28 SEPT 2004

No bail. no appeal, no justice? - Henry Milner

WHAT is the common link between a Crown Court judge refusing bail and a football referee rejecting a penalty claim? Answer: neither of their decisions can be appealed against.

To those criminal defence lawyers who have passed their summer in splendid isolation filling out their white forms on the beaches of Sardinia and in the villas of Tuscany (where supplements to Archbold are in no great demand) I bring sad and startling tidings of yet one more erosion of your clients' rights. Since April you can no longer appeal a bail refusal from the Crown Court to a High Court judge. Great tales of freedom from the "Bear Garden" in the High Court will soon be a distant memory. Now you will have to reapply to the same Crown Court (and probably the same judge) who did not think much of your application in the first place. You don't fancy your chances? Nor do I.

How many decisions of a Crown Court judge is a defendant not able to appeal? I can think of only two. The first is the refusal of a costs order in favour of a victorious defendant; and the second, the right to appeal the refusal of bail to the High Court. So what is the reasoning behind the scene? To find the answer I revert to the football referee analogy. Why not have a video replay of every marginal decision during the game at the election of a disgruntled player? It would slow down the game and be too expensive and complicated to monitor. Similarly with the limited number of High Court judges at full stretch and the drive towards economy something had to give - so why not the right to bail? "He's probably guilty anyway, and a year or so on remand will do wonders for his waistline - and besides, what's wrong with our Crown Court judges?"

I'll tell you "what's wrong"; and it is not necessarily the judges' fault but the new system. Supposing you cannot show a real change in circumstances, do you really expect a Crown Court judge to reverse his own decision? Is it right that the view of one mortal should keep another in custody before trial with no right of appeal? Even if you are lucky enough to draw a different judge at the same Crown Court on your second application, is he not bound to be seriously prejudiced by his fellow judge's refusal?

To highlight the point, here is a short story from real life. A few years ago I defended a man in his late fifties on a very serious allegation of being involved in an enormous attempted armed robbery. The evidence against him was by no means overwhelming. He had a grave heart problem that required an angioplasty, but as "printed in your programme" the police objected to bail with an exaggerated concern that he might retire to the Amazon taking his family and heart condition with him, despite more than £1 million securities, including his home. He had been visited in prison by a Harley Street specialist who twice gave evidence in bail applications at the Old Bailey on his behalf - both times to no avail.

The first appeal to the High Court was refused, and so he languished for five months in the prison Category A wing. One night, locked in his cell alone, he thought that he was having a heart attack and pressed the emergency button. No one came - no one apparently cared - at least for about 30 minutes. Fortunately, he survived. Still the Old Bailey judge remained unimpressed by what must by now have been his fifth application to that court for bail. Finally, after the man had spent six months in custody, a more broad-minded High Court judge gave him bail. On the first day of his trial (about nine months later) the prosecution surprised us all and offered no evidence.

By attending his trial he proved that the Old Bailey judges on five occasions had come to the wrong decision. This was eventually corrected only by there being in place an appeal system. Supposing he had absconded? Where there are very high sureties, this occurs extremely rarely. When it does, let the High Court judge take the blame, rather than a sick man being incarcerated for month after month without his having the right to bring his case for bail before a senior judge.

On the bright side "it's an ill wind indeed that blows no good". At least we will no longer have to suffer a Crown Court judge, when refusing bail, purging his soul by trotting out the weary old chestnut: "If I have got it wrong it will be corrected elsewhere." Unless he too has spent his summer months in blissful ignorance under the Tuscan sun - a somewhat more desirable residence than the Category A wing at Belmarsh prison.

The author is a solicitor and higher courts advocate