Courtney Freckleton, R (on the application of) v Kingston Crown Court

FORDHAM J: Introduction

1. This is an urgent rolled up hearing in judicial review proceedings. The case is all about the lawfulness in public law terms of the response of HHJ Heptonstall (“the Judge”) in the Crown Court at Kingston in the morning and then later in the afternoon of 22 September 2025. Lawfulness in public law terms embraces unlawfulness, unreasonableness and procedural unfairness. I accept that this is conventional judicial review on which all such grounds are available. By having urgent rolled up hearing we avoided the unsatisfactory alternative of trying to deal with a case like this on the basis of interim relief.

2. The Crown Court has taken a passive role, consistently with the principle of neutrality applicable to defendant courts (as to which I interpose: see The Father v Worcestershire County Council [2025] UKSC 1 at 71ii). The Crown Prosecution Service has stepped in as Interested Party. It has made some written and oral submissions through Counsel Ms Millar. It has also provided the Court with some materials. I agree with Mr Kherbane that the duty of candour applies to an Interested Party and even at the permission stage. He recognises that there has been no failure of compliance with that duty by the Interested Party in this case.

3. The Claimant is aged 35. As a result of the impugned actions of the Judge, the Claimant went on 22 September 2025 from being on bail, as he had been for some 2 years, to being remanded in custody. He was in custody, first of all, during the day. And then when he left the court at the end of the court day. That day had originally been the listed trial date for the criminal proceedings involving the Claimant. At the start of the day the Claimant pleaded guilty to 3 of 5 counts on an indictment. As a result, he stood convicted of those 3 offences. But sentencing was not proceeding on the same day. In particular, that was because of a deferral for a psychiatric report which the Claimant’s legal team wanted to obtain. There was some other moving parts to which I will return. Indictment

4. The five-count indictment involved 3 counts of failing to comply with a serious crime prevention order. The first failure related to an unnotified change of address (Count 1), the second related to an unregistered mobile phone (Count 2). The third related to an unregistered laptop (Count 3). Count 4 on the indictment was being concerned in the supply of a Class B drug cannabis to another. The timeframe for all 4 of those counts was between 1 August 2023 and 16 November 2023.

5. The very fact of Counts 1 to 3 indicated clearly that the Claimant had had previous interactions with the criminal process. The serious crime prevention order, which features in those counts, had been put in place. Mr Kherbane, who appeared before the Judge, tells me that the Judge did not have visibility as to the Claimant’s previous convictions. Apart from being aware that there were previous convictions, the Judge did know about a custodial sentence of 28 months for a 2021 conspiracy to import cannabis and transfer criminal property. That conviction had been the setting for the imposition in January 2023 of the serious crime prevention order. The Judge was also aware that that order had been in force during the indictment period, namely August 2023 through November 2023. I will interpose that I have fuller information from the parties. It includes that the Claimant committed a 2013 offence of possession with intent to supply, which had led to an 18 month custody custodial sentence. I also have information about the licence period relating to the 28 month custodial sentence in respect of the 2021 conspiracy. The information before this Court is that the licence period ended on 4 October 2023. That means some of the indictment period was within it and some of the period was outside it.

6. A fifth Count on the Indictment had a specific date 15 November 2023. It was possession of Class B cannabis. A detailed Opening Note had been provided by the prosecution in the run up to what was going to be the trial. It was dated 15 September 2025. Both Mr Kherbane and Ms Millar have taken me to it. The Claimant had been encountered at Heathrow on 15 November 2023 and found with keys and devices. That was the background to the 5 count indictment. He had entered “not guilty” pleas to all 5 Counts. Mr Kherbane submits, and I accept, that the Claimant’s position on Count 1 had been to contest whether there was a “reasonable excuse” for the non-notification of a change of address. That was in the context of a serious crime prevention order which expressly stated that it was enough for the Claimant to be in possession of keys for a new address. Mr Kherbane says it was never in dispute that the unnotified address was a “breach” of the serious crime prevention order, subject to the question of “excusability”. Bail

7. The Claimant had been released on bail back on 17 November 2023. Since then, for the most part, there was in place an electronically monitored curfew with strict conditions. These were linked to a residential address. The address changed over time and led to variations in the bail conditions. There were also, at some specific points in the chronology, periods when the electronically monitored curfew was temporarily lifted on relevant conditions. This was linked to the Claimant’s work and activities as a musician. On occasion, it permitted his travel abroad. There was a long sequence of notices of bail and varied bail, all of which I have seen. They record the bail conditions and the upcoming hearing dates at which the Claimant was being required to attend the crown court. He faithfully complied with the bail conditions, throughout the entirety of the relevant periods. That included a PTPH hearing on 15 December 2023 and pre-trial review hearings on 21 October 2024 and then 26 and 28 August 2025. On each of those occasions there was the re-admittance of the Claimant to bail and then the issuing of new bail notices. Conviction

