AC-2025-LON-003228 - [2025] EWHC 2569 (Admin)

I accept that these submissions are arguable and so I grant permission for judicial review on this first part of the case. But, in determining the claim, I do not accept that the Judge acted unlawfully or unreasonably or unfairly in the action that he took at 10.26am on 22 September 2025. In my judgment, when the question of bail was promptly raised as it was, the Judge responded in what was plainly the legally appropriate way. That was immediately to recognise that he ought to hear representations on the question of bail on their merits. He made clear that there would be the opportunity for him to do that later in the day; that he would do that later in the day; and that he would then make a decision in relation to bail on the merits having heard those representations. In my judgment, there was no public law error which vitiated the Judge’s handling of the case so far as bail was concerned; and there was certainly no knock-on vitiating error that precluded the Judge from being able with an open mind and fairly to consider the question of bail on the bail merits later in the day. That is what he did.

The Judge’s understanding, which as I have said as is reflected in the documents, is that the Claimant had surrendered and was now in “the custody of the court”. That explains why the judge reacted as he did to Mr Kherbans’s description that the Claimant “is on bail”. But, in my judgment, none of those that goes anywhere in any event. That is because this question arose: how was bail now to be dealt with? The Claimant had now pleaded guilty to three offences. He now stood convicted and was awaiting sentence. Bail was necessarily going to need a fresh decision. That was so, whoever is right or wrong about the contested points in the 1972 Act. It was already established that the Claimant’s case was being put back until later in the day, to revisit what should happen next in the case. There was no specific invitation to the Judge to grant “bail to the precincts of the Court” in the interim. The focus was understandably on where the Claimant was going to go that night. Was he going home or to prison on remand? The Judge promptly responded, making clear that he would deal with the question of bail; that he would listen; and that he would then decide.

In the event, what happened later in the day was that Mr Kherbane was anxious to focus the Judge’s attention on the importance of hearing representations and the idea of “rescinding” a prior decision to remand in custody. The Judge’s response to those submissions, in my judgment understandably, was to focus on the bail merits and on hearing the bail merits. The court log records that having been addressed on two occasions by reference to the caselaw including Rojas and Fergus and procedural fairness (at 3.49pm and again at 4.54pm), the Judge said this (at 4.54pm): “I am prepared to hear submissions from the Crown and you and approach it with an open mind”. I cannot accept that the Judge was in a position where he was unable to do that. Mr Kherbane confirms that this – consideration of the bail merits “with an open mind” – is what he was inviting the Judge to do in the afternoon. In my judgment, the Judge plainly recorded that was what he was going to do. And in my judgment, that is plainly what the Judge did do. In those circumstances, there was a limited traction to points about what had happened when “any applications” were invited earlier in the day; and about whether or not the Claimant was or was not presently still “on bail” when standing in the dock being arraigned after surrendering.

The Rojas case is illuminating, in my judgment. In particular, because of a material difference between that case in the present case. In Rojas at §22, Holman J emphasises that the judge at Snaresbrook had proceeded to say that the claimant was remanded in custody without giving “any opportunity at all” to the claimant or his advocate to advance any reasons “either before, or indeed after, announcing his decision as to bail”. It is described as “a serious error” for the judge simply to have stated that the claimant would be remanded in custody without first hearing submissions from his barrister. But then “it was an even more grave error when the barrister, who had clearly been taken by surprise, then indicated that the judge that he would seek to persuade the judge otherwise, and the judge simply said ‘no’”. The judgment goes on that it was legally insufficient then to give as a reason for no bail the inevitability of a custodial sentence. In my judgment, the present case is strikingly different. In this case, when the question of bail was brought to the Judge’s attention when he said the Claimant was remanded in custody, the Judge immediately made clear that he would deal with the bail merits, that he was in a position to do so, and that he would make a decision later in the day.