About this case:

• Citation:
  [2023] NIKB 58
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Lord Justice Treacy

Background

The applicant was arrested in August 2020, charged, and remanded in custody while awaiting trial. In December 2020, he sought compassionate bail to attend his sister’s funeral. Initially, a four-and-a-half hour bail was granted.

The Public Prosecution Service (PPS) appealed this decision to the High Court under section 10 of the Justice (Northern Ireland) Act 2004. The arguments were revisited and the appeal judge found that compassionate bail should not be granted.

The question for the court was whether the decision by the PPS to exercise its statutory right of appeal against the initial grant of compassionate bail was arguably unlawful.

The applicant’s case

The applicant’s argument was that following PPS’s reliance on s.10 of the 2004 Act to appeal against his compassionate bail, the applicant had no right of appeal on a point of law to the Supreme Court. Section 10(10) of the 2004 Act expressly prohibits an appeal against the decision of the High Court on an appeal brought by the prosecution.

However, if the High Court had refused compassionate bail following a refusal of bail by a district judge, then there would have been a right of appeal for both parties to the Supreme Court under section 41 of the Judicature (NI) Act 1978.

The applicant claimed a point of law of general public importance had been identified here, but this could not be considered by the Supreme Court due to s.10 of the 2004 Act. The PPS effectively deprived him of a right of appeal to the Supreme Court in relation to his application for compassionate bail.

Arguments raised by the PPS

The PPS argued that if this alleged error was somehow unlawful, the PPS was not the correct defendant, as it is not responsible for the lawfulness or otherwise of statutory provisions — that is the responsibility of the Department of Justice.

Further, PPS relied on the “presumption of regularity”, arguing that it can assume that enacted legislation is lawful and can be relied on unless declared unlawful. Further, it argued that this argument was now academic, as the funeral occurred several years prior.

Finally, it argued that there was no right of appeal to the Supreme Court under s.41 of the Judicature Act arising from a bail application, as bail applications are not a “criminal cause or matter” for the purposes of s.41(1)(a). The Department of Justice, the notice party in the case, echoed this point.

Consideration

The court noted that the Supreme Court recently considered the meaning of “criminal cause or matter” in the case of In Re McGuinness [2021] AC 392. The court then considered what kind of “cause or matter” a compassionate bail application would be, and where it fit in the justice system.

Examining bail, the court noted that typically a judge must be satisfied that the suspect has a case to answer, and must then decide whether to remand the accused in custody or to release him pending trial.

This first remand decision about the grant or refusal of bail is, the court found, “intrinsically linked to the criminal process”. This is because it arises close to the beginning of a criminal proceeding, and the person involved is appearing as a ‘defendant’ in a criminal court.

The initial bail decision therefore has, “the colour and feel of ‘a criminal cause or matter’”. Here, however, the issue was not the refusal of a substantive bail application, but rather, the refusal of compassionate bail.

The court accepted that these types of applications generally arise without notice, in relation to important family events. However, the context for compassionate applications is that substantive bail will have already been refused by a judge.

Can a right of appeal to the Supreme Court arise from a compassionate bail application?

Here, neither the appeal nor the bail application that gave rise to it involved any challenge to the original decision to remand the applicant in custody pending his trial. Nothing about this “matter” put the applicant in criminal jeopardy. He was already in criminal jeopardy months before the application was made.

His compassionate bail application did not challenge his position; it simply sought a compassionate variation to it, because of a family event. It proceeded on the basis that, if compassionate bail was granted, the applicant would return to prison voluntarily thereafter.

The court found that any extension of the meaning of “criminal cause or matter” would not have been justified here. If compassionate bail applications were captured by the phrase “criminal cause or matter” then the Supreme Court would likely be subject to routine compassionate bail application appeals.

These applications involve a fact specific balancing exercise that is well within the competence of the lower courts. They also do not focus directly on the process for bringing and determining criminal charges.

Here, therefore, the appeal against the grant of compassionate bail was not immediately and closely related to the applicant’s criminal case. The court highlighted that when he was pursuing bail in court he appeared as an ‘applicant’ for bail, not as a ‘defendant’, while the other side appeared as ‘respondents’ not ‘prosecutors’.

Conclusion

The court ultimately determined that nothing about the compassionate bail application or the appeal put the applicant in criminal jeopardy. They were not related to the criminal character of his trial, and would not have changed his overall status of remand prisoner.

As such, they did not qualify as a “criminal cause or matter” under the Supreme Court guidance in McGuinness, and they therefore did not give rise to any right of appeal to the Supreme Court.

The court noted: “Since an application for compassionate bail is not a criminal cause or matter it follows that no applicant for compassionate bail before the High Court on similar facts could qualify for a right of appeal to the Supreme Court under section 41 because that right is only available in criminal causes.”

As such, there was no issue of differential treatment, and the court agreed that the appeal was now academic.

For all these reasons the court refused leave and dismissed the application.