8. In the run up to the trial on 22 September 2025, it was indicated that the Claimant was going to plead guilty and that it was unlikely that a trial would be needed. He duly voluntarily attended, in accordance with his bail conditions, on 22 September 2025. He was taken into the dock. At his request, he was rearraigned. He pleaded guilty to Counts 1, 4 and 5. Counts 2 and 3 (the mobile phone and laptop) were intended to lie on the file, meaning the prosecution did not proceed with those Counts. Questions Arising

9. A number of questions arose. There were questions about whether the Judge could proceed to sentence the Claimant on the day, or whether sentencing ought to be deferred. The Claimant’s legal team made an application requesting a pre-sentence report. That was declined by the Judge on the basis of the view that immediate custody was inevitable. The defence team also asked for time to get a psychiatric report. The Judge agreed that this would be an appropriate course. It follows, for that reason alone, that sentencing was not going to take place on 22 September 2025. It would have to be at a later date. There was also an important set of questions about the factual basis on which the Claimant would be sentenced, in circumstances where there had been a trial. The defence team indicated that they were preparing a “basis of plea” document. In the event, that was available by lunchtime. The prosecution was able to respond to it and did so. There was, in light of the difference of the positions of prosecution and defence, the clear prospect of a Newton hearing to make findings as to relevant facts, which remained in prospect at 2.15pm in the afternoon when the case was called back on for a third time. The Judge had been told earlier in the day (at 10.15am) that the prosecution and the defence had very different positions on how Count 4 was to be categorised for the purposes of the Sentencing Guidelines. The prosecution’s position was Category 3/ Leading role. That category has a starting point of 4 years custody and a sentencing range up to 5 years custody. The defence’s position was that it was Category 4/ Significant Role. That has a starting point of a high-level community order and a range up to 26 weeks custody. One of the features of the case described in the prosecution’s Opening Note was a series of communications, which the prosecution was saying were relevant to Count 4. These communications came from 2022 and also from 2023.

10. All of that left the important question of bail. In fact there were two distinct questions relating to bail. One was a question about where the Claimant was going to go that night, from court, and be during the period up to his sentencing hearing. Was he going to go back home under bail conditions? Or was he going to a prison, on remand? That was the first question. There was another question. It was about where he was going to be during the court day on 22 September 2025. What was he going to be within the court building, waiting with his lawyers, able to discuss his case in a meeting room? Or was he going to be taken to the cells in the court building, where he would need to wait and be visited? No Transcript

11. I accept that industrious attempts have been made, on all sides, to try and equip this Court today with a transcript of what exactly was, and was not, said at the various hearings that are recorded in the hearing event log on 22 September 2025. According to the log, the case was called on before the Judge at the following times during the day: (1) 10.06am to 10.28am; (2) 1.08pm to 1.10pm; (3) 2.08pm to 2.18pm; (4) 3.43pm to 3.52pm; and (5) 4.41pm to 5.21pm. But those attempts have been fruitless. I have seen an email from the relevant person within the court system which says that, after searching for the tape, they have been unable to locate it. I canvassed with the parties, ahead of today’s hearing, whether there was anything that I should be doing as the judicial review Judge, to try and at least be able to listen to the tape if possible. But the parties accepted, based on the email, that the trail for a tape and transcript was unfortunately at an end.

12. I do have the court log to which I have referred. I am aware of the aspects of that log that are said by Mr Kherbane to be incomplete, and one log entry which he told me was incorrect. I have an attendance note from Ms Kenyon. She was prosecution counsel in the criminal proceedings but not in these judicial review proceedings. I also have a composite note, based largely on Ms Kenyon’s attendance note but also from the notes of the defence team. Ms Kenyon has confirmed that she does not take issue factually with what is in that composite note and would agree that the position set out in that note accords with her recollection. That does not mean Ms Kenyon is saying that there was anything incorrect in her first attendance note. I have been assisted by both advocates – Mr Kherbane and Ms Millar – by reference to all of those materials. I am satisfied that I can fairly determine this claim for judicial review without needing to face the prospect of any adjournment to try and get any further or other information. I do not need to hear oral evidence from anyone. I can fairly and properly determine the case on the basis of what I have got and read, and the submissions that have been made very helpfully by the parties about it. Section 29(3)

13. There is a part-ouster of judicial review in relation to claims against the Crown Court – in s.29(3) of the Senior Courts Act 1981 – but nobody says that I lack jurisdiction in the present case. My attention has been invited to a number of cases where there are judicial review challenges to crown court decisions relating to bail. The most recent is R (W) v Croydon Crown Court [2024] EWHC 3373 (Admin) , where the Court specifically addresses the part-ouster. This claim is not cutting across the conduct of any trial on indictment. There was no trial. It is not cutting across the outcome – such as conviction or sentence – or any appeal rights or limitations in relation to trial outcome. I accept the judicial review is available. And, as I said at the beginning, I accept that all of the conventional judicial review grounds are open to the Claimant. The Bail Act 1974

