisfied that the cases relied on in Culley lead to the conclusion reached by Forbes J in that case.
11. In my judgment, however, no decision is required on the point in the present proceedings. That is because of information provided by the Magistrates' Court in a letter dated 8th July 2009 to the Administrative Court Office and backed up by information provided by the Crown Prosecution Service in writing and through Mr Dickinson in court. The letter from the Magistrates' Court states that when the claimant was remanded in custody on 17th June, he was remanded to appear again before court on 24th June in order that he might make a further application for bail. On 24th June the court heard a further full bail application by the claimant and having heard it made a fresh decision remanding the claimant in custody.
12. The statutory position is that under Part IIA of schedule 1 to the Bail Act, it the duty of the court to consider at each subsequent hearing whether the defendant ought to be granted bail, and at the first hearing after that at which the court decided not to grant him bail the defendant is entitled to support his application for bail with any further argument of fact or law that he desires. This is by way of distinction from subsequent hearings where the court need not hear argument as to fact or law which it has heard previously.
13. So the decision of the court on 24th June was a fresh decision, taken pursuant to those statutory provisions. It was taken by a different tribunal following full argument. It plainly supersedes the decision of 17th June and, as it seems to me, creates in itself what is, on the face of it, a perfectly lawful basis for the continued detention of the claimant, even if the decision of 17th June were found to have been made without jurisdiction. If that is right, then it follows that the application for habeas corpus has become academic and pursuit of that application is misconceived.
14. Miss Hart has sought to dissuade the court from pursuing that line of reasoning. She has done so by making submissions about the status of the decision on 24th June. She says that that hearing would not have taken place but for the earlier decision on 17th June which it is sought to impugn in the habeas corpus proceedings. That may be so, but the fact is that there was a further hearing on 24th June and the decision taken at that hearing was a fresh decision of the kind that I have already indicated. It seems to me that the mere fact that it would not or might not have taken place but for the 17th June decision does not assist the claimant.
15. Miss Hart then raises points of concern, if not challenge, as to the reasons given by the court on 24th June for the decision to remand in custody. The relevant form, which we have been shown, identifies as reasons for refusal of bail: failure to surrender, breach of bail conditions and breach of Crown Court bail. As to failure to surrender, Miss Hart says that there had been no previous mention of any such failure, although of course the fact, if it be a fact, that there had been no previous failure to surrender would not preclude the justices from reaching the view that there were reasonable grounds to consider that there would be a failure to surrender in the future.
16. As to breach of bail conditions, whether in the Magistrates' Court or in the Crown Court, Miss Hart submits that that must be a reference to the finding on 17th June that there had been a breach of bail. There had been no change of circumstances between the two dates and nothing else that could amount to a breach of bail conditions. Accordingly it is said that if the earlier decision was invalid it taints the decision reached on 24th June.
17. In my view, any complaint as to the lawfulness of the decision reached on 24th June would have to be brought by way of a judicial review application targeted at that decision, accompanied by a statement of the facts and grounds and supported by relevant evidence. The nature of the case that would be advanced by way of challenge to that decision is different in kind from the case currently advanced in relation to the decision on 17th June. In relation to the 17th June it is concerned essentially with a jurisdictional question as to whether the district judge had the power to make the decision he did to remand in custody following the expiry of 24 hours from the time of arrest. In relation to 24th June, the essential question would be whether a reasonable bench of magistrates could have reached the decision they did as regards bail and/or whether the reasons given were defective - legal issues of a kind which, if established, would go to the quashing of an otherwise valid decision.
18. It seems to me that it is not open to the claimant to convert the habeas corpus challenge to the decision of 17th June into a challenge by way of judicial review to the decision of 24th June. If there is to be a challenge to the decision of 24th June, it will have to be properly formulated and presented to the court in a separate application.
19. For those reasons I would dismiss the existing application for habeas corpus.
20. MR JUSTICE MADDISON: I agree.
21. LORD JUSTICE RICHARDS: Can we give you back these documents. I am not sure who has which of those. Thank you very much for your assistance and for dealing as best you could with the situation you found facing you when you arrived in court.
22. MISS HART: Thank you my Lord.
23. LORD JUSTICE RICHARDS: Do you need detailed assessment for public funding or anything of that sort?
24. MISS HART: I would be grateful for confirmation of that. Also am I to understand, as I anticipate I would be, it should be intended by the court declined to consider the last paragraph of the skeleton submissions in which I have asked, invited--
25. LORD JUSTICE RICHARDS: That is correct. It is not part and parcel of the habeas application at all.
26. MISS HART: No it is a question that is connected but it is a judicial review question perhaps.
27. LORD JUSTICE RICHARDS: If it arises no doubt it can be thought about in the context of the decision of 24th June, which is really the live decision to focus on now.
28. MISS HART: Thank you my Lord.