Malik v Central Criminal Court & Another

The Claimant applied for judicial review of the refusal of the Common Serjeant of London to have his bail application heard in public and his refusal to order the Claimant be produced at the application. The full court gave permission after it had been refused on paper. The Claimant, a man of previously good character had been charged with possession of ‘extremist’ material on his computer under s. 58(1)(b) of the Terrorism Act 2000. There had been two previous unsuccessful bail applications with the Claimant present. The Crown argued that it was normal practice at the Central Criminal Court to hear bail applications in camera.

Whether the bail application should have been heard in open court and the claimant produced at the application and the refusal of the Common Serjeant was ‘Wednesbury unreasonable.’

Quashing the refusal of the Common Serjeant and directing a rehearing: (1) The decision of the Crown Court regarding bail is susceptible to judicial review; (2) Rule 16.11 of the Criminal Procedure Rules did not create any presumption in favour of bail applications being heard in private; (3) The hearing of an application directly affecting personal liberty is a matter of public obligation rather than of judicial discretion. Courts may consider whether the interests of justice or the initiative of the parties requires departure from the norm; (4) Open justice on bail applications serves to discipline parties from making unfounded assertions in seeking or opposing bail if they face having to answer at trial what they have chosen publicly to assert: (5) For sound pragmatic reasons defendants do not have a right to be ‘produced’ at bail hearings at which they are represented.

An important decision in favour of open justice with regard to bail applications that will directly affect the day-to-day administration of Crown Courts when dealing with bail applications.