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

As I see it, there are really two topics that I need to address in the light of the submissions that have been made in support of this claim for judicial review. The first topic relates to the Judge’s response on 22 September 2025 at the end of the first of the five occasions during the day that the Judge was considering the Claimant’s case: ie. 10.06am to 10.28am. What happened was this. After the Claimant’s rearraigment and his three pleas of guilty had been entered and he stood convicted of the 3 offences (Counts 1, 4 and 5), the advocates addressed the Judge. They addressed him in relation to the envisaged basis of plea. They addressed him specifically in relation to their positions on the correct categorisation of Count 4. An application was then made by the defence for the pre-sentence report, which was refused. An application was made by the defence to have deferral of sentence for the psychiatrist’s report, which in the event was granted. The position, by then, was that the case was being put back in the list to come on later in the day, so that the Judge could be updated as to the basis of plea.

It was at that point – at 10.26am – that the court log records that the Claimant was “RIC” (remanded in custody), on the basis that “custody is inevitable”. The composite note says, and Mr Kherbane emphasises, that the judge said words to the effect of “take Mr Freckleton down”. At that point Mr Kherbane stood and there was an exchange about bail. Mr Kherbane outlined the basis on which the court was being asked to continue bail. As the composite note records, the Judge “said he could hear a bail application in the afternoon, however Mr Freckleton was now remanded in custody”. I accept that the Judge was at that point making a decision, to remand the Claimant in custody, at least for the time being. He was, however, doing so with a view to hearing submissions on the bail merits later in the day. An earlier exchange, immediately after the Judge said “take Mr Freckleton down” is recorded in the composite note as follows: “Defence counsel stated Mr Freckleton was on bail and there had been no reconsideration of the issue of bail. The Judge responded to the effect of ‘He was on bail, now he is in custody’”. Mr Kherbane told me that what he said was: “Mr Freckleton is on bail”. In my judgment, the Judge’s response (“he was on bail, now he is in custody”) plainly reflects the legal analysis, which the judge described later in the day, about the surrender. Whether that was right or wrong in law, it was the Judge’s position. As I have said, I accept that the Judge at that point made a decision that the Claimant should be remanded in custody.

On this first part of the case, the Claimant’s position in essence, as I see it, is as follows. Everything unravelled legally at 10.26am and became incurable after that. The Judge acted procedurally fairly, because he proceeded to withhold bail and remand in custody, without giving any opportunity for bail representations to be heard, from the Claimant’s team and from the prosecution; and without giving any reasons (s.5(3)). That was unfair and unlawful, in just the way as were the crown court judge’s actions in the Rojas case. The Judge later confirmed that he earlier made a decision to remand in custody, and that was based on a view about the inevitability of a custodial sentence. The consequence of this unfairness was to vitiate everything that happened during the rest of the day. It meant there was a predetermination on the part of the Judge, or at least in apparent predetermination. It meant he could not fairly and lawfully decide the question of the bail merits later in the day. Fairness could not be secured because of the principle in R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4649 at §60, that it is generally necessary to hear representations prior to a decision being taken, and not only after the decision has already been taken. Whatever the Judge thought, and even if (as he later said) he thought had had asked at the outset whether there were “any applications”, he needed in fairness to raise the question of bail and hear representations before making any decision about remand: see Rojas. In fact, it was obvious from what happened that his invitation to make “any applications” was focused – or understood by the advocates to be focused – on applications relevant to sentencing. So, this Court needs to quash as unfair the Judge’s decision at 10.26am. This Court should grant the remedy of substituting a grant of bail, on the basis of all the information that the Court has today. Or this Court should quash the decision with the consequence that the question of bail will go back for consideration afresh in the crown court, as it did in W. It is no answer to suggest it is “highly likely” that the outcome would not have been “substantially different”, where the process was so unfair, where the Court should not speculate as to what the decision would or would not have been. It might well, after a fair process, have been to grant bail. In any event fairness has a value recognised by the law that is not fixated on substantive outcome. It involves delivering something much more fundamental. That can only happen if judicial review Courts grant claims where unfairness is established.