REGINA
v.
CENTRAL CRIMINAL COURT, (APPELLANTS)
EX PARTE GUNEY (RESPONDENT)
ON 9TH MAY 1996
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Slynn of Hadley
Lord Steyn
Lord Hoffmann
LORD GOFF OF CHIEVELEY
My Lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Steyn. For the reasons he gives I too would
dismiss this appeal.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of reading in draft the speech of my noble
and learned friend. Lord Steyn. For the reasons he gives I too would dismiss
this appeal.
LORD SLYNN OF HADLEY
My Lords.
For the reasons given in the speech prepared by my noble and learned
friend, Lord Steyn, I too would dismiss this appeal.
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LORD STEYN
My Lords,
My Lords, on this appeal the general question of law arises whether
a defendant on bail, who is under a duty to surrender to the custody of the
court but neglects to do so before arraignment, does so by operation of law
upon his formal arraignment.
Mr. Nadir and Mr. Guney
On 16 December 1990 Mr. Asil Nadir was charged with a number of
offences of theft and false accounting. On 17 December 1990 the Bow Street
Magistrates’ Court remanded Mr. Nadir on bail. The conditions of his bail
included provisions that Mr. Nadir had to deposit £2m.; that he had to provide
five sureties in the sum of £1.5m.; and that he had to live and sleep at a
London address. Mr. Nadir was admitted to bail. The grant of bail was
continuous so long as the proceedings remained in the magistrates court, and
extended until Mr. Nadir first surrendered to the custody of the Crown Court.
On 28 January 1991 Mr. Ramadan Guney signed a form of
recognisance for sureties in criminal cases. It bore the heading of the Bow
Street Magistrates’ Court. It described Mr. Nadir as the accused, and Mr.
Guney as the surety. The form read as follows:
“I acknowledge my obligation to pay the court the sum specified
opposite my signature if the accused fails to surrender to the custody
of the above-named court [Bow Street Magistrates’ Court] on 23 April
1991 at 2 p.m.; and custody at every time and place to which during
the course of the proceedings the hearing may from time to time be
adjourned; and custody of the Crown Court on such day and at such
time and place as may be notified to the accused by the appropriate
officer of that court.”
Mr. Guney signed the form opposite the figure of £lm. By his recognisance
Mr. Guney undertook the obligation to ensure that Mr. Nadir surrendered to
the custody of the court when required to do so. If Mr. Nadir did so, Mr.
Guney ceased to be bound by his recognisance.
On 25 October 1991, after Mr. Nadir had been charged with further
offences, Bow Street Magistrates’ Court wrote to Mr. Guney to inquire as to
his willingness to continue to act as surety. On 1 November 1991 Mr. Guney
confirmed his willingness to continue as surety.
In February 1992 the prosecution decided to use the special procedures
introduced by the Criminal Justice Act 1987 for the management of serious
fraud cases. On 7 February 1992 the charges against Mr. Nadir were
transferred to the Central Criminal Court. Under the Act of 1987 there was
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no need for committal proceedings. The proceedings against Mr. Nadir were
assigned to Tucker J. On 28 February 1992, and at the Central Criminal
Court, Tucker J. held a preliminary hearing. Mr. Nadir and his advisers were
present. The judge fixed 22 June 1992 as the date of the first “preparatory
hearing” under the provisions of section 7 of the Act of 1987. It was common
ground on the appeal to your Lordships’ House that Mr. Nadir was required
to surrender to the custody of the court on 22 June 1992.
On 22 June 1992 the preparatory hearing was held at Chichester Rents,
That building has no cells. It also has no custody area set aside for persons
surrendering to bail to report to an official or a particular office. The
courtroom has no dock. Mr. Nadir, accompanied by his advisers, was present
throughout the preparatory hearing. After some preliminary exchanges the
judge said that the preparatory hearing would start. He asked Mr. Nadir to
stand up. The arraignment commenced. The counts in the indictment were
then put to Mr. Nadir. He pleaded not guilty to them. At no stage during the
preparatory hearing was any reference made to Mr. Nadir’s bail. The fact
that Mr. Guney was not present to agree to any extension of his recognisance
caused counsel for the prosecution and counsel for Mr. Nadir to agree that it
was not necessary for Mr. Nadir to surrender to the custody of the court on
that occasion. Both counsel bona fide believed that their agreement effectively
kept Mr. Guney’s recognisance in force. Tucker J. was not informed of this
arrangement.