14. Reference has been made to the Bail Act, for a number of purposes. There is the statutory duty to give reasons for “withholding” bail: s.5(3). There is the presumption in favour of bail (s.4), which carries forward where a defendant’s case is adjourned for enquiries or reports: s.4(4) and (6). There is the statutory duty to consider bail at each hearing (Sch 1 Part IIA §1), which Mr Kherbane maintains is a duty applicable irrespective of whether the starting point is that a person is or is not on bail. Ms Millar disagrees, and points to the opening words of §1 which refer to where bail has first been refused. Then there is the familiar statutory test (Sch 1 Part 1 §2) framing the question whether a court is “satisfied that there are substantial grounds for believing” that the defendant if released on conditional bail would “fail to surrender to custody” or “commit an offence on bail”. That provision has also attracted disagreement. Mr Kherbane says it applies in all cases whether the presumption in favour of bail applies. Ms Millar submits by reference to s.4 that it is the destination only where the presumption applies. Finally, I am aware of the statutorily listed factors (Sch 1 Part 1 §9). In the end, I am satisfied that nothing turns on the rights and wrongs of the points that have been contested between Counsel today as to aspects of the statutory scheme (ie. Sch 1 Part IIA §1 and Sch 1 Part 1 §2). Surrender

15. I am also satisfied, in the end, that nothing turns on Counsel’s disagreement on another legal point. It concerns the Judge’s analysis of the position on the morning of 22 September 2025, when the Claimant in this case stepped into the dock prior to being rearraigned. It is clear from the composite note that in the afternoon the Judge expressed this view: “He said that, in his view as at 10.26 this morning, Mr Freckleton had surrendered to the custody of the court and was not on bail”. Ms Millar says that is exactly right as a matter of law. Mr Kherbane hotly disputes that proposition. He says that surrender does not mean that the defendant is then in the “custody of the court”. It is fair to say that neither Counsel have showed me any passage or commentary which directly supports them on that point of disagreement. I also record that Mr Kherbane does not accept that the “view” that the Judge was expressing in the afternoon on the surrender point was a view that the Judge had necessarily held earlier in the day. Supervisory Jurisdiction

16. To complete the legal picture, before I turn to the claim, there is this. There was a time when the High Court had a jurisdiction where it would consider for itself – afresh – the bail merits after bail had been refused or withheld in the Crown Court. As all the cases in this area record, that course was abolished by Parliament in 2004, by virtue of s.17 of the Criminal Justice Act 2003 . But that abolition of the merits jurisdiction left the supervisory judicial review jurisdiction intact. This is explained in W at §22. That case and the earlier cases describe the judicial review Court’s supervisory jurisdiction. So, for example, R (Iqbal) v Canterbury Crown Court [2020] EWHC 452 (Admin) addresses reasonableness review. And R (Rojas) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin) addresses procedural unfairness. An example of a case where previous grants of bail turned into withdrawn bail, which was successfully challenged is R (Fergus) v Southampton Crown Court [2008] EWHC 3273 (Admin) (discussed in Rojas at §27). In Fergus at §§20-21 the Court described considerations relevant to reasonableness and also to legally adequate reasons. Topic 1: The Morning

17. 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.

18. 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.

19. 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. Discussion

20. 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.

21. 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.

22. 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.

23. 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. 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: i) 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. v) 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. Discussion

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

37. 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. Outcome

38. The outcome of the case is that I have granted permission for judicial review on all grounds. But, for the reasons I have given, I will dismiss the substantive claim. Costs

39. The only consequential matter for me to deal with is the question of costs. The Interested Party has made an application for its costs. The Claimant resists that order, whose fairness, reasonableness and proportionality are all contested. Mr Kherbane emphasises, in particular, that the Interested Party was understood to have adopted a neutral position; that most of the work that needed to be done was in trying to present this Court with the clearest possible picture; and that this is in circumstances where no transcript could in the event be obtained by the Claimant, despite all endeavours. I have decided to make no order as to costs. One thing I have reflected on is what would have happened if the case had gone the other way: I would not have awarded the Claimant his costs from the Interested Party. It was entirely appropriate for the Interested Party to appear, to assist the Court today. The Court is grateful that it did so. But it would have been possible for the Interested Party simply to provide materials, if it had wished to take that course. The claim has not been aggressively defended by it. The Court has been able to address the substance by focusing on the main on the points being advanced by the claim. Stepping back and considering the justice of the case in the round, I have been persuaded by Mr Kherbane that the fairest course is simply to say no order as to costs. That will be my order.