Practice and Procedure


PUBLISHED July 14, 2003

Where a defendant breached bail by failing to appear in court it was incumbent on the judge to decide if the offence under s.6(1) Bail Act 1976 had been committed by seeking to ascertain whether there was "reasonable cause" for the breach, it was also questionable whether it was appropriate to impose a sentence of only two days' imprisonment.Appeal, with leave, if leave was required, of the single judge, against the finding of HH Judge Stone QC at Inner London Crown Court that the defendant ('H') breached bail and appeal against sentence of two days' imprisonment. H was on bail awaiting trial for burglary which was in the warned list. One of the conditions of bail was that H should attend court at least 30 minutes before the case was listed. The case was not listed in the first week but was listed at 10.30am on the Monday of the second week. H did not appear and the court waited for half an hour before starting. Counsel for H explained that the instructing solicitors could not say whether H had contacted them on the previous Friday. The matter was adjourned and H was contacted. The court was told that H had said he didn't know the case was being heard that day. No explanation could be given as to why he didn't know as he had strict instructions to phone the solicitors every night. The court sat again at 2.30pm with H present. H told the judge there had been a misunderstanding and he had not phoned the solicitor on Friday, he had made two abortive visits to the court the previous week and was under the impression the solicitor would phone him. The indictment was amended and H pleaded guilty to handling stolen goods, which the prosecution accepted. The case was then adjourned for the preparation of reports for sentence. The judge then dealt with the breach of bail stating he intended to deal with the matter summarily. H endeavoured to persuade the judge to take no action, however, the judge did not accede to the submissions. H appealed the finding of breach and the sentence imposed.HELD: (1) Like the single judge the court believed that an appeal lay as of right and permission to appeal was not necessary. (2) It was unsatisfactory for solicitors to tell a client to phone the night before to find out if their case was on the list the following day and then to have no procedure to follow it up if there was no phone call and no explanation why when the case was heard. (3) Under s.6(1) Bail Act 1976 the judge was entitled to deal with the matter summarily. Breaches of bail in circumstances like the present ones should be dealt with by a simple and straightforward procedure. However, both counsel and the judge overlooked the fact that an offence under s.6(1) of the Act was committed by someone who failed to surrender without "reasonable cause". It was incumbent on the judge, before deciding the appropriate penalty, to firstly decide whether any offence had been committed. (4) The issue of "reasonable cause" was left in the air. For some reason H thought he did not have to phone the solicitors on the Friday night. It might have been his error and it might have been he had no "reasonable cause". However, it was possible it was due to an error on the part of the solicitors. Counsel was in a position of conflict as he had H's interests to look after and it was also incumbent on him not to place the solicitors in a position where they were liable for something that was not their fault. (5) The judge should have put to H whether or not he admitted breach of s.6(1) of the Act. The matter became confused as H's submissions were directed to mitigation rather than liability. (6) Whilst s.6(1) offences were designed to be dealt with by a relatively simple procedure authorities such as R v Seaton & Ors 1986 8 Cr App R (S) 64 and R v Boyle 1993 CLR 40 showed the correct procedure was to let a defendant explain himself. As that procedure was not followed the conviction and sentence must be set aside. (7) In observation the question had to be asked whether it was appropriate to impose a sentence of two days' imprisonment following a proper conviction under s.6(1) of the Act. Section 132 Magistrates' Court Act 1980 expressly prohibited magistrates from imposing any sentence less than five days. On the face of it that ought to apply in practice to the Crown Court. It was hard to see any justification in imposing such a short sentence.Appeal allowed.