Bail – Legitimate expectation – Reasonableness – Crown Prosecution Service

R (on the application of Burns) (claimant) v Woolwich Crown Court (defendant) & Crown Prosecution Service (interested party): DC (Lord Justice Aikens, Mr Justice Openshaw): 14 January 2010

The claimant (B) applied for judicial review of a decision of a Crown court to refuse him bail. B had been charged with offences of fraud, blackmail and possession of criminal property.

The charges arose from allegations that B with others had deceived a 76-year-old man into believing that his property was in urgent need of repair so as to obtain £140,000 from him. Of that sum, £25,000 was allegedly paid to B. B was arrested and questioned about a sum of £25,000 deposited in his bank account. B was also questioned about other sums deposited in his bank account about which he made no comment. The interested party CPS did not object to B and his co-accused being granted bail and a magistrates’ court granted them conditional bail.

At a later hearing before a Crown court, the court having been informed that B and his co-accused were on bail, a police officer gave sworn evidence as to B’s criminal record, indicating that it was intended that B would be arrested in respect of the other sums deposited in his account. The CPS purportedly did not seek to revoke B's bail but the Crown court having heard the police officer’s evidence indicated that it was minded to revoke bail and stated that it would consider the matter of bail later in the day. At that later hearing, the CPS did oppose the grant of bail. The Crown court held that the information as to B’s potential arrest, together with the evidence that it had heard, amounted to a change of circumstances and it was satisfied that there were substantial grounds for believing that B would commit further offences, interfere with witnesses, and fail to surrender if granted bail so that it was inappropriate to grant him bail. B contended that (1) the Crown court had not been entitled to look at bail afresh as there had been no relevant change in circumstances and no new relevant facts; (2) the Crown court’s decision was irrational; (3) the Crown court’s revocation of bail amounted to a frustration of his legitimate expectation that it would grant him bail as the CPS had not opposed the grant of bail up until the very end of the proceedings.

Held: (1) It was apparent that there had been a change of circumstances from when the magistrates’ court granted B bail and the hearing before the Crown court. Since B’s initial questioning an investigation had taken place and a decision had been taken to charge B with two new offences. The Crown court was therefore entitled to look at bail afresh.

(2) The decision of the Crown court to refuse bail for the reasons that it had given was rational and within reasonable bounds. Given what the Crown court had learnt from material, namely the police officer’s evidence, which was not before the magistrates’ court, it was reasonable for it to take the view that if the alleged offences had occurred they had occurred while B was on conditional discharge in respect of other offences. Accordingly, it was not unreasonable for it to have found that it was likely that B would commit further offences if granted bail, R (on the application of M) v Isleworth Crown Court [2005] EWHC 363 (Admin) applied.

(3) B could not have had any legitimate expectation that he would be granted bail. It was not for the CPS to give a defendant an expectation as to the grant of bail as bail was a matter for the courts and not the CPS.

Application refused.

John Cooper (instructed by Edward Fail Bradshaw & Waterson) for the claimant; no appearance or representation for the defendant; Gary Pons (instructed by the CPS) for the interested party.