How do you prove after having made a successful bail application to the Crown Court, that your client has been granted bail? The answer, rather unbelievably, is ‘with great difficulty’. In other jurisdictions, such as the Magistrates Courts or the Immigration Tribunal, once you have made a successful bail application, the relevant Court fax the legal representatives and sureties (if applicable) a copy of the grant of bail, which clearly stipulate the conditions attached to the bail, if any. Therefore all parties involved are not only aware of the outcome but any ambiguities can be addressed before the client is released on bail.
The Public Law team have had to deal with the predictable results of this lacuna on a surprisingly regular basis. In a recent case a client was returned to a Young Offenders Institution, having been granted bail by the Crown Court.
The client told the YOI that he had been granted bail, and they tried to check this. Unfortunately the Court Clerk refused to confirm to the YOI that the client had been granted bail, and instead incorrectly informed them by telephone that it was a condition of the bail for the passport of the client to be surrendered - despite the Court having been informed, and accepted, during the course of the bail application that the client’s passport was with the UK Border Agency and therefore outside of his control. This error also stems from the lack of a written Order stipulating the terms of the Grant of bail, which the clerk could have checked. It was impossible to immediately prove our client’s contention as no official document detailing any grant of bail or conditions that were to be attached had been provided to the client or us.
The Young Offenders Institution were unable to the release the client until they were sure of the terms of his bail. In this instance, this led to the client’s unlawful detention and a Habeas Corpus application being swiftly drafted.
It is perplexing that it is accepted by criminal lawyers as ‘normal’ not to receive an official document from the Court confirming the refusal or grant of bail with the conditions attached. To alter this procedure and to bring it in line with the processes involved with the jurisdictions of other courts, seems effective, logical and ultimately will save costs for both the Court and more importantly solicitors. At a time when costs are being squeezed even further it seems ridiculous to make a Habeas Corpus application when all it would take is a fax to the representatives confirming a grant of bail and the relevant conditions attached.
Duncan Lewis is seeking to challenge this current procedure, and at the very least a change to the court’s procedures is certainly needed to avoid the incarceration of young persons, such as this client, with no lawful authority.
Please contact the Public Law Team if this issue arises in your case.