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

Fecha: 22-Sep-2025

Topic 2: The Afternoon

24.

The second part of the case then really focuses on the Judge’s ultimate decision at 5.07pm. By this time, the Judge had heard submissions on the legal points and about what had happened earlier in the day. He had been shown Rojas. He had been asked to consider the bail merits with an open mind. He had said that he was prepared to do so. He was addressed by the prosecution. The submissions made by the prosecution explained that the presumption in favour of bail was carried forward by operation of the statute, because of the deferral for a psychiatrist’s report. The prosecution informed the Judge that there had been no issues with the previous bail. Reference was made to the Claimant’s family circumstances. The court log says the prosecution was “neutral” on bail. Mr Kherbane said that this was a mistake and that the prosecution was in fact making positive points about the previous bail adherence. In my judgment, what really matters about that is that bail was not being opposed by the prosecution. That was made clear to the Judge.

25.

I pause to interpose that – after delivery of this judgment – Mr Kherbane has clarified that the word “neutral” was used at the hearing to describe the prosecution’s stance, but it was Mr Kherbane’s own description of the prosecution’s stance, rather than being a word used by Ms Kenyon. This serves to underline that there is no point of substance in the suggested mistake in the log.

26.

The Judge then heard bail merits submissions from the defence. It is rightly accepted by Mr Kherbane that sufficient time was permitted for the bail merits points to be ventilated and for him to say everything he wanted to say. The log records that those submissions were between 4.56pm and 5.07pm. They followed on from points that had been summarised earlier in the day. I am quite satisfied that there was no procedural unfairness or apparent predetermination in the process adopted by the judge during the afternoon sessions and that none of the indications and features of the case relied on come near to demonstrating the contrary. What is necessary is to turn to the substance.

27.

In his reasons for refusing bail, the Judge was saying ultimately this. Whereas the stringent electronically monitored curfew, which had been necessary but sufficient at earlier stages, had allayed the relevant concerns, the position was now materially different. The balance had now tipped the other way. As the Judge emphasised, the Claimant was now convicted, having pleaded guilty to the 3 offences committed in the circumstances described in the papers. That tipped the balance. The Judge’s ultimate assessment was his view that there were significant risks relevant both to committing further offences and to failing to surrender; and that those risks would not be allayed by continuing a package of bail conditions. In explaining his reasons, the Judge emphasised that what were now convictions involved a breach of a court order (Count 1), which reduced the confidence that the Court could have in compliance. He also emphasised communications from 2022, which he described as having arisen while the serious crime prevention order of January 2023 was “in prospect”. He identified these communications as linked to “the enterprise” which was the subject of Count 4, and the proximity to the serious crime prevention order as showing a relevant disregard for the court and any control it might exercise. The Judge regarded these features as relevant to the question, now looking forward, of release on conditional bail. The Judge referred to the long compliance record with the previous bail conditions, which he accepted. He referred to the community ties. He referred to the risks to the Claimant in prison, which had been emphasised, saying that that was primarily a matter for the prison authorities and indeed could constitute a disincentive to future surrender from the Claimant’s perspective. Finally, the Judge had in mind the exchanges relating to the prospect of an immediate custodial sentence from earlier in the day, the time now having come where the Claimant was facing the prospect of custody.

28.

On this part of the case, the essence of the claim is as follows. This was an unreasonable decision as to its outcome; and it was an unreasonable decision in any event as to reasoning process. In particular:

The Judge ignored the presumption in favour of granting bail. It had been identified correctly, in the prosecution’s submissions. The Judge had pushed back. As Ms Kenyon’s attendance note indicates, the Judge’s reasons linked the presumption to the previous releases on bail. That reflects the Judge rejecting its applicability now.

ii)

There were many flaws and illogicalities in the Judge’s reasoning. There had really been no change in circumstances of substance at all.

iii)

Count 1 had always been accepted to be a breach of the serious crime prevention order. By the time of the afternoon hearing, the Claimant’s “inadvertence” explanation in the written basis of plea was known not to be contested by the prosecution. That means the breach was not deliberate or calculated. That means it could not really make any difference of substance to the Court’s assessment of future confidence in compliance.

iv)

The Judge’s references to the previous electronically monitored curfew as being necessary ought not to have counted as a negative point at all. Rather, it was a positive point that was reassuring because it was part of a grant of bail with which the Claimant had complied.

The Judge clearly went wrong by relying on the 2022 communications having taken place when there was the “prospect” of a serious crime prevention order. Properly understood, those 2022 communications could have no relevance to the 2023 criminal offending which the Claimant was now admitting. They were all distinguishable.

vi)

The statutory test of substantial grounds was not really recognised by the Judge, or not properly applied. The Judge’s reasons were inadequate and simply stated conclusions and not underpinning reasoning. The Judge was already effectively committed to refusing or discontinuing bail for a legally incorrect reason, namely his perceived inevitability of custody.

vii)

So far as the Claimant’s criminal convictions in the past are concerned, and the serious crime prevention order, that was all within the very same background which lay behind a succession of judges being satisfied that bail was appropriate. These aspects could not make any difference. In any event, the Judge did not have a picture as to past convictions beyond the offence and sentence which was immediately linked to the serious crime prevention order.

viii)

The Claimant was a person who, for two years, had been fully compliant with all bail conditions. The police had no concerns. The prosecution were not opposing bail and had expressly recognised the presumption in its favour. The Claimant had faced up to his responsibility by voluntarily attending at court and admitting the offences. He had strong community ties and family members who were reliant heavily on him. In addition, there were the concerns about the impact for him of custody not least reflected in the invitation for the very psychiatrist’s report that the Judge had permitted be obtained, before proceeding to sentence.

ix)

The Judge was in no position to approach bail by reference to adopting or preferring the prosecution’s characterisation of the drug supply offence (Count 4). Indeed, the Judge ought in fairness to have been taking as his starting point the defence characterisation. The Judge was wrong to think that there was some new fact or new circumstances. There is nothing to be gained by considering the 2023 communications and their timing, not least since they did not form part of the Judge’s actual reasoning. These points are the essence of the basis on which it is said that the Judge acted unreasonably as to outcome and as to reasoning process.