Law Report: Creation of sham arraignment was unlawful: Re Hollstein; Regina v Maidstone Crown Court, Ex parte Hollstein

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An arraignment of a defendant for the purpose of defeating the defendant's right to bail when a custody time limit had expired is not permissible and is a matter which is susceptible to judicial review.

The Divisional Court granted the applicant's application for habeas corpus and quashed the decision of Judge Waley QC in Maidstone Crown Court remanding the applicant in custody.

On 19 January 1994 the applicant was arrested in respect of a fire in a barn, charged with arson and held in police custody. On 1 February he was remanded in custody by justices. On 24 March he was committed in custody to the Crown Court for trial. On 11 July, the custody time limit of 112 days which was due to expire on 14 July, was extended by the Crown Court without opposition from the defendant to 22 July when the trial was due to start.

The trial did not start on 22 July when the custody time limit expired. The prosecution, due to an oversight, did not apply for a further extension. The applicant was not released. On 27 July the case was listed of the court's own motion before Judge Waley QC. The applicant submitted he was entitled to be released on bail. Judge Waley QC arraigned the applicant, who pleaded not guilty, and remanded him in custody for trial on a date to be fixed.

The applicant applied for a writ of habeas corpus and for judicial review of the judge's decision on the ground that arraignment was adopted by the court as a device to keep the applicant in custody and to defeat the applicant's right to bail. The applicant submitted that under section 4(1) and 4(8) of the Bail Act, where a custody time limit had expired, a person should be granted bail.

For the Crown, it was argued that the arraignment was valid and it was an integral part of the trial process and related to trial on indictment within the Supreme Court Act 1981 and therefore not amenable to judicial review.

James Turner (Berry & Berry, Tunbridge Wells) for the applicant; Nicholas Ainley (Treasury Solicitor) for the Crown.

LORD JUSTICE McCOWAN said that the Prosecution of Offences (Custody Time Limits) Regulations 1987 fixed the custody time limits and provided that the custody time limit between committal for trial and arraignment was 112 days. The regulations provided that when a custody time limit was about to expire an accused was entitled to bail in accordance to the Bail Act 1976.

The courts had attached importance to custody time limits and had given a narrow view of the 'good and sufficient' causes for extending time limits. There was force in the submission that the arraignment was a sham as no trial was fixed and no purpose was served other than foiling the provisions of the Bail Act.

It was not permissible for a Crown Court, whether on its own motion or on an application by the prosecution, artificially to create an arraignment with the deliberate intention of denying the defendant the fruit of the failure by the prosecution to obey custody time limits. If that had happened, the Divisional Court was under a duty to interfere and had power to do so. The application for habeas corpus was granted and the decision remanding the applicant in custody was quashed.

Mr Justice Gage gave a concurring judgment.