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

I accept that this part of the claim is arguable and I grant permission for judicial review. But, having given this case her a full morning of court time, having read all the submissions made and listened to the points that have helpfully been advanced on behalf of the Claimant, I cannot agree that the Judge reached a decision on the bail merits that was unreasonable as to its outcome or unreasonable as to his reasoning process.

The Judge was clearly focused on the substantial grounds test within the statutory scheme (Sch 1 Part 1 §2). In my judgment, the most obvious reason for that was that he was recognising the presumption in favour of bail, which the prosecution had specifically accepted still applied in this case. There is, in my judgment, no part of the Judge’s reasoning – including the reference in Ms Kenyon’s attendance note to the presumption as having applied to earlier bail decisions – which constitutes any misdirection on the part of the Judge. I cannot agree that the presumption was ignored by the Judge.

In my judgment, what the Judge was doing was making an objective evaluative decision. He was assessing risk, in light of the circumstances as they stood before him. In my judgment, that was precisely what he was required to do. I have already said that I am satisfied that he considered the matter fairly and with an open mind, on its merits. The decision did not rest on the assessment of inevitability of custody. In my judgment, legally adequate reasons were given by the Judge. The question for me is not whether I would have granted bail. The question is the supervisory review question of whether this was a reasonable response, with a reasonable reasoning process.

The Judge fully recognised the Claimant’s previous compliance, the period of that compliance, the family ties and the Claimant’s actions in voluntarily attending and pleading guilty. So far as the previous electronically monitored curfew conditions are concerned, in my judgment it was a fair point for the Judge to make, when explaining that there were now circumstances that tipped the balance. By saying that on previous occasions strict conditions of bail had been required, that was not a basis now for refusing bail. The basis for refusing bail was the change which, in the Judge’s assessment tipped the balance.

So far as concerns Count 1 and the basis of plea – and the “inadvertence” in not notifying the new accommodation – the Judge had that point because it was made by Mr Kherbane. As is recorded, the Judge had just heard it. Nevertheless, the Judge had to put alongside the fact that what had previously been denied as a criminal offence had now been accepted at a criminal offence. It was a breach of a serious crime prevention order which the court had previously made. Moreover, it was a breach which was now accepted not to have had any “reasonable excuse”. The conviction for that inexcusable breach, in my judgment, was plainly relevant as an objective factor when the Judge was coming to assess risks, looking forward, in relation to making an order with conditions.

So far as the time period of communications is concerned, and the Judge’s reference to communications in 2022, there are in my judgment two answers to that. First, it is impossible to characterise as unreasonable the Judge’s view that those communications featured as relevant background as to the Count 4 “enterprise”. The Judge was not making findings of fact. But he was noting a temporal link. I cannot accept that the only reasonable course was to put the 2022 communications entirely to one side. But the second answer is this. In my judgment, it is irresistible. If it is right that the 2022 communications should be put to one side, because the focus should be on the conduct constituting the Count 4 course of offending, then logically the new focus lands at the 2023 communications as being directly relevant. Those were the actions that constituted the crime, within the time frame of the indictment. At the time of the 2023 communications, a serious crime prevention order was not in contemplation (a “prospect”). Instead, it was in place. That means that the directly relevant course of conduct in the “enterprise”, which the Claimant undertook and which constituted the Count 4 offence, had taken place at the time when a serious crime prevention order had been made by the court. And what had previously been denied, by an individual who was saying they had committed no crime, was now accepted as constituting the Count 4 criminal offence. In my judgment it impossible to say that there was no relevant change in circumstance. And, in my judgment, the attempt to distinguish between the 2022 and 2023 communications cannot assist the Claimant, when assessing the reasonableness of this decision. The 2023 criminal conduct, of which the Claimant now stood convicted, was while the serious crime preventing order was in place, rather than in “prospect”. That is plainly relevant to the very point that the Judge was making about confidence and reduced confidence when it comes to compliance. It is relevant to the point he was making about the enterprise between the Claimant and the other named individual, and whether it showed a disregard for orders of the court.

I add this. Whether or not the judge was aware of it, as I indicated earlier, there was also in fact the licence period which ran to 4 October 2023. Therefore, the criminal offence of which the Claimant now stood convicted – which he had previously been denying – involved a course of conduct which could fairly be seen against the serious crime prevention order, but also – for part of the time – licence conditions.

The Judge was very well aware that bail was not opposed by the police and that it was not opposed by the prosecution. But the Judge was entitled, acting lawfully, to consider for himself the question of the bail merits. That is what he did. He put all of the points alongside what he knew about the context for the sentencing stage that was to follow. He knew about the different prospects depending on the prosecution’s characterisation and the defence’s characterisation.

There was, in my judgment, nothing unreasonable in the Judge coming to the ultimate evaluative conclusion that he did. It was adverse by reference to further offending and future failure to surrender. Nor, in my judgment, was there any legal inadequacy in the reasons or unreasonableness in the reasoning process.