Subsequent events do not affect the outcome of the appeal and can be
summarised briefly. Further preparatory hearings were held on 7 September
and 14 to 17 December 1992. On the latter occasion Mr. Nadir sought, and
was refused, a variation of his bail conditions in order to enable him to visit
Northern Cyprus. At the end of April 1993 Mr. Guney took steps to
withdraw his recognisance, but he abandoned his application before it was
considered by the court. On 4 May 1993 Mr. Nadir fled the country. He
went to Northern Cyprus. He has been a fugitive from justice ever since.
The proceedings before Tucker J., in the Divisional Conn and in the Court of
Appeal
Mr. Guney was called upon to show cause why he should not forfeit
£lm. Tucker J. ruled that in view of the agreement between counsel that Mr.
Nadir should not surrender to his bail on 22 June he must be regarded as not
having surrendered to bail on that occasion. Tucker J. also added, for what
it was worth, that he never regarded Mr. Nadir as having surrendered to his
custody. The judge ordered that Mr. Guney should forfeit £650,000 and that
in default of payment within six months Mr. Guney should serve two years’
imprisonment. Mr. Guney applied for judicial review. The principal issue
was whether by virtue of his arraignment Mr. Nadir had surrendered to
custody. Giving the judgment of the Divisional Court of the Queen’s Bench
Division Ralph Gibson L.J. ruled that it was possible in law for an
arraignment to take place without surrender of the defendant to the custody of
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the court, and he ruled that that is what happened in this case: Regina v.
Central Criminal Court, Ex parte Guney [1994] 1 W.L.R. 438, 447c – 448F.
The application for judicial review was dismissed.
Mr. Guney appealed. In the Court of Appeal there was a difference
of opinion between the members of the court on the central question: Regina
v. Central Criminal Court, Ex parte Guney [1995] 1 W.L.R. 576. In
agreement with the Divisional Court Sir Thomas Bingham. M.R. held that
there is nothing in the process of arraignment which in law requires, or in fact
amounts to, a surrender to the custody of the court: at p. 584 A – G. The
majority thought differently. Peter Gibson L.J. concluded, at 590 H:
“In my judgment a surrender to the custody of the court occurs when
a defendant on bail and under a duty so to surrender is required to
attend the court and responds by attending the court and overtly
subjecting himself to the directions of the court. This he does at the
latest when he is arraigned at the commencement of the trial, but he
may do so earlier. . . . ‘
Sir Michael Mann agreed with Peter Gibson L.J., and said: “Arraignment
provides a clearly identifiable moment of surrender (which may, however, in
some cases occur earlier):” see p. 588c.
Before I turn directly to the issues arising on this appeal, it is
necessary briefly to explain the statutory framework. In granting bail and
taking Mr. Guney’s recognisance the magistrates’ court was validly exercising
powers conferred by section 3 of the Bail Act 1946 and section 128 of the
Magistrates’ Courts Act 1980. Section 3 of the Bail Act 1976 provides that
a person granted bail in criminal proceedings shall be under a duty to
surrender to custody, and that the duty is enforceable in accordance with
section 6 of the Act. Section 2(2) provides that “surrender to custody” means,
in relation to a person released on bail, “surrendering himself into the custody
of the court … at the time and place for the time being appointed for him
to do so.” The critical hearing in the present case was a preparatory hearing
under section 7 (1) of the Criminal Justice Act 1987, that being a hearing for
the judge to give directions to facilitate the effective and expeditious conduct
of the trial. Section 8 (1) provides that the trial shall begin with the
preparatory hearing and section 8 (2) provides that arraignment shall
accordingly take place at the start of the preparatory hearing.
The issues on appeal to your Lordships’ House
While Mr. Robert Owen Q.C., who appeared for the Serious Fraud
Office, advanced the appeal on a narrow basis, it is right that their Lordships
should also address directly the reasoning of Tucker J., the Divisional Court
and the Master of the Rolls. It will be convenient to discuss the issues in the
following order:
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-
-
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whether there is a rule that a defendant in criminal
proceedings, who is on bail and does not otherwise surrender
to bail, does so by operation of law upon his formal
arraignment; -
if so, whether a different rule obtains under the Criminal
Justice Act 1987;
-
-
(3) whether any applicable rule can be varied or relaxed by order
of the judge or agreement between the parties or counsel:
(4) the correct disposal of the appeal.
(1) The effect of arraignment upon bail
The duty of a defendant who has been granted bail by the magistrates’
court is to surrender to the custody of the court at the required time and place.
Depending on arrangements at various trial centres a person desiring to
surrender to bail may be required to report to a particular office or a
particular official: see Director of Public Prosecutions v. Richards [1988]
Q.B. 701, 711. Through the years the arrangements have been simplified.
Nowadays a defendant is usually simply required to go to a particular
courtroom where he may surrender to a dock officer, if there is one, or to a
court official, such as the usher. It also has to be borne in mind that in a
small but significant number of cases a defendant will be required to surrender
to custody in a courtroom not equipped for the hearing of criminal cases, i.e.
without cells or a dock.
The present appeal raises the question of what happens when the
defendant, although present in court, is not officially asked to surrender but
is formally arraigned. Does he remain on bail after arraignment until the
judge orders otherwise? If the answer is in the affirmative, and there is an
adjournment, short or long, the defendant is presumably free to leave unless
the judge directs otherwise. That in my judgment is a position which is
calculated to create uncertainty, confusion and practical difficulties. There
will always be cases where the system for surrender before arraignment breaks
down. The situation demands a clear-cut rule. It is imperative that there
should be an objectively ascertainable formal act which causes a defendant’s
bail to lapse at the beginning of a trial. In my judgment that formal act can
only be the arraignment of a defendant. The arraignment of a defendant
involves (1) calling the defendant to the bar by name; (2) reading the
indictment to him; (3) asking whether he is guilty or not: Archbold: Criminal
Pleading, Evidence and Practice, 1995 ed.. vol. 1. p. 1/465. para. 4-84.
When a defendant who has not previously surrendered to custody is so
arraigned he thereby surrenders to the custody of the court. From that
moment the defendant’s further detention lies solely within the discretion and
power of the judge. Unless the judge grants bail the defendant will remain in
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custody pending and during his trial. This is a readily comprehensible system
which causes no problems for the administration of justice.
(2) Does a different rule obtain under the Criminal Justice Act 1987?
Given that section 8 of the Act of 1987 expressly provides that a trial
shall begin with a preparatory hearing, and that arraignment shall take place
at the start of the preparatory hearing, there is no justification for applying a
different rule to cases governed by the Act. There is nothing in the provisions
of the Act, or in its purposes, which in any way alters the legal effect on bail
of an arraignment. The reason for the general rule applies equally to cases
governed by the Act.
(3) Varying or relaxing the rule
Mr. Calvert-Smith, who appeared with Mr. Owen on behalf of the
Serious Fraud Office, informed their Lordships that there have been cases
where trial judges have ruled that, notwithstanding an arraignment, a
defendant will be deemed not to have surrendered. Mr. Calvert-Smith is
Senior Treasury Counsel at the Central Criminal Court. I readily accept his
assurance that such cases have occurred. In the present case the judge was
unaware of the agreement between counsel. But Mr. Owen argued that the
general rule, which before your Lordships’ House he did not challenge, may
validly be displaced by an appropriate ruling of the judge and, therefore, by
analogy pursuant to the agreement of the parties. I reject these submissions.
Given that arraignment operates in law as a surrender to custody, the judge
may not in law abdicate his responsibility in respect of the custody of the
defendant. He cannot deprive an arraignment of its legal effect. A fortiori
the agreement of the parties cannot divest an arraignment of its effect on bail.
Whatever may mistakenly have been thought and done in rare cases in the
past, the rule is that where a defendant has not previously surrendered to
custody his arraignment amounts in all cases as a matter of law to a surrender
by the defendant to the custody of the court.
(4) The disposal of the appeal
It is plain that the judge and counsel thought that Mr. Nadir had not
surrendered to custody. Their mistaken belief is devoid of legal
consequences. But at one stage Mr. Owen appeared to argue that it is a
distinguishing feature of this case that Mr. Nadir was not arraigned in a dock.
That cannot be right. The application of the rule cannot depend on the
vagaries of the physical arrangements in various courtrooms. It is sufficient
that Mr. Nadir was validly arraigned. It follows that Mr. Nadir surrendered
to custody, and that Mr. Guney simultaneously ceased to be bound by his
recognisance.
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Conclusion
I would dismiss the appeal.
LORD HOFFMANN
My Lords,
I have had the advantage of reading in draft the speech of my noble
and learned friend, Lord Steyn. For the reasons he gives I too would dismiss
this appeal